Judicial reforms: reconsidering CJ's role

Saturday, April 26, 2008

Babar Sattar

What is wrong with the PPP? Has it still not learnt that Pakistan in 2008 is an assertive, impatient place unwilling to suffer politicians who try to feed the nation with equivocal commitments and platitudes? How many more coalition meetings, special-committee negotiations and expert consultations will it take to conclude that the wrongs inflicted on the judiciary since November 3 must be corrected unconditionally? Hypothetically speaking, had the general not illegally dismissed the judges, and by some miracle of nature the general election had still resulted in the creation of the coalition government that we presently have, would slashing the tenure of the Chief Justice still top the PPP's constitution-amendment agenda? Is it honourable for a popular mainstream political party to derive leverage from the unconstitutional and condemned acts of the general and seek partisan gains in agreeing to support a principal?

Asif Zardari's trite speech on the PPP's commitment to strengthen the 'institution of judiciary' and animate the 'majesty of law' is not comforting due to his party's hectic behind-the-scene efforts to exclude Chief Justice Iftikhar Chaudhry from the bench. A constitutional package fixing the tenure of the chief justice to ease CJ Chaudhry out of office before he reaches the age of superannuation will be rightly viewed as another naked assault on the independence of the judiciary. If Mr Zardari is focused on institution building and not stuck on individuals as he claims, what better way to manifest such principled commitment than by restoring and strengthening all the deposed judges including the Chief Justice who he finds disturbingly independent and unpredictable. The PPP must realize that feet-dragging on the issue of restoration, while smugly deriving benefits from the Dogar Court and keeping compromised wheeler-dealers such as Attorney General Malik Qayyum in office, are all factors compounding its image problem.

It is understandable that the PPP is confronted with a dilemma when it comes to the judiciary. It has now assumed partial control of a malfunctioning justice system that serves the powerful. Now that it is on the right side of the system, there are massive gains to be reaped so long as it is in the power seat. So should it make hay while the sun shines or resist the temptation and make the system less vulnerable to abuse in the larger interest of the nation and to be dealt a fair hand if the party gets the wrong end of the stick in future? The swiftness with which cases pending against Mr. Zardari have been wound up by the courts over the last few months puts the concept of rule of law to shame. This is not a comment on the merit of the cases, but instead the timing and the manner in which they have been handled. It is a well-known adage that justice must not only be done but must also be seen to be done.

What suddenly shook the conscience of our dispensers of justice to arrest the gargantuan wrongs being inflicted upon Mr Zardari for years? How come it dawned on the Dogar Court only last week that requiring elected public representatives to be graduates violated their constitutionally protected right to freedom of association and equal protection of law. Pro-democracy forces have been crying hoarse for the last six years that the graduation condition makes a mockery of democracy, equal rights and majority rule; it is elitist and constitutes a grave infringement of citizens' fundamental rights by proponents of 'controlled-democracy'. The Supreme Court hearings in the matter suggest that the court could not previously fathom the discriminatory effect of this disenfranchising law due to lack of empirical evidence (in a country where even the exaggerated literacy rate is around 50 per cent and those able to read papers are deemed literate!). Is it merely coincidental that while general election were held under the graduation condition, the Doger Court struck down the law prior to the by-election wherein Mr Zardari – reportedly a non-graduate – wishes to contest?

One marvels at the compulsions that force individuals, bestowed with the divine calling to mete out justice, to stoop to shameful levels of partiality. Notwithstanding the psychological profiles of those at the helm of our institutions of justice, opportunistic decisions of the Dogar Court and the surrounding circumstances in which they are rendered emphasize the urgent need to reassemble an independent judiciary. It is true that no other court can possibly provide the kind of predictable legal service that the PPP or any ruling party can desire. But in conjuring up the image of a desirable court, considerations of autonomy, fairness and impartiality must override those of predictability and spineless loyalty. For spineless loyalty can change sooner than the weather. And in any event the majesty of a legal system cannot be enthroned if the law means different things at different times depending on whether the litigant is powerful or dispossessed.

If Mr Zardari is serious about strengthening the judiciary as an institution, he can sponsor process-driven reforms and initiatives that could even address the PPP's misconceived fears that if unconditionally restored CJ Chaudhry might be beholden and partial to the PML-N.

The coalition partners can agree to reconsider the administrative authority of the chief justices of the Supreme Court and High Courts. The independence of the judiciary is actually a means to create an impartial judiciary, as explained at length by Justice Asif Khosa of the Lahore High Court, while speaking at the International Judicial Conference held in Islamabad in 2006 during the golden jubilee celebrations of Pakistan's Supreme Court. Such judicial independence and impartiality can be threatened not only by the executive -- as has historically happened in Pakistan -- but also by chief justices to the extent that they exercise their administrative powers to influence the judicial function of other members of the court.

As Justice Khosa elaborated in his paper: "Concentration of powers in the hands of the head of a judicial institution regarding constitution of benches, allocation and distribution of cases among benches, attaching priority to different kinds of cases and geographical transfers of judges is an issue which has raised eyebrows in the past and can also resurface in the future. A possible misuse of such powers by the head of a judicial institution can effectively render the independence of an individual judge to be of no practical utility or benefit to the citizens at large." The chief justice as the head of the court is first among equals and his judicial authority is no more than that of any other member of the bench. However, by virtue of his administrative powers to determine the composition of benches as well as which bench hears what cases, he can single-handedly influence the judicial outcome of important cases being adjudicated by the court.
Judicial independence implies independence of a judicial officer from all extraneous considerations and influences, including freedom from the coercive influence of seniors on the bench. Conventional wisdom suggests that the best protection against abuse of arbitrary authority is to distribute it widely. In the US all justices of the Supreme Court have a vote in determining which matters are to be fixed before the court, just as they have an equal vote in determining the outcome of a legal dispute. Given the size of our court and the number of cases heard by the apex court, a voting system involving all justices might not work for us. But our Supreme Court should have an executive committee comprising the five senior most judges who collectively exercise the administrative functions of the court, with the chief justice functioning as the committee chair.

Such an approach to judicial reform will be rooted in principle, as opposed to being outcome-driven, unlike the proposed reduction in CJ Chaudhry tenure aimed at seeing him off as soon as possible. One the one hand it will guard against the whimsical exercise of authority as well the partisan affiliations of all chief justices, and on the other it will make it harder for a ruling executive to solicit favourable decisions from the court in a matter of days by liaising with an all-powerful chief justice. Effective statesmanship requires of a leader to conceive a vision larger than the immediate partisan goals of his clique. In order to establish that the PPP's commitment to judicial independence and reform transcends its love for the NRO, Asif Zardari must opt for a principled approach to reform that makes the judiciary impervious to partisan executive manipulation – even the PPP's.

The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School.