In Pakistan we take personal affront to criticism. The content of cries of despair becomes irrelevant. What provokes ire is how someone dare ask thorny questions. The tribal honour code that our institutions have imbibed directs that we must never wash dirty laundry in public.
Loyalty demands that we stand by our own, even when they are malfeasant. And within our elite clubs and institutions let-sleeping-dogs-lie forms an integral part of the ethic of success. So you critique the justice system, but at your own peril.
This partly explains why despite there being broad consensus that our justice system is broken and inspires little hope, there is no debate on how it is to be fixed and who is responsible for fixing it.
Given controversies surrounding judicial appointments, near absence of judicial accountability and excruciating experiences of litigants in their face-off with the dispensers of justice, have we begun confusing judicial independence with impunity?
Judicial appointments often attract criticism as some hopefuls are disappointed and others get lucky. But it is extraordinary for the high court bar of a province to formally boycott the oath-taking ceremony of new judges as happened in KP recently.
According to Tax Pakistan (a social media account cultivating awareness about taxpayers in Pakistan), out of the 12 newly appointed high court judges in KP and Punjab, over the last five years two judges filed no tax (or returns) and one paid a sum-total of Rs1,000.
No criteria or credentials have been specified to guide judicial appointments.
Were these judges unaware of their obligation to file taxes and/or tax returns? Is ignorance of the law a valid excuse if you are a judge-to-be? If they were aware of the law, did they misstate their earnings to evade taxes? If not, did they not have a practice profitable enough to generate taxable income? What basis does the Judicial Commission use to determine the probity and merit of judicial nominees if clear manifestations of success of their legal practice such as tax records are irrelevant?
Is there one set of principles that judges apply to others in exercise of judicial review powers and another when it comes to discharge of their own administrative responsibilities? Have we not seen parliamentarians disqualified by courts for misstating their educational qualifications under the Representation of Peoples’ Act? Is rectitude a lesser requirement for holding judicial office?
To curb abuse of authority and nepotism, our superior courts have rightly scrutinised the criteria and processes for making executive appointments.
Recent landmark cases (eg Ashraf Tiwana, Mohammad Yasin, Barrister Sardar Mohammad Ali) have now settled that appointment to a public office must be through an open, fair, transparent and participatory process.
Would the appointment process for judges meet the standard set by judges themselves for executive appointments?
In UK, Supreme Court appointments are made under the Constitutional Reform Act, 2005. While the legislation prescribes no process, the selection commission voluntarily advertises vacancies even at the apex court level in the interest of transparency.
This is exactly the approach our superior courts have mandated for executive appointments. But to this day no criteria or credentials have been specified to guide judicial appointments. Why the exceptional treatment when it comes to judicial appointments?
During the inglorious 18th Amendment cases, irked by legislature’s audacity to contemplate oversight over judicial appointments our apex court came dangerously close to striking down parts of the constitutional amendment.
The parliament was then forced to re-amend the Constitution on the court’s direction. The odd time that the parliamentary committee rejected the Judicial Commission’s nominees, the Supreme Court took up the matter on the judicial side, overruled the committee’s decision and ordered the appointment of Judicial Commission nominees.
The parliamentary committee is now completely redundant. Notwithstanding the text and spirit of Article 175-A of the Constitution, judicial appointments still work the way they always have since the Al Jihad case. Judicial leadership agrees on judges-to-be through informal consultations shrouded in secrecy and the constitutional mechanism is then used as a rubber stamp. What would the outcome be if such an exercise of discretion could be challenged on the judicial side before any of the few brilliant judges keeping the judicial ship afloat?
The story of judicial accountability is no different. When was the last time the Supreme Judicial Council held a judge to account for misconduct? Has no superior court judge ever misconducted himself or is the SCJ’s inaction a product of the judiciary’s esprit de corps? What about the district judiciaries that fall under the administrative control of high courts?
Can superior court judges (in their administrative capacity or as appellate judges or even citizens) not see what the average Joe does? That the lower judiciary is both corrupt and incompetent?
According to the Law Commission, there were 1,559,803 cases pending across Pakistan on Jan 1, 2013. The number had gone up to 1,709,345 by Jan 31, 2013. On Dec 31, 2013, 1,193 out of 2,365 sanctioned posts in Punjab’s district judiciary, 81 out of 446 in Sindh, 112 out of 450 in KP, 89 out of 273 in Balochistan and 48 out of 101 in Islamabad lay vacant. We have overworked judges hearing cases into the evening in Islamabad High Court. But three out of seven posts in the court are still vacant. Is the executive to blame for these damning statistics?
The chief justice of Pakistan heads the Law Commission, the National Judicial Policy-Making Committee, the Judicial Commission and the Supreme Judicial Council.
Given our judiciary’s advanced sense of territoriality in marking and defending its exclusive institutional domain, together with judges sitting atop all key institutional processes endowed with the responsibility for judicial accountability and reform, isn’t our judiciary as an institution primarily responsible for the dismal state of our justice system?
Much of our angst today is caused by the fact that we live in a state and society where justice is not meted out in accordance with the law. It is time for good men in robes to rethink their responsibilities while heeding Edmund Burke’s warning: “The only thing necessary for the triumph of evil is for good men to do nothing.”
The writer is a lawyer.
Published in Dawn, November 17th, 2014