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THE goal of establishing a functional justice system in Pakistan seems to have withered on the vine. The problem with associating ideals, such as a just court system, with individuals, such as former chief justice (CJ) Iftikhar Chaudhry, is that with the reputation of the individual tarnished the ideal stands sullied as well. Speak about the rule of law today and you find anyone who has had a brush with the justice system reaching for his gun, and the average Joe mocking the lawyers’ movement and its wages such as Arsalan Iftikhar, the Tycoon.
Under CJ Chaudhry, the pendulum swung to an extreme. There was an urgent need for correction when he left and the return of sanity and restraint under CJ Tassaduq Jillani was welcome. But can our Supreme Court not combine restraint, in determining the autonomy and jurisdiction of other state institutions, with activism in reviving the efficacy and fairness of the judicial institution?
The failure to decide election petitions within a four-month period might be no conspiracy against the PTI, but no cases ever getting decided within mandatory periods provided by the law sure is a conspiracy against all Pakistanis. When terror suspects are let go by courts we blame investigators and prosecutors. For antiquated laws on our statute books, we censure politicos for not introducing legislative reform. Are judges at all responsible for fixing the rotting monstrosity that our court system has become?
The CJ is chairman of the Law Commission, a statutory body established to oversee improvement, modernisation and reform of laws to bring them in accord with the changing needs of our society. The CJ is also chairman of the National Judicial Policymaking Committee, another statutory body set up to ensure improvement in the capacity and performance of the administration of justice.
Reform will only result from a mindset and behavioral change at the highest level.
As head of the Judicial Commission, the CJ drives the judicial appointment process. One can’t be considered for a judicial office unless his/her name is introduced by the CJ. The CJ heads the Supreme Judicial Council and thus no judge can be removed unless the CJ sets the process in motion. The CJ also exclusively decides the composition of benches in the Supreme Court and determines which case gets fixed when and before which bench.
Given such monopolisation of authority by the office of the CJ together with our judiciary jealously guarding its turf (remember the parliament being arm-twisted into passing a constitutional amendment over the judicial appointments mechanism?), can judicial reforms even be initiated except by the CJ?
Concentration of power in the CJ’s office and a culture of sycophancy and undue deference to those above in the food chain have transformed our federal judiciary into a unitary one. The chief justice is not the first among equals but sits atop a hierarchy that allows him to influence the judicial outcome of matters through the exercise of administrative powers. This gravely diminishes the autonomy of the individual judge and consequently that of the judicial organ on the whole.
That an incumbent CJ is a judicious person unlikely to abuse powers is beside the point. If distribution of power within an institution makes it susceptible to ready abuse, the institution remains at the mercy of individuals. Allegations of abuse of power by CJ Chaudhry during election 2013 rest on speculation about the ex-CJ’s intent only because it is conceivable that he could have influenced electoral outcomes if he wished to.
We need urgent judicial reforms in the lower and superior courts. Whether or not trickle-down works, trickle-up certainly doesn’t. Reform will only result from a mindset and behavioral change at the highest level.
On the jurisprudential plane, there is no objective test for the use of suo motu and Article 184(3) powers. This is why Imran Khan keeps asking what justifies a suo motu over recovery of two bottles of wine at an airport and not over allegations of massive electoral fraud. Rule of law rests on legal certainty. It is essential for the Supreme Court to constitute a larger bench and clearly lay out the basis for exercise of suo motus so that they get delinked from the whims and wishes of an incumbent CJ.
Is it not unfathomable that in this day and age, the apex court is being run without non-discretionary court and case management systems? Every day we find our superior courts bending the executive’s ear for the arbitrary exercise of authority. Yet there’s nothing more arbitrary than the manner in which benches are constituted and cases fixed. Can such matters be regarded as falling within the personal prerogative of a chief judge in 2014?
On Dec 18, 2009, the Supreme Court decided the Habib-Makro case, cancelled the lease granted to the Army Welfare Trust over a playground in Karachi and ordered that the Makro store built thereon be demolished. On March 17, 2010, while the author judge was posted outside Islamabad, CJ Chaudhry fixed the review petition against the order before his bench and granted a stay. The review was dismissed on May 21, 2013 by the bench headed by the author judge, but the Supreme Court order hasn’t been complied with.
In December 2013, the petitioner filed a contempt application to seek the order’s enforcement, which is yet to be heard. Now whether the order is not being enforced and the contempt petition not being heard because the interest groups aggrieved by the judgement are too powerful or because the case management system at the apex court is inefficient is open to conjecture. But should it be?
Then there is need to amend the Judicial Commission’s rules and do away with the veto afforded to the chief justice over the introduction of names of judicial candidates. Our superior courts have been crying themselves hoarse over the need for a transparent, credible appointment process for executive appointments that regulates and minimises discretion. How can courts pass such strictures if they don’t apply the principles espoused to judicial appointments?
The challenge of leadership for our new CJ is to push the agenda for institutional reform starting with structuring and regulating the powers of his own office.
The writer is a lawyer.
Twitter: @babar_sattar
Published in Dawn, July 14th, 2014
