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Judging The Judges

The people of Pakistan had helped restore the present judiciary through great sacrifice in blood and treasure. The HRCP and ICJ reports serve as a reminder that their job is not done yet.

Judging The Judges
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In Pakistan, the 2007-9 movement for the restoration of judiciary— dubbed the lawyers’ movement— culminated in successfully reinstating the judges of the superior judiciary, most notably the Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry, who had been illegally and unconstitutionally deposed in March 2007 by the then military ruler General Pervez Musharraf.

The movement was a fairly popular one with its original base expanding from the bar associations to eventually include general public and the leading politicians like the late Benazir Bhutto and Nawaz Sharif. With the campaign turning into a mass urban movement the expectations from the judges— once they were restored— also rose exponentially. The most prominent lawyer- leader, Aitzaz Ahsan, who also served as the deposed Chief Justice’s attorney, even composed these sentiments, coveting justice for all in a welfare state, in verse that instantly became the anthem of the movement.

The overwhelmingly urban nature and the single-point agenda of the movement meant that the majority of the Pakistanis who still live in the villages did not benefit politically from its success. Despite the sloganeering for the common man, including rural population in the said anthem, for example, there were no tangible political goals to be achieved. However, the broader promise of judicial reform and independence of judiciary were obviously the goals that would impact everyone.

It has been over three years since the Chief Justice Chaudhry rightfully reoccupied his office. With the restored and assertive Supreme Court taking up scores of high profile cases, the obvious question is to paraphrase Quis custodiet custodiens—who will guard the guards—to ask: who will judge the judges? Fortunately, both lay and expert observers are now taking stock of the success and failures of the struggle. The independent Human Rights Commission of Pakistan (HRCP) reviewing the laws and law-making, administration of justice, law enforcement and fundamental freedoms in its 2011 report, has noted:

“While this expanded role gained the SC immense popularity, it also raised many questions regarding the impact of frequent and extensive invocation of suo motu powers on the courts’ normal work, the difficulties in avoiding the side effects of selective justice, and the consequences of the executive-judiciary or parliament-judiciary confrontation.”

The HRCP seems to be of the opinion that the superior judiciary’s overzealous use of the suo motu powers as well as entertaining petitions by the so-called interested parties— the definition of remains nebulous and ever-expanding— has taken up time and energy of the courts to the detriment of other cases. In addition to— and often at the expense of— its normal function as the court of appeal, “the country’s apex judicial forum was also functioning as an ombudsman’s office, as an administrative court, as an anti-corruption tribunal, as a supreme investigation agency, and as the sole defender of not only the constitution but also of public morality”. In a country where the backlog of cases is to the tune of millions, by seizing itself with issues cherry-picked from or by the media or thrown in its lap for political reasons, the Supreme Court has clearly spread itself too thin.

In addition to the domestic watchdog groups, the lawyers’ movement and the judges’ restoration had drawn significant international support. In 2007 the Geneva-based International Commission of Jurists (ICJ) had sent a mission to Pakistan to evaluate the situation. As a follow up to its previous undertaking, the ICJ has now published a report with the objective “to assess and report on the nature and extent of this Rule of Law crisis and to make legal and policy recommendations in accordance with international principles and standards on the independence of the judiciary and the separation of powers”.

Mr Stefan Trechsel and Mr. Graham Leung of the ICJ traveled to Pakistan last fall to meet the serving and retired judges, lawyers, politicians and officials to compile a comprehensive state of the judiciary account. Interestingly, and to the ICJ’s dismay, the Chief Justice Iftikhar Chaudhry declined to meet this team despite their multiple requests. The report provides an excellent cross-sectional view of a broad range of judicial issues but at least three areas stand out, viz.

  1. the appointment of judges
  2. suo motu cases including their interplay with the media, and
  3. separation of powers.

The debate on these matters remains rather muffled in the domestic media and in several instances the judges have swiftly muzzled and/or threatened senior lawyers like Asma Jahangir with adverse professional consequences. It is in this context that the critique by a pre-eminent international judicial body carries tremendous weight.

Discussing the appointment of judges the ICJ report observes that while not illegal or unheard of “it is only infrequently that a Court takes issue with the highest normative text of the State, i.e., the Constitution” and in case of the 19th Amendment the Supreme Court seems to have done away with the principle nullus iudex in causa sua [i.e. no-one should be a judge in their own cause] and not only adjudicated a matter in which it was an interested party but also “concluded that in a conflict between Parliament and the Judiciary, the latter ought to have a stronger position”.

Another concern raised is the judiciary's attempt to keep the role of the political organs in the judges’ nomination very circumspect on the pretext of safeguarding against interference with its impartiality. Citing international examples, the ICJ seems to suggest that assumption (on part of the Pakistani judiciary) that any involvement of political institutions in judges’ appointment is incompatible with the rule of law and the respect for human rights, is rather disingenuous. The report notes that the remote possibility of the parliamentarians rejecting, after jumping through many hoops, a nominee does not have potential to upset the judiciary, and particularly Supreme Court’s, independence. On the contrary, the report fears a shift in balance of power to the advantage of the judicial branch if it purports to control and possibly overrule the findings of the Parliamentary Committee.

This imminent problem with checks and balances assumes importance in view of further observations of the ICJ in regards to the present Chief Justice constituting the benches and assigning the cause list. While not endorsing the charges, the ICJ did note:

” We heard insinuations that the Chief Justice picked colleagues who would determine cases or reach decisions in the way he would have himself decided the case. There were also suggestions that judges who were considered partial to his views in a given case would be given preference for selection in hearing a matter”.

The ICJ very pertinently observed the examples of the US, German and Swiss supreme courts where constituting the bench is not done by the chief justice.

The allegations of the Chief Justice stacking the deck notwithstanding, the ICJ found serious issues, including procedural ones, with his exercise of the suo motu powers. Making an observation about the Chief Justice’s “excellent relations with the journalists”, the report calls his practice of taking up issues upon media reports as something which has an “element of chance to the practice which is hardly compatible with the rule of law”. While not condemning the use of media by the judiciary, the ICJ does say that “if media publicity is sought to popularise the judges to undermine other institutions unduly then it could be of concern”.

Another area of concern highlighted due to the suo motu practice is the judiciary inevitably trampling on the executive’s powers. The report notes: ” In the way the Supreme Court manages cases taken up suo motu, it cannot be overlooked that occasionally it appears to act like the executive.” But as the ultimate task of implementing the court decision falls upon the executive and in many instances leads to resentment in the latter. On the contrary a non-implementation by the executive leads to the ongoing judicial insistence leading to a vicious circle the ultimate casualty of which is the very concept of separation of powers.

The superior judiciary’s preoccupation with high profile cases it has been adjudicating suo motu has also had a “negative effect on the ordinary business of the Supreme Court. There appears to be a growing backlog of cases, due to the fact that the capacities of the institution are absorbed by the superseding cases of actuality taken up ex officio by the Supreme Court”. Also the ‘paternalistic’ and intrusive attitude of the Supreme Court has had a negative impact on the high courts and the subordinate judiciary, leaving the latter two frustrated. The practice thus is “not easily reconciled with the concept of judicial independence”.

The ICJ report provides policy and procedural recommendations to rectify what is increasingly becoming an imbalance of power between the parliament and executive on the one hand and the judiciary on the other. It asks the Supreme Court Bar Association of Pakistan and the Pakistan Bar Council, as lead bars of the country, to play a vital role in studying the situation.

The people of Pakistan had helped restore the present judiciary through great sacrifice in blood and treasure. The HRCP and ICJ reports serve as a reminder that their job is not done yet.


Dr Mohammad Taqi is a regular columnist for the Daily Times, Pakistan. He can be reached at mazdaki@me.com or via twitter @mazdaki

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