IT is not easy succeeding someone as polarising as Iftikhar Chaudhry. Those who love him would want Chief Justice Tassaduq Jillani to be his clone. Those who hate him would want the new chief justice to be a complete opposite.

Building on the strengths of today’s Supreme Court and doing away with its weaknesses makes most sense. Except that it would leave both the aforementioned camps dissatisfied. The first challenge for CJ Jillani would be to not let Chaudhry’s legacy define his term or seek to be popular.

We need the Supreme Court to go back to being a court of law as opposed to being a peoples’ court. It will always remain a peoples’ court to the extent that it is a fair, efficient and judicious arbiter of the law. But it must never aspire to be the peoples’ court that panders to transient public sentiment or engages in popularity contests with an elected government. As pillars of the state, the executive and the judiciary are neither rivals nor replacements of each other.

The Supreme Court is and must remain the protector of the law and Constitution and a fearless defender of the rights of the individual. Lord Acton has been proven right. Power tends to corrupt and absolute power corrupts absolutely. Thus the Supreme Court and the high courts must continue to remain effective fetters on abuse of power by the executive. But what the Supreme Court must not do is succumb to the misconceived suggestion that it can be a saviour of the ‘system’.

In approaching the problem of systemic failure the ambition of the Supreme Court must be more modest and limited to resurrecting the judiciary. The next five or six years will bring along as many chief justices. The limited tenures ranging from less than a year to a maximum of two can be turned into an asset if CJ Jillani sets an agenda for reform in consultation with other senior judges who will be his successors so that such reforms have a buy-in and are seen through till 2020. The broad areas of reform are institutional, jurisprudential, and behavioral.

If district courts are not brought out of the woods the Supreme Court will remain at best a pressure valve or a forum for catharsis that it became under CJ Chaudhry, unable to quench the judicial needs of ordinary Pakistanis. And in reforming the lower judiciary the patchwork of the sort that comprised the National Judicial Policy of 2009 is a non-starter. If we wish to introduce efficiency and accountability within the justice system we must first undertake an objective needs and performance assessment to ensure that the proposed solutions actually address problems.

Saying that we need more judges is not good enough. We need to calculate the actual case load and corresponding disposal time and then come up with an optimal docket size for each court in line with the desirable disposal time to specify the number of judges needed. We need automated and non-discretionary court management systems. Why continue with a manual system for case assignment? If administrative discretion within the executive is to be structured to prevent its abuse, why treat administrative discretion of a judicial office differently?

If Lord Acton’s assessment of the influence of power is correct, would it not be wonderful if the chief justice were to share more widely the administrative powers of his office in such manner that it no longer remains susceptible to abuse to influence the timing or outcome of cases? Giving up monopoly over entrenched power is not easy for a mortal even when it is the right thing to do.

If the power to constitute benches and affix and assign cases were to be delegated to a non-discretionary system overseen by three senior-most judges of the Supreme Court, would it not add more transparency and consistency to the court’s functioning? And if the chief justice were to renege his veto over judicial nominations and allow for a wider pool for consideration, would judicial appointments not become more transparent?

In the realm of jurisprudence, there is urgent need to revisit the manner of exercise of jurisdiction under Article 184(3). This jurisdiction must be exercised in matters where the problem relating to abuse of fundamental rights is systemic (such as in the missing persons’ case or the continuing failure to provide education to children across Pakistan), and either falls beyond the jurisdiction of a single high court or needs the highest court to throw its collective weight behind a matter to fill the gap between law and its implementation.

In defining boundaries of 184(3), the Supreme Court will need to ensure that its discretionary use by any chief justice doesn’t drag us back from rule of law to rule of men. While specifying the scope and extent of use of the inquisitorial process, the court must strengthen independent investigation and prosecution and not assume the functions itself that undermines its separation from these executive functions. The Supreme Court also needs to consider the nature of relief to be granted in suo motu cases to ensure that it doesn’t pre-judge the accused without a trial of facts. Much of this requires a behavioural change. With the departure of CJ Chaudhry we must unlearn lessons and undo exceptions nurtured during the lawyers’ movement. Judicial independence and security of tenure are rights guaranteed by the Constitution and not privileges to be physically defended by lawyers as foot soldiers or the media as patron. The Supreme Court needs to go back to restoring a polite but distant relationship with the media and the bar as mandated by the judicial code of conduct and the lawyers’ code of etiquette.

The desire to amass popularity and power, while natural human desire, doesn’t belong to the judicial office. A judge who sees judicial authority as power and not responsibility and its exercise as a route to popularity cannot be a neutral arbiter of the law. Let us hope CJ Jillani will help usher back the age of judicial propriety that now seems like legend.

The writer is a lawyer.

sattar@post.harvard.edu

Twitter: @babar_sattar