Daily Times

Democracy is about checks and balances. All organs of the state i.e Parliament, Executive, and Judiciary are meant to keep a healthy and effective check upon each other. In simple terms democracy is about the people’s choice. When the people’s choice does not get reflected in the quality of services provided by the state for the people the very nature of the state comes into question. Justice, security, health, education, and sound economics are few important elements of the social contract of the state with the people that need to be reflected in the quality of the governance. Justice being the fount of all good and evil in the society obviously tops the list of the elements mentioned above.

There is an interesting observation of Lee Kwan Yu about Pakistan being one of the most litigation prone countries in the world. There is an element of truth in the observation as land, property, and family disputes consume a lion’s share of the people’s time and resources due to lax property laws and polarized social fabric of a proto agrarian economy and concomitant social structure. The criminal, civil, and corporate segments of the national laws all cry out for promptness and economy in favour of the litigants, keeping the scarlet thread of the unadulterated justice prominent in the legal skein of the judicial robes. Justice delayed is justice denied has become a tired old cliché while a nexus between the lawyers and judges has erected an edifice suiting more the service providers than the service seekers.

A scrutiny of the judges’ selection system the world over indicates an effective parliamentary oversight without a carte blanche to the judges to select the judges based on a single institution defined criteria

The British tradition of Anglo-Saxon laws as against the French Napoleonic code based law and the US trial by jury served Pakistan well till the time the pristine traditions of judicial restraint and aloofness were practiced by the British trained jurists in the fifties and sixties. With the general decline of all national institutions the delivery of justice also met the same fate with the practitioners on bar and bench getting away from their core objective of prompt and cheap justice to the litigants. The Anglo-Saxon tradition of using laws as precedence,that was practiced with circumspection by the legal practitioners creating law on the trot through practice, the parvenu jurists failed to keep a proper balance between law and precept. The concept was stretched to limits to leave wide gaps in legal interpretation allowing judges a lot of latitude to deliver judgments

The above proved to be a lethal combination in our litigation prone feudal society where false evidence, delaying tactics, poor police investigation, and prevaricating tactics by avaricious lawyers combined to create a legal universe that served everyone’s interests except the poor litigants. The law under legal practitioners in the words of affected litigants had become a “nose of wax” that could be moulded in different shapes depending upon the desired outcome. Justice thus became secondary to litigation with long interminable hearings leaving the poor litigants mentally drained and financially enervated. Against Islamic principles of prompt and indiscriminate justice the system degenerated into a process that benefited the rich at the cost of the poor. The system became the mirror image of the much derided US system of justice where the famous case of O. J. Simpson reminded people that one could pay one’s way to a favorable verdict.

Another issue that impacted adversely upon the quality of judicial performance was the quality of the judges. We once had judges like A. R Cornelius and M. R. Kayani who inspired awe and reverence due to their conduct. They made their presence felt through their verdicts and not the public statements. After remaining in the shadow of the dictators for a long time our judiciary in the post 2008 consolidation phase of democracywitnessed a jostle for power amongst the parliament, executive and the judiciary forcing the military to be the central arbiter by default. The judiciary in its quest for power like all the other institutions marshaled the available strengths in its possession. In case of the parliament and the executive it was public support and the constitutionally defined powers while for the military it was the possession of the coercive power. The judiciary while confronting the political excesses of autocracy as well as democracy came to rely on street power of lawyers and the media.

The lawyers’ struggle that resulted in restoration of Chief Justice Iftikhar Chaudry led to the dilution of the time honoured traditions of judicial restraint and political aloofness. The above led to a display of over exuberance in taking suo moto notices of subjects relevant to public weal and governance at one end and a greater reliance on the popular support of the lawyers on the other end. Combined with above were two baleful trends. One was the mushrooming of the low quality institutes from where the lawyers could get law degrees without the required academic rigour resulting in a large infusion of poor quality stuff amongst the lawyers’ ranks. The second trend was the selection of judges which once being a very well structured system had gradually become more personalized without effective parliamentary oversight.

The concept of parliamentary oversight in case of selection and performance of judges was completely taken out of the parliament’s hands during the tenure of Chief Justice Iftikhar Chaudry. The Parliament and Executive became a rubber stamp merely capable of raising observations allowing judges to select judges without any system of checks and balances. The present system of selection of judges for higher judiciary is a case in point where majority of seats available to be filled are given to lawyers’ community with 15 years’ of service. The selection committee that sits to select the high court judges is not answerable to anyone for the transparency and fairness of the selection process. The selection process of the lower judiciary also needs to be improved through a more rigorous competitive process.

The selection of judges for higher judiciary should be done by a panel of selectors including judges, members of parliament, eminent civil society representatives with legal knowledge, and psychologists. The selected panel should be approved after due scrutiny by a Parliamentary Committee on Judicial Affairs whose approval or rejection should be based uponsound reasons to be finally ratified by the Prime Minister. The selection of judges in higher judiciary is far too important to be left to the whims of a single institution without due checks and balances. A similar process of parliamentary scrutiny should be done at provincial level for judges of lower judiciary. The elevation of judges of High Courts to Supreme Courts should also be done after scrutiny by the Parliamentary Committee on Judicial Affairs for greater transparency and fairness. Besides above the elevation of the judges to the Supreme Court should also have some criterion based on performance and not on seniority alone.

A scrutiny of the judges’ selection system the world over indicates an effective parliamentary oversight without a carte blanche to the judges to select the judges based on a single institution defined criteria. A time has come to treat the judicial reforms as a priority area. The first step on the reforms ladder should be parliamentary scrutiny and oversight of the judges’ selection followed by an effective oversight mechanism of their promotions, performance, and accountability. The checks and balances inherent in a democratic polity should be effectively applied to an organ of state upon which depends the entire edifice of our laws and constitutional governance.

The writer is a PhD scholar at NUST