A structural malaise

Published August 27, 2021
The writer is a lawyer and an academic.
The writer is a lawyer and an academic.

THE greatest assets of a judiciary are its credibility and independence. The former reflects a judge’s impartiality and competence, and the latter the strength of legal underpinnings. Combined, they develop the ethos of a legal system. No wonder, national judiciaries are globally graded for their jurisprudential quality and institutional autonomy. Unfortunately, our judicial history is not a happy reading on both counts, thanks to a slew of ‘aberrant’ judgements and recurrent institutional ‘compromises’.

The ongoing fracas with regard to the appointment of junior judges to the Supreme Court, the recent controversy surrounding the ‘arbitrary’ elevation of the Sindh High Court chief justice as an ad hoc judge, and the increasing clamour against what is seen as the ‘unbridled’ use of power by chief justices to constitute benches, are the continuing symptoms of old structural malaises that have historically sapped the image, and more deplorably, the cohesion of our judicial institution. Judicial dissent on the construction of law or the Constitution is globally recognised, in fact cherished. But divisions on administrative or structural issues are quite rare, given the underlying conventions and procedural buffers. Even discretionary powers to form benches have been largely subjected to judges’ seniority, experience and expertise. But ominously, social media and bars are abuzz with speculations regarding perceived divisions in the SC or benches being constituted to ‘influence’ the fate of important constitutional cases. Of course, these speculations are mere conjecture, but they could affect the public psyche.

Read: Judicial jugglery

The structural problems — mainly, the constitution of benches, and the elevation of judges — need to be addressed imperatively also because they are seen to be vitiating the judiciary’s credibility, bench-and-bar relations, and of course, the smooth and swift administration of justice. Luckily, the Constitution, the bars and public opinion are favourable towards reforms. The judicial leadership can set its house in order once and for all by laying down iron-clad conventions and clear rules for the elevation of judges and constitution of benches, particularly in cases involving sensitive constitutional issues. The judicial leadership can also review its new-found stress on ‘efficiency’, rather than seniority, as a governing principle for judges’ elevation to the apex court. No one denies efficiency being essential for the disposal of cases and enriching jurisprudence. But it’s the concept of ‘efficiency’, and its practical application, which raises tricky questions. For example, what is ‘efficiency’? Is it the disposal of cases, the quality of judgement, administrative deftness, emotional balance or general reputation? Who will assess it? Those sitting in the Judicial Commission of Pakistan (JCP), discontented litigants, or members of various bars, who daily appear before the judges and literally experience their professional competence and personal conduct? And how will it be assessed? Subjectively, objectively, intuitively or covertly through surveillance?

It should also be analysed if the age-old judicial malaise is rooted in judges’ inefficiency or in other personal and institutional variables. The intellectual capacity or legal scholarship of our judges has never been considered suspect by historians. And individual slackness, if any, would have been cured through multi-stage adjudicatory processes. Instead, history laments perceived personal ambition and failure to inculcate the judicial ethos of impartiality, efficiency, fairness, certainty, courage and scholarship — which are indispensable for an efficient and independent judicial system. For instance, who would dispute the legal training or juridic erudition of the chief justice of Pakistan, Muhammad Munir (1954-60), or the chief justice of India, A.N. Ray (1973-77)? Both were accomplished jurists. And yet both willingly conspired with unscrupulous rulers to sabotage constitutional norms, for their own careers. They attained the highest judicial offices, but pushed their respective institutions down. It is another story that a cohesive and wary Indian supreme court, ably assisted by a host of courageous and competent lawyers, fought back. Not only did it succeed in building a firewall around the constitution under the rubric of the ‘basic structure’ but also decisively pushed back a marauding executive. The firewall holds to this day, notwithstanding the cracks wrought by increasing communalism.

The judicial leadership can set its house in order by laying down iron-clad conventions and clear rules.

In Pakistan, law students continue to read the same story of personal ambition, lack of cohesion, institutional compromise, and constitutional setbacks, notwithstanding the arduous bench-bar struggles, constitutional reforms, and several authoritative judgements on the independence of the judiciary. No wonder, the balance of power remains tilted in favour of a powerful security establishment, and our jurisprudence — despite its originality, creativity and articulation — has reportedly been received with some scepticism abroad. The US State Department’s report casting doubts on the independence of our judiciary is a recent instance requiring reflection, notwithstanding the political nature of such reports.

The judiciary’s structural malaise has a federal dimension too. The provincial judiciaries are largely mixed reflecting the multi-ethnic composition of the state. The SHC has in particular been an epitome of multi-ethnic blending. The composition of the SC, though, has been seen as lopsided in this respect. True, the Constitution provides no specific ethnic or regional quota for the apex court. But it does envisage the SC as a truly federal court. Hence, it mandates the elevation of judges only from the provincial high courts or local bars. No wonder the JCP’s not elevating the SHC chief justice, despite his seniority, has not been well received by the lawyers or people of Sindh, and there might now be fewer expectations of a Sindhi-speaking judge being elevated to the SC for many years, considering the current composition of the SHC. Therefore, the attorney general was spot on when he warned in his letter to the JCP that “Pakistan being a federation, its institutions can only strengthen and work effectively when they reflect all its people”.

Judicial reforms can no more be put off. A credible efficient judicial order is key to meeting the challenges that beset the country. Judicial stalwarts have to heal structural malaise with a rule-based therapy if the ills perceived as being born of subjectivity, schism and imbalances are to be removed.

The writer is a lawyer and an academic.


Published in Dawn, August 27th, 2021



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