Judicial competence

If the examples of judicial practices were imported from the US, other American legal practices also deserve to be brought in

On 20 April 2017, when the Panama case judgement was issued with one of the two dissenting remarks written by Justice Asif Saeed Khosa, who borrowed a quote from The Godfather, ‘Behind every great fortune, there is a crime,’ the supporters of the judgment cited the remarks-making practice prevalent in the Supreme Court (SC) of the United States (US).

Perhaps, in line with the same argument, on 22 January 2018, while speaking to a delegation of the Parliamentary Reporters Association, Prime Minister Shahid Khaqan Abbasi called for the scrutiny of judges before their appointments, as is the case in the US. PM Abbasi precisely said, “People should know who the judges are, as they have to decide matters of life and death, matters worth billions of rupees, and make historic judgements.” Abbasi has spoken the right words for two reasons. The first reason is that in the process of dispensation of justice, the bar and the bench are not two parties to decide between them who should be a judge and who should not be. Instead, there is a third party as well which has the highest stake in the judicial system formed through the parliament. The third party is the people of Pakistan.

If the examples of judicial practices were imported from the US, other practices established there also deserve to be brought in. For instance, the principle of sovereignty stated in the preamble of the US Constitution says, “We the people… do ordain and establish this Constitution for the United States of America.” Here, the power underlying ‘the people’ (expressed in the lower house of the US) is stronger than the power underlying any other state institutions deriving their status and role from the constitution. The SC in the US is given only that much operational space which is ordained by the people, and not which is hogged by the SC. The point is simple: whereas the constitution mandated Justice Asif Saeed Khosa to adjudicate on a matter, the constitution did not mandate him to ridicule voters — ‘the people’ — by issuing such a comment against their representative. Justice Asif Saeed Khosa could punish a culprit, but he could not deride the culprit. His remarks have singlehandedly vitiated the socio-political atmosphere in the country.

The people have every right to know the background, cognitive depth, intellectual capacity and the consequent judicial competence of the judges serving them, especially in the higher judiciary

The second reason is that the system of selection of civil servants takes place through the FPSC and the whole process is open to public scrutiny. The posts are advertised, and the selection is made on publicly declared merit. Judges also serve the public; however, the system of selection of higher judiciary is not open to public scrutiny, and this is where the rub lies.

On 16 December 2017, while addressing a seminar on “Seeking Justice, Challenges and their Solution” organised by the Pakistan Bar Council (PBC) in Lahore, Chief Justice of the SC Justice Saqib Nisar said: “The elevation and confirmation of high court judges is done on the basis of their integrity, knowledge of law and conduct. The bar is also consulted in the process, but no appointment is made to please someone.” However, this is not the case practically.

It is known that for a high court, lawyers are recommended by established law houses, and the matter remains sequestered between a selecting body and the law houses controlling more space of influence. A level playing field is not provided to all the lawyers. For instance, about the incumbent Chief Justice of Lahore High Court (LHC), Justice Mansoor Ali Shah, the avowed statement is that “he joined the private practice as a founding partner of ‘Afridi, Shah and Minallah’, and was involved in the Lawyers’ Movement of 2007 seeking restoration of the judiciary. He was elevated as a judge of the Lahore High Court in 2009, and was appointed Chief Justice on 27 June 2016.”

This part of the available information indicates that Justice Shah’s participation in the Lawyers’ Movement must have played a role in his selection for the position of a judge. As the Chief Justice of LHC, Justice Mansoor Ali Shah is known for being impulsive and revengeful; the litigants bear the brunt. Reminiscent of Advocate Naeem Bokhari’s letter written (in February 2007) to the then Chief Justice of the SC Iftikhar Muhammad Chaudhry, Justice Mansoor Ali Shah writes on the order sheet the points never argued by lawyers in a hearing before him. To this malpractice, lawyers observe silence, but the litigants get disconcerted with the judiciary. After his elevation, what shape the SC is going to attain is imaginable. This is exactly why parliamentary oversight in the selection of judges is vital.

On 24 January2018, Chairman Senate Mian Raza Rabbani met Chief Justice Saqib Nisar and discussed the role of the parliamentary committee constituted under Article 175 of the 1973 Constitution for the appointment of judges in superior courts, for judicial reforms. This is a positive sign, as several complaints have knocked at his door. The people demand that the judiciary should be not excluded from beginning the reform process from the top.

In his public speeches, Justice Nisar is found quoting the example of the dispute between Al Gore and George Bush on the presidential election in 2000. The case, which was argued and decided in December 2000, tested the mettle of the SC headed by Justice William Rehnquist. His curriculum vitae indicates that during his tenure in office (from 1986 to 2005), he authored five books which were available to American people for fathoming the profundity of his judicial cognition and the pinnacle of his intellectual flight. Contrarily, neither a book nor a research article is claimed (or available publicly) to have been written by either Justice Shah or Justice Nisar.

In short, judicial reforms are required, and these should begin from the top of the judiciary. The people have all the right to know the real background, cognitive depth, intellectual flight and the consequent judicial competence of the judges serving them, especially in the higher judiciary.

The writer can be reached at qaisarrashid@yahoo.com

Published in Daily Times, February 1st 2018.