Daily Times

The National Judicial Policy was an ode to the ‘independence of judiciary’. It declared: “In future no chief justice or a judge of the superior court shall accept appointment as acting Governor of a province.” In addition, it stated: “No retired judge of the superior court shall accept an appointment which is lower to his status or dignity…” And further: “In future the judiciary would avoid its involvement in the conduct of elections, as it distracts the judicial officers from professional duty and complaints of corrupt practices tarnish the image of judiciary.” For positions, required by the statutes, to be filled by retired or serving judges, the policy recommended, such serving or retired judges may be “appointed in consultation with the Chief Justice of Pakistan or Chief Justice of the respective High Court…”

The policy was a major step forward in judiciary’s affirmation to separation of powers and its independence. But since the policy’s revised edition published in 2012, retired judges have been appointed as governors, they have headed administrative tribunals, occupied positions lower in both status as well as dignity and conducted elections.

Judiciary, from the very nature of its functions, is only independent when it is separated from coordinate branches. It expresses itself through opinions from the bench exercising power of review over executive and legislative branches. It acts as an authority which can declare the acts of coordinate branches void. It sits in judgment. Therefore, judiciary necessarily must be seen as superior to other coordinate branches. Any position in either executive or legislative branches, accepted by a retired judge, is below the status and dignity of the high office of justice of the superior courts.

Such positions are also against the life-long inclinations of the judges. To maintain deference from coordinate branches, judges in their personal capacity, lead a cautious and a guarded social life. They practically slay it. On the Bench, they exercise restraint, every now and then, to avoid being caught up in the political thicket. This enhances both the legitimacy and effectiveness of judicial orders. What good are the orders of the courts after all, if the executive refuses or is unable to implement them? Or if the judicial orders, even so much as are perceived to be a product of a judge’s social or political ties or leanings?

It is essential for the judiciary to remain separated from other coordinated branches not just in their discharge of constitutional duties but also in their conduct. While the official duties and functions come to an end at the age of superannuation (or earlier), the judicial conduct remains and continues to shape up the legacy of the judicial officer. When the judicial officers assume executive roles, after their retirement, it is an unbecoming conduct, compromising the very spirit of both separation of powers and in effect independence of judiciary. This does not need to be spelled out in the oath of judicial officers provided in the third schedule of the Constitution nor in their code of conduct issued by Supreme Judicial Council nor in any judicial policy. This is more a question of ethics, conventions and habits, that a society evolves, setting one good example at a time. There are such examples; resignations or polite refusals to accept executive positions, and plenty of them, that must not just be cited in our mainstream narrative but also celebrated.

It is essential for the judiciary to remain separated from other coordinated branches not just in their discharge of constitutional duties but also in their conduct

At any rate, to appoint retired justices in executive roles, when the presumption is, they are no longer fit to carry on their official duties with age catching up, isn’t good for optics either. Some perceive such appointments as rewards to the pliant judicial officers, others argue such appointments enable executive to perpetuate its influence on judiciary. Either way, it undermines independence of judiciary. Recent experiences may additionally illustrate that the reason for assigning laborious executive positions to retired justices is precisely due to popular apprehensions; their incapacity.

The exalted station of justice cannot be used as a stepping stone for executive ambitions. If anything, it is not a career progression but a regression. There is no need to build consensus around filling executive positions with retired justices. In addition, we need to appropriately amend our Constitution, for instance, Article 213, and laws that require executive positions to be filled by retired judges. There is also a need for judicious self-corrections by superior judiciary to discourage such practices. Isn’t it ironic that the architect of National Judicial Policy now mentors a political party?

Fidelity to constitutionally defined separate roles inspires confidence in decision making processes of different organs of government. Judiciary is at the pinnacle of its power when it is interpreting the law independently. When judges accept executive roles post-retirement, it triggers a likelihood of suspicion. And that is sufficient to compromise judicial independence.

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, October 26^th 2017.