Daily Times

In part 1 of this two part series on Judicial Accountability published in these pages on 14th October, we discussed ‘institutional disequilibrium’ with the help of social science literature. The judiciary seeks absolute ‘independence’ and it needs to be balanced with being accountable and constrained. We also discussed that judiciary ensures its independence from the weak political and civilian leadership, yet it is perceived to be under the influence of the non-representative institutions.

In this article today, we are going to consider how the judiciary used its control over the issue of appointments in the post-18th amendment era that further weakened the civilian political sphere and control of the Parliament. We are also going to present some recommendations to promote judicial accountability. This article refers to some literature (Kalhan 2013; Husain 2018; The News on Sunday Special Report – 20 January 2019 – on the Role of Chief Justice) to illustrate the discussion.

The web of relationships that intersect with judicial independence are not only limited to political/civilian leadership and non-representative institutions; they also include other government departments, lawyers and bar associations, the media, private interest groups, and also public at large.

The judiciary got hold of the process of the judicial appointments in 1990s after its wrangling with various political governments in the famously known as the Judges Case in 1996. According to this procedure, the President on the advice given by the Prime Minister made Supreme Court judges appointments after holding ‘consultations’ with the Chief Justice of Pakistan and a similar process was followed for the High Courts. The principle of seniority was established and the advice of the judiciary was more or less binding.

The 18th amendment tried to put a modest constraint on judiciary by introducing Parliamentary oversight of the process of appointments. It established an eight-person Parliamentary Committee, equally represented by the government and the opposition. Nominations for appointments were initially made by the Judicial Commission under the leadership of the Chief Justice of Pakistan and this Commission also had representation of the judiciary, bar associations, and the executive. In the review process, the Judicial Commission nominates final nominees to the Parliamentary Committee that can only reject it with a three-fourth majority and within 14 days.

Soon after the passage of the 18th amendment, the Supreme Court accepted petitions challenging its procedure of new judicial appointments to be contrary to the ‘independence of judiciary’ that is considered a ‘salient feature’ of the Constitution. The petitioners urged the Supreme Court during these proceedings to adopt the Indian judiciary’s “basic structure” doctrine like approach by virtue of which the courts can strike down a constitutional amendment if in their opinion it clashes with the “basic structure” of the constitution i.e. the independence of judiciary in this case. These arguments were validated to some extent during the proceedings.

An institutional approach must be adopted to reform the judiciary. Similarly, the rights and privileges of other institutions such as the Parliament should be respected rather than adopting a quick-fix approach

In its decision, the Supreme Court insisted upon the primacy of judicial independence as a “core value” of the constitution and though it apparently referred the matter back to the Parliament; the implicit threat was that it could strike down the constitutional amendment if the Parliament did not acquiesce. As a result, the Parliament passed the 19th amendment accepting the Court’s recommendation to a large extent and diminished the powers of the Parliamentary Committee over judicial appointments. However, the Supreme Court through its proceedings in subsequent cases (such as Munir Bhatti Hussain 2011and the Presidential Reference Case 2012),further weakened the oversight of the Parliamentary Committee and reaffirmed the main role of the Chief Justice in appointing judges. Thus, the process largely returned to the ethos set by the famously known the Judges Case in 1996 and a modest attempt by the Parliament to put a constraint on the power of judiciary over appointments was thwarted. In the absence of clearly laid-down objective criteria for the judicial appointments, the judiciary acted in self-interested way to preserve its institutional turf and to a large extent did not promote robustness in judicial appointments mechanism.

In this regard, one positive aspect worth highlighting is the role played by Justice Syed Mansoor Ali Shah as the Chief Justice of the Lahore High Court who made an effort to promote judicial appointments and promotions through objective criteria. There has been a mixed reaction to this laudable initiative of Justice Shah. However, it proves that internal reforms in judicial administration are possible, and should be adopted and promoted. Similarly, Justice Shah also tried to hold both the concerned members of the bench and bar accountable in the face of concerns raised. The bar visibly resisted Justice Shah holding the concerned lawyer accountable. It shows that bar associations instead of disciplining their members and holding them accountable in the case of misconduct protect them as an interest group acting like a mafia rather than upholding the rule of law.

In terms of recommendations for judicial accountability, the judiciary must allow effective Parliamentary oversight of the judicial appointments process as the Parliament represents the will of the people, instead of judges being answerable to none other than themselves. Similarly, internal operations of the Judicial Commission that oversees appointments must be reformed to promote transparency and objectivity.

The judicial populism and overdose of suo moto notices must be avoided and the present Chief Justice of Pakistan has done so. However, rather than varying this populist behaviour from Chief Justice to Chief Justice; rules must be institutionalized so that the no future Chief Justice exercises judicial over-reach and suo moto should be strictly regularized.

The Chief Justice is only the first among the equals; he/she should not alone determine benches for cases. There should be a committee of senior Supreme Court judges that should collectively fix benches for cases according to the expertise, seniority, geographical feasibility, caseloads of the judges. Benches should function for a fixed term.

An institutional approach must be adopted to reform the judiciary. Similarly, the rights and privileges of other institutions such as the Parliament should be respected rather than adopting a quick-fix approach.

To reform the process of removal of judges, some non-judges should be included in the Supreme Judicial Council (SJC). Right now, judiciary is a close-ended institution that appoints itself and has the right to dispose off its judges. Self-accountability rarely works. There is greater need for transparency in the SJC rules and functions.

Similarly, the bar councils should uphold professional integrity and discipline their members in the face of misconduct and breach of the code of conduct, rather than protecting the misdeeds of lawyers as a mafia group.

Concluded

The writer is an Islamabad-based social scientist