EVEN as we envision the ideal of judicial independence, there are often concerns of the executive attempting to bring a fiercely independent judiciary to heel.
Such rational assumptions, as well as precedents in history, have led to the creation of institutional mechanisms aimed at insulating the judicial setup from unnecessary exposure to external dependencies and influences.
Pakistan is no exception to such attempts, with the judiciary retaining effective control over judges’ appointments, their removal and matters pertaining to judicial accountability and conduct. However, in evolving these mechanisms, what has been neglected is a set of internal influences that equally threaten to undermine the existence of an independent judiciary.
In a recent judgment, the Supreme Court, reviewing one of its prior pronouncements, had given further directives for the overhaul of Sindh’s civil service structure. Although the measures delineated were applauded by many as necessary, others questioned the manner in which they were taken.
In expressing concern over the lack of implementation of its verdicts, the court, by taking names, passed what the legal fraternity is referring to as strictures against certain Sindh High Court judges, whilst also alluding to the latter’s actions being fit for initiation of proceedings for the removal of judges. It also issued directions to the Sindh government to fully implement its judgment without regard to those restraining orders issued by the high court “in defiance” of the Supreme Court judgment. From the language, it appears it was left to the government to determine which orders were “in defiance” of the directives.
The strength of the courts lies in their unity, not discord.
The implications of such a move are worrying. Firstly, such strictures, rather than being productive, have a chilling effect on the independence of a judge vis-à-vis his peers and seniors. A possible effect of passing such strictures, whether or not intentional, would be to put the high court judges in a position whereby they feel obligated to pass judgments they feel their peers would approve of as opposed to rendering decisions strictly in accordance with the law.
Also, the ability of judges to differ from the Supreme Court in the most obvious of cases, or in scenarios not envisioned by the Supreme Court in its judgments, could perhaps suffer.
The difficulty of such an approach is better understood from the fact that of late, the Supreme Court has been issuing verdicts containing broad-ended directives aimed at macro-level institutional corrections. In such circumstances, the role of the high courts in sifting through the contents of generic directives to determine what comes within its purview becomes ever more critical, especially if one is to avoid injustice to someone who is unable to approach the Supreme Court directly.
In the presence of such strictures, independent-minded judges may find it difficult to render independent decisions, if there is a possibility of the adjudication having severe consequences.
Secondly, by issuing directions to the government to implement its judgment without letting restraining orders of the high court come in the government’s way, the Supreme Court appears to have set the dangerous precedent of preferring to put its faith in the executive’s discretion as opposed to that of the judiciary.
This has created a situation where disregard of high court orders may ironically find refuge in the Supreme Court itself. In essence, in the case of such disregard, if the high court initiates contempt proceedings against the executive, the judiciary may find itself in an embarrassing position where the government could possibly justify flouting judicial orders on the touchstone of a Supreme Court directive demanding exactly such action by the government.
Coupled with Article 187 of the Constitution, which gives the high courts jurisdiction to execute Supreme Court orders as if passed by the relevant high court itself, such direction does not seem to be in consonance with the letter and spirit of the constitutional provision or the principles of judicial independence.
Such strictures have a tendency to create discontent within the judiciary’s ranks, and its members may come to view the Supreme Court’s actions as an unfortunate attempt to augment its powers at the expense of those conferred on the high courts. This is dangerous given that the strength of any institution lies in its unity, not discord.
So, to ensure actual judicial independence, it is imperative the Supreme Court review its use of strictures as well as the passing of orders that vest greater discretion in the executive as compared to its own judicial forums. If it does not, while the effect of such measures may result in compliance with and execution of Supreme Court directives, such compliance may come at the greater cost of the high court being unable to implement its own orders.
The writer is a Karachi-based attorney-at-law.
Published in Dawn January 22nd , 2015