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This month, Pakistan’s superior judiciary completes two years of ‘independence’ since the restoration of Pakistan Chief Justice Iftikhar Muhammad Chaudhry. This has been an eventful time, with tussle between the judiciary on the one hand and the federal government and the parliament on the other being at an all time high. Barely a day has passed when the news media has not carried reports about one impending collision or the other between these institutions.
But such regular sparring, no matter how significant in many other ways, is hardly the barometer to gauge the independence of the judiciary. It is a universally acknowledged principle that a judiciary’s independence depends on, among other things, the level of transparency and accountability in the mechanisms used to appoint and remove judges. It also depends on the degree of independence enjoyed by a court’s individual judges which, in turn, depends on how free they are from the pressure of their peers besides other things. In the last two years of Pakistan’s judicial history, on both counts independence of the judiciary seems to have been seriously compromised.
The issue of judicial appointments has been the most contentious. Until the enactment of the 18th constitutional amendment in 2010, the power to appoint judges to the Supreme Court (SC) was enjoyed solely by the Chief Justice of Pakistan (CJP), a system quite contrary to what the Constitution had suggested. For appointments to the high courts, the CJP shared some power with the chief justices of those courts. This system was mainly based on how in al-Jihad Trust case of 1996 the Supreme Court interpreted the constitutional provisions regarding the appointment of judges.
The plain wording of those provisions, which now have been replaced through the 18th and the 19th amendments, gave the President – acting on behalf of the government – the power to appoint judges to the high courts and the SC. In the SC’s case, the President was supposed to “consult” the CJP, and in the case of appointments to the high courts, the President was supposed to “consult” with the CJP as well as the chief justices of the respective high courts and the governors of the provinces concerned. What the al-Jihad Trust judgement did was that it held these consultations binding upon the President who would have to give sound reasons – which were made justiciable – for not accepting the judges’ opinion on the appointments. The judgement has been criticised for, among other things, reading into the Constitution what its plain words did not suggest.
The years following that case are seen as a time when the superior judiciary began to be closed to outsiders. Gradually, it was seen with suspicion as an institution that thrived on its closed-door policy and secretiveness, especially with regard to judicial appointments, without being held accountable. It was for this reason, among others, that a resolution passed by the Pakistan Bar Council in 2001 prescribed a mechanism for judicial appointments through a commission, essentially in the same spirit as the one prescribed in the 18th Amendment.
The 18th Amendment has created two forums for the appointment of judges to the superior judiciary: a judicial commission with representation from the judiciary, lawyers and the federal government, responsible for recommending names for appointments; and a parliamentary committee to approve or reject these names. This has made the role of the CJP subject to broader input from the judiciary, lawyers, the executive and the parliament.
The Amendment was challenged on the grounds that it infringed on the independence of the judiciary, a basic feature of the Constitution. The SC, after hearing the case for about five long months, directed the parliament to amend the mechanism, even though the court did not enjoy any constitutional power to issue directions to the parliament requiring it to amend the constitution as deemed fit by the court. The parliament, however, has broadly complied with these directions by incorporating through the 19th amendment a greater role for the CJP and other judges. The parliamentary committee now has to state reasons for rejecting the judicial commission’s nominations. The matter, however, does not seem to have settled down yet.
During the past two years, judicial appointments have remained a bone of contention between the government and the judiciary as well as various groups and lawyers’ associations. The foundation of the dispute was laid in the SC judgment of July 31, 2009, given in a case filed by the Sindh High Court Bar Association (SHCBA). The order rendered more than one hundred judges working in various superior courts jobless, including not only those who had taken oath under the Provisional Constitution Order (PCO) upon the imposition of emergency on November 3, 2007 but also those who were later inducted as new judges and had taken oath under the 1973 Constitution.
One reason for unseating the new judges was stated to be that they had been appointed by an unconstitutional CJP, Justice Abdul Hameed Dogar. This was unprecedented and was an insufficient and unconvincing argument. The case also did not lay down a new legal principle, distinguishing it from the al-Jihad case in which the appointments of several judges were declared illegal on the basis that the CJP consulted in their case was an acting CJP and not a duly appointed one. Yet the additional judges appointed in such a manner to the high courts were stated to be entitled to have legitimate expectancy of appointment as permanent judges and could be declined a permanent position only after their individual cases were reconsidered by the duly appointed CJP. This time around, however, the judiciary seems to have been led by the power of popular anti-dictatorship sentiments, rather than the power of the law and the argument, to try to purge itself of all ‘impurities’.
The contentious matter of appointments reached its climax in January 2010 when Justice Chaudhry decided to appoint Justice Khalilur Rehman Ramday as an ad hoc judge of the SC. President Asif Ali Zardari first withheld Ramday’s name based on the government’s position that the appointment of a retired SC judge as an ad hoc judge was in violation of Article 182 of the Constitution as well as the principle laid down by the SC in the al-Jihad Trust case. Under Article 182, ad hoc appointments are envisaged in addition to the sanctioned strength of the court and in the al-Jihad case it was clearly stated that such appointments only cater for temporary and extraordinary situations in which the number of judges has to be increased – maybe because of the large number of pending cases – after the sanctioned strength of the SC is filled with permanent appointments.
The lack of transparency was also visible in the case of elevation to the SC of two senior-most judges of the Lahore High Court (LHC), Justice Saqib Nisar and Justice Asif Saeed Khosa. If they had remained at the LHC, it would have helped the high court manage its affairs better in view of the fact that, without them, it was left with an overwhelming majority of junior judges, most of whom were not even confirmed, and the situation remains so to date.
Certain other cases adjudicated during the last two years have reinforced the impression that the independence of the judiciary comes into play only to the extent when it takes on the government. Whether individual judges were also acting without any peer pressure remains a matter of speculation.
And even some leading lawyers did speculate. It was after the National Reconciliation Ordinance (NRO) judgement in December 2009 that Asma Jahangir, now president of the Supreme Court Bar Association, wondered how all 17 SC judges reached the same decision in a matter that should have led to several differing opinions even if they agreed in essence to declare the NRO unconstitutional. Jahangir has been seen repeating the same complaint after the recent unprecedented unanimous resolution passed by all the judges of the SC that Ramday and Justice Rehmat Hussain Jaffery be retained as ad hoc judges. The constitution provides that in case there is a need for an ad hoc judge, the CJP will recommend a name to the President after consultation with the judicial commission. But for unstated reasons, the judges found it appropriate to pass a resolution. Did this not amount to an attempt at subverting the Constitution? Justice (retd) Tariq Mehmood, an outspoken critic of the judiciary, questioned the wisdom of the move and wondered how the judges in the judicial commission could be expected to raise an objection to the proposal of appointing the two as ad hoc judges after the unanimous resolution passed by the SC judges in its favour.
Both Jaffery and Ramday, especially the latter, are seen as close associates of the CJP and have often been seen on the same bench as he presides, quite often along with another ad hoc judge Justice (retd) Ghulam Rabbani. It may be recalled that Ramday played an important role in restoring the present chief justice when the latter was made dysfunctional after General (retd) Pervez Musharraf had filed a reference against him before the Supreme Judicial Council in 2007. It may also be recalled that Ramday was also given preference in 2010 for appointment as an ad hoc judge over other recently retired judges such as Sardar Raza Khan who belonged to Khyber Pakhtunkhwa.
Dissenting opinions are often seen as a barometer of how independent a judiciary is.
During the hearings of petitions challenging the 18th Amendment, it was clear that some judges were not at all convinced by the lawyers assailing the Amendment. It was quite surprising, then, to see how all the judges came up with the same short order without a single dissenting note. Those who attended the court hearings observed that those lawyers arguing against the challenges to the amendment were finding it difficult to complete their arguments without being continually interrupted by Ramday who, in his widely reported remarks during open hearings, made it well known how contemptuously he viewed the new mechanism for judicial appointments and repeatedly described it as “an attack on the person of the sitting chief justice”.
In a parallel development, judges who took oath under Musharraf’s 2007 PCO (often referred to as PCO-II) have been proceeded against in an unprecedented fashion. They were found guilty of taking the oath in violation of an order allegedly issued on November 3, 2007 by a seven-member bench of the SC. The 2009 SHCBA case declared them non-functional due to their alleged misconduct. According to Jahangir, appropriate course would have been to send their cases to the Supreme Judicial Council under Article 209 of the Constitution and let the law take its course. But for some opaque reasons the SC seems to have taken upon itself to play all the constitutional roles, she says.
In a similarly unprecedented move, a non-functional judge of the Peshawar High Court, Justice Jahanzeb Rahim, has issued a show cause notice to four serving SC judges who had charged the PCO judges with contempt, stating that a high court judge is not a subordinate of a supreme court judge and high court judges enjoy immunity from trial at the SC. Even though, his notice has been called ineffective because of his being a non-functional judge, the entire case involving the PCO judges seems to have compromised both the independence of the judiciary and the constitutional course of action.
During the last two years, the SC has also remained entangled in purging the country of corruption and in an effort to provide good governance by issuing suo motu notices and taking up cases of public importance. One such case in early 2010, concerned the promotions of senior civil servants which the court declared illegal. In another, more recent, case it declared extensions of retired civil servants illegal on the grounds, among others, that this promotes nepotism and becomes a barrier in the promotion of other in-service civil servants. A fair question has been asked in response to this: why has the judiciary not applied the same principle to itself?
This tendency to create exceptions is not new to the judiciary. In 2009, Justice (retd) Rana Bhagwandas accepted the position of the chairman of the Federal Public Service Commission and remains in the position to date. This has taken place despite the fact that only months before he joined as the commission’s chairman, the National Judicial Policy (2009) announced that no retired judge of the superior courts shall accept an appointment that is beneath his status or dignity.
Another area that has consumed the time and energy of the judiciary and has put its independence and credibility at stake is issuing suo motu notices for the stated aim of inducing good governance. It does not take a rocket scientist to understand how excessive judicial activism undermines the independence of a judiciary. The more a judiciary reacts to popular sentiment, the more prone it will become to deciding cases on the basis of what the public opinion wants and not on the basis of what the law says and justice commands. Also, by allowing itself to be influenced by popular opinion, the judiciary permits outside interference in its affairs as well as lack of independence in dispensing justice.
Take, for example, the case of sugar prices. In 2009, the LHC took suo motu notice of rising sugar prices and suddenly fixed the price of sugar at 40 rupees per kilogramme when its market price was 60-70 rupees. The producers appealed to the SC, which upheld the LHC decision. This only made matters worse, leading to the sudden disappearance of sugar from the market and an increase in its price to almost double of what it was before the high court intervention. It is in this context that prominent SC lawyer Feisal Naqvi wrote in an article published in The Friday Times on March 19, 2010: “Unlike elected governments who are subject to recall by the masses, there is no equivalent mechanism for correction by the public when it comes to judges. If the judiciary becomes overly fond of the spotlight, there will come a time when the same forces of public passion that today shout slogans in favour of judicial independence will instead riot in opposition. It would be better for all concerned if that day never came”.
The well-wishers of the judiciary like him had never expected that the institution of the judiciary, which was restored on the principles of supremacy of the Constitution and judicial independence, would get mired in such controversies. When this institution becomes controversial, its reputation is damaged and public confidence in its impartiality suffers. A lack of time-tested principle of judicial restraint, perhaps, has brought the judiciary to its present state of affairs.
— Asad Jamal is a Lahore-based lawyer
