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Editorial implications Expensive
and time-consuming accountability Hegemony
of the process
Editorial The headline is
slightly misleading. Here, the judiciary’s ‘new’ role is being
juxtaposed with its old role that lasted for, say, the first sixty years of
the country’s existence. If one were to pinpoint a high profile case that
kickstarted this activist role of the judiciary, it would have to be the
nullification of Pakistan Steel Mills privatisation in 2006. Prior to that, the
judiciary exercised restraint in matters that did not fall under its
purview; not even in the name of ‘fundamental rights’ or ‘upholding
the Constitution’. The Lawyers’ Movement
that started with the immediate goal of getting the judges restored upheld
the long term lofty ideal of “independence of judiciary”. With the
judges restored to their rightful position, somewhere in between, the ideals
got muddled; the independence of judiciary, henceforth, became synomous with
an activist judiciary.
This image was reinforced
by a gung ho media leaving no space for the philosophical debate about what
constitutes independence of judiciary. Independence is essentially tied up
with the concept of separation of powers and can only be ascertained by
judicial restraint. Yet, the people of this
country were engaged in a debate of another kind. Here, the supporters of an
active judiciary, helped immensely by the media, tried to make the argument
that in case of total failure of the executive, which they established had
conclusively happened, some institution has to take action. And judiciary
was the best placed to perform the executive’s, and the legislature’s,
role, they claimed. This was and is a faulty
suggestion that falls on slippery terrain. The Constitution does not provide
room for any such mechanism. Unfortunately, this was made to appear as a
dominant, or at least a loud, discourse. It did not just stay at
the level of discourse; the activist judiciary got itself entangled in
everything the classical model would warn it against. The immediate
consequence is a jurisprudence that is impacting the country in a very
serious manner. This is especially true for the judiciary’s interference
in strictly economic and policy matters that has literally put the state’s
credibility at stake internationally. Separation of powers not
just entails that one organ will not interfere in the sphere of another
organ; it also means that each organ will strengthen itself to an extent
that no other organ dares interfere in its sphere. This is a very fine line.
Our judiciary has interpreted it to mean that no other institution shall be
involved in the appointment or removal of judges (though this has its roots
in the al-Jehad case). Again, this is something unique to Pakistan; no other
country in the world precludes the role of executive and/or legislature in
the appointment and removal of judges in the manner that we have. Not even
India. Judiciaries all over the
world work on the strength of their moral authority while force and
financial power rests with the executive. They cannot expect to enjoy that
moral authority if they keep giving decisions that cannot be implemented.
This is what is happening in Pakistan. With each decision that does not get
implemented, they start losing that moral authority. If there is no exercise
of restraint as the Constitution desires, other institutions may decide to
put their foot down. The judiciary should not let that happen.
implications Somebody said
somewhere, “Judicial review is something the court ought to hold in its
back-pocket, only to be pulled out when a clear threat to nation’s
integrity occurs”. The above principle
defines the limits on the judicial review and these limits must apply to the
judicial review of economic, financial issues and policy matters more
seriously. The Supreme Court of Pakistan, in the famous case of Elahi Cotton
Mills Ltd. (1997 PTD 1555), had held that “in the utilities, tax and
economic regulation cases, there are good reasons for judicial
self-restraint if not judicial deference...” The wisdom behind this
age-old principle is that economic and financial issues have their own
peculiar complexities, and judiciary is not well-equipped to deal with such
matters. These issues should thus be left to the better judgment of
legislators, executive or regulatory authorities who have the expertise in
the relevant subject. In the recent past,
judiciary in Pakistan, more particularly the Supreme Court, has developed a
tendency to frequently interfere in complex economic matters under the garb
of protection of human rights and enforcement of constitution. Till the
emergence of this recent trend of judicial activism, which started with the
nullification of Pakistan Steel Mills privatisation by the Supreme Court (Watan
Party Vs. Federation of Pakistan PLD 2006 SC 697), the judiciary was always
reluctant to interfere in policy issues, especially those that had economic
and financial implications. After the Pakistan Steel
Mills Case, the trend was reversed and it started interfering in almost all
economic and financial issues, whether they were related to fixation of
petroleum prices, sugar pricing, liquid natural gas (LNG) import, grant of
mining rights in Balochistan or the government’s decision to establish
Rental Power Projects (RPPs) to curtail the power shortage in the country. It is interesting to note
that, in most of these cases, the action was taken on applications of
individuals who had approached the court without being personally aggrieved
in any manner and were invoking the jurisdiction of the court alleging
perceived corruption. On other occasions, the courts assumed suo motu
jurisdiction on newspaper reports. The interference in economic affairs has
become a norm rather than an exception. The supporters of an
active judiciary justify these acts on the ground that, as the executive has
failed to curtail the menace of corruption and bad governance, the judiciary
must step in to fill the vacuum. This argument is a non-starter as the
Constitution nowhere states that in the case of failure of one organ,
another organ may come in to cure the deficiency. The argument is an
offshoot of the “doctrine of necessity” which the present judiciary so
proudly claims to have buried under its various judgments. The courts’ activist
interference in economic and policy affairs is in principle wrong and
violates the doctrine of “separation of power” as visualised by the
founders of our Constitution. This interference,
additionally, has an enormous adverse effect on the country’s economy,
credibility and long-term interest. Economies and businesses develop in an
environment of certainty and the credibility of the state. This certainty
includes certainty of law and assurance that an entrepreneur’s investment
will be secure and that state will not interfere unnecessarily except
through routine regulation in his business affairs. If an entrepreneur or a
business concern is not certain about the future of state actions, including
judicial pronouncements, he or she will not risk investing in such a
country. Recent judicial pronouncements, more specifically in cases of LNG
import, RPPs and PSML, have created an impression in the minds of investors
that the judiciary in this country could take up any matter and its
pronouncements may result in loss of their investment and, worse, criminal
prosecutions. As most stakeholders in
the above-mentioned cases are foreign investors, this has had a direct and
adverse effect on foreign direct investment (FDI) in the country. Any
prospective investor may thus be reluctant to invest in such a country where
his investments are not legally secure; Pakistan’s case is further spoiled
because of terrorism and law and order situation. In some of these cases,
such as the RPPs, the concluded contracts against which huge investments had
been made by foreign investors were cancelled and criminal prosecutions too
were initiated. This has considerably affected the state’s credibility as
a safe investment prospect, especially in the background of another Supreme
Court judgment in case of HUBCO (PLD 2000 SC 841) where, unfortunately, the
courts’ judgment scrapped international Arbitration against WAPDA and
government. This also has a foreign
policy dimension as, in the present day world, states are sensitive towards
foreign investments made by home companies and relationships between
countries are governed by their economic interests. An activist judiciary may
also affect the decision-making power of the executive and legislature. In
such an environment, policy makers and economic managers will be reluctant
to initiate new programmes and policies; they will be unsure as to whether
their new policy or initiative finds favour with the judiciary or not. An
unfavourable view may also expose them to civil and criminal actions under
various accountability laws. Being a democracy, the
legislature and executive in Pakistan are elected for a fixed time period
and the people of the country give these elected representatives the mandate
to run the country according to their respective manifestos and policy
priorities. If the judiciary starts interfering in every policy decision,
especially those relating to economic affairs, the executive will not be
able to fully exploit its economic potential. This, in my view, will be
against the spirit of democracy as the unelected judiciary will be
micro-managing the economy and policy affairs. Besides, as we have seen,
the recent incidents of courts’ interference in fixing the prices of CNG
and sugar, instead of improving the situation, only worsened it. The
judicial decisions actually created a shortage or non-availability of the
products, and people suffered because of an unthoughtful and, if I may say,
unconstitutional act on the part of the court. The judiciary has to
understand that it may be expert in the fields of law and constitution,
however, economic issues do not fall within its purview. They have their own
complexities and dimensions and should be better left to the people with the
requisite know-how. A wrong decision by the court can expose the state to
huge economic losses as we are seeing in the case of Pakistan Steel Mills
where, because of judicial interference in the privatisation process, the
state of Pakistan has had to inject over Rs100 billion to keep the Steel
Mill running. It appears that unless the said project is privatised, the
state will have to keep injecting money at the expense of taxpayers and
citizens of Pakistan. Another aspect that must
be taken note of is that, under the present international investment
arbitration regime, an act of judiciary of a particular state will be
considered as an act of that state; it may expose the state to huge amount
of damages, if the investing party invoked the arbitration jurisdiction of
international arbitration tribunals. In some of the cases in which the
courts interfered in the recent past, (for instance the Reko Diq case) the
aggrieved parties have already invoked the jurisdiction of the international
investment arbitration tribunals and there is a risk that the state of
Pakistan may end up paying huge amount of damages to the foreign investors. In our common law legal
system, the judiciary’s job is primarily to decide issues between two
contesting parties and not to micro-manage the economic or policy issues.
The courts should exercise judicial restraint generally and more
particularly in the fields of economy, finances and business. An overactive
court may cause irreparable and long-lasting damage to the economy and
general welfare of the state. It may also ultimately result in
counter-action by the executive and legislature, thereby causing the
judiciary to lose its independence. An independent judiciary
is essential for the country; however, it should never be independent of law
and constitution. The writer is a practicing
lawyer. He can be reached at nmirza218@gmail.com
Expensive
and time-consuming Senior lawyers are
increasingly complaining about the fact that the superior judiciary seems
more interested in pursuing high-profile cases than hearing the cases of the
common man that gather dust in office files. Former Supreme Court Bar
presidents like Asma Jahangir and Tariq Mahmood have repeatedly brought this
issue up on the electronic media, referring specially to the Supreme Court. This is one of the reasons
behind the huge backlog of cases in the Supreme Court of Pakistan — on
December 14, the backlog was some 20,551 cases. In an effort to clear the
pending cases, the SC disposed off 565 cases between December 8 and 14, 2012
whereas 368 new cases were admitted during the same period. Reportedly, the
CJP tried to address the issue by constituting benches at the principal
seat, Islamabad, and branch registries. Senior lawyers, however,
believe that ordinary litigants continue to wait for the hearing of their
cases. “Only those cases which are highlighted in the media are heard in
the SC while common litigants and lawyers from cities other than Islamabad
and Rawalpindi have to suffer long delays,” says Munir Kakar, President
Executive Committee Balochistan Bar Council. “There is an estimated
expenditure of about Rs50,000 for a lawyer in Quetta to come all the way to
Islamabad for a day. In most cases, it seems the dates are assigned
whimsically,” he says. Another lawyers from
Lahore corroborates Kakar’s complaint, adding that the lawyers are
spending millions of rupees on making useless sojourns to Islamabad. Under the National
Judicial Policy (NJP), the courts need to clear their backlog by December
31, 2012. Judges in lower courts are under pressure from higher courts. They
are criticised for not giving lawyers enough time to make an argument. Kakar says “Justice has
become expensive. No media organisation and civil society organisation is
ready to highlight this side of an ‘independent judiciary’ because they
all are afraid of it,” he says. He believes the higher
judiciary is not ready to provide accurate data about the backlog. “I have
written a number of times to the Quetta High Court asking for details of the
backlog but it has not replied to my letters.” Faisal Chaudhry, a senior
lawyer, says actual backlog in the SC is more than 26,000 cases. “The
daily expenses of a three-member bench of the SC and its staff, including
their salaries, is Rs84,000. This is the tax payers’ money,” he says. “After 2009, suo motu
cases have become frequent while taking up the cases of the common man for
hearing is rare,” he says. — Aoun Abbas Sahi accountability Let me start by
stating a simple truth: rule of law is not the same as rule of the judges.
And confusion between these two has been the folly of the fabled Lawyers
Movement, which started with the exalted ideal of instituting rule of law in
our country, and eventually settled for the lesser goal of simply restoring
the deposed judges. In the aftermath of the
movement, the development of the idea of ‘independence of judiciary’ has
taken a life of its own. The talismanic power of ‘independence of
judiciary’ has been brandished to threaten the striking down of a
constitutional amendment, not fully investigate a prodigal son, silence
voices of dissent, and (most disturbingly) thwart all discussion regarding
judicial accountability. Judicial accountability,
in essence, is the idea that judges (entrusted with the solemn duty of
delivering justice in our realm) must be held to some standard of
intellectual, professional and personal integrity. As such, the
circumference of judicial accountability extends to encapsulate three major
areas: 1) material (financial) integrity, 2) intellectual accountability,
and 3) process accountability. The first of these —
material accountability — though simple in concept, is equally embattled
in practice, as exhibited by the emphatic refusal of the Registrar of the
Supreme Court to appear before the Public Accounts Committee, as
“decided” in “several Full Court meetings”. In so doing, the
Registrar has put forward soporific legal justifications surrounding
‘independence of judiciary’, spanning the Preamble, Article 175(3),
Article 68 and Article 81 of the Constitution (a comment on which falls
outside the purview of this discussion). Leaving aside contestable
legal justifications, one must ask: is ‘independence of judiciary’
really so fragile as to fall apart at the first whiff of external
accountability? Will an appraisal of the court expenditures, or how many
plots have been allotted to what judge, really compromise the independence
of our mighty judges? Does judicial independence mean that, de facto, upon
swearing the judicial oath, the concerned individual falls outside the
purview of all accountability (except by brethren judges, per Article 209)? The second strand —
intellectual accountability — is perhaps the hardest to quantify. It
entails a review of the court judgments (primarily by the legal fraternity)
against the yardstick of constitutionalism. There exists, however, a fatal
problem with this argument: in critiquing a judgment, especially of the apex
court, one can never claim that it violates the spirit of law because, by
definition, the law is what the judges interpret it to be! However, it is
one thing to skew the standards of justice — in cases such as the Arsalan
Iftikhar saga — but our courts, in several instances, have gone a step
further to blatantly disregard express provisions of the Constitution,
adopting interpretation contrary to their prima facie meaning (e.g. rhetoric
of their being no Presidential immunity despite Article 248, and reviewing
the ‘legality’ of Constitutional Amendments despite the bar in Article
239(5) and (6)). The responsibility of
keeping a critical check on judicial pronouncements rests with the legal
fraternity. However, either owing to lack of intellectual interest, or a
desire to placate the bench, or out of fear of contempt, we have
(collectively) failed in adequately discharging the responsibility. This,
coupled with the fact that voices of dissent have all but vanished from
within the superior judiciary (allegedly, in the interest of expressing
institutional solidarity), has meant that intellectual accountability of
judicial pronouncements is now a thing of folklore. The third — process
accountability — sounds benign, but in many ways is the most pervasive. At
the heart of process accountability is the idea of the Chief Justice being
‘pater-familias’ — father of the family — with absolute prerogative
over the formation of benches and allotment of cases. During the Eighteenth
Amendment challenge, a questioning of the idea of pater familias was
vociferously defended by the apex court, deeming any tinkering with the
administrative powers of pater familias as an attack on… wait for it…
yes, independence of judiciary! And consequently, despite voices of
discontentment, the administrative hegemony of the Chief Justice (of Supreme
Court as well as the respective High Courts) continues. No one can ask why
certain cases are heard day-to-day, while others are not taken up for
decades. No one can question why certain ‘sensitive’ matters are only
ever heard by select few judges, handpicked by the honourable Chief Justice.
No one can inquire why certain judges (who sometimes fall out of favour with
the Chief Justices) are briefly ‘sent away’ to far away benches (even in
violation of Article 198(5), which mandates that, in the High Courts, each
nomination to a bench shall be “for a period not less than one year”).
And any framework to rid the system of individual prerogative is seen not as
a step towards institutional accountability, but instead a threat to its
independence. And what about
accountability for the countless judicial (read: political) speeches to
different bar councils? What part of the constitution is that judicial
responsibility derived from? Propriety aside, at its core, addresses to the
district bars are nothing more than an implicit way of rallying the troops,
during times of constitutional turmoil. A way of tending to the
constituency. (In fact, bar elections now take place along the pro and
anti-judiciary divide). When will the realisation set in that the Lawyer’s
Movement is over? Should there
be no accountability for blurring the line between judicial duty and
political claims? Does that not affect judicial independence? Is it not the
‘tending to your constituency’ mindset that resulted in superior
judiciary brokering peace between lawyers who thrashed Sessions judges,
instead of taking action against the culprits? Do the lawyers from these
district bar rallies, not appear before the bench every day? Can the
honourable judges really be independent in deciding their cases, the morning
after they have had a quasi-political rally together? And if this close
proximity and relationship does not shake the strong foundations of judicial
independence, then can someone please explain how Registrar’s appearing
before the PAC, or automating the bench-formation process shatters it? A belief that judicial
accountability somehow militates against judicial independence is tragically
incorrect. Only a judiciary that is transparent in its conduct can hope to
command the moral authority which forms the quintessence of the empire of
law. Refusal of the judges to
open themselves for accountability finds support within a segment of our
society that has not yet recovered from the hangover of the ‘Chief terey
jaa’nisar’ syndrome. This battle-cry, whenever invoked, shuts all doors
of reason, and pledges fidelity to an ethos which is neither legal in
nature, nor moral of virtue. And this unthinking subservience to
individuals, instead of the law, is rotting our legal fabric. It is time to snap out of
the hypnosis and accept the fact that judiciary is a collection of human
beings who are prone to make an error from time to time. Their
accountability mechanism must graduate from being isolationist in nature to
becoming more pluralistic. It is time to open the doors of judicial mystique
to the public at large — the final custodians of our Constitution. The writer is a lawyer
based in Lahore. He has a Masters in Constitutional Law from Harvard Law
School. He can be reached at: saad@post.harvard.edu
Hegemony
of the process A tug-of-war over
the judicial appointment process has been at the heart of the tussle between
the executive and the judiciary over the past two decades. Prior to the Al-Jehad
Trust case (PLD 1996 SC 34), the president of Pakistan (the constitutional
appointing authority) had some role in the selection and appointment of the
superior judiciary, “after consultation with the chief justice” (per the
then Article 177 of the Constitution). In Al-Jehad Trust, the Supreme Court
held that “consultation” of the Chief Justice, in regards to appointment
of judges, was binding on the president (who, in exceptional circumstances
could reject chief justice’s nominee by giving written reasons, which
would be justiciable before the court).
In effect, starting with Al-Jehad Trust, the chief justice of
Pakistan became the de facto authority for judicial appointments. In the aftermath of the
Lawyer’s Movement, when the 18th Constitutional Amendment was passed, the
judicial appointment process was changed with the insertion of Article 175A.
The new procedure envisaged a three-step process, with recommendations
initiating in the Judicial Commission, having a majority of the members from
the judiciary (serving and retired), and included the Law Minister, the
Attorney General and a representative of Pakistan Bar Council.
Recommendations from the Judicial Commission were sent to a Parliamentary
Committee (with equal representation from Senate and National Assembly, as
well as government and opposition), which could either reject the nominee
through a three fourth majority or confirm the same through majority within
14 days, failing which the nominee stood automatically confirmed. And as a
final step, the President, on the advice of the Prime Minister, would notify
the appointee. This infusion of “outsiders” into the judicial
appointment process was deemed so offensive to the tender fabric of judicial
independence that the Amendment was challenged before the apex court, and
nearly struck down, only to be saved by Parliament’s passing of the 19th
Amendment which increased the representation of judges in the Judicial
Commission, confirming their dominance over the appointment process. Subsequently, in early
2011, the people’s representative in the Parliamentary Committee dared to
show some tenacity by not confirming some recommendations of the Judicial
Commission. This belligerent exercise of opinion was challenged before the
Supreme Court, and declared to be an infringement of (once again)
“independence of judiciary”, thus making the Parliamentary Committee
(people’s representation) merely a procedural rubber-stamp in the judicial
appointment process. The only issue that now
stood between the judiciary having complete autonomy of the judicial
appointment process was whether the president (or the prime minister) had
any authority to reject a nominee of the Judicial Commission, if the same is
deemed to be violative of the Constitution. And this issue forms the core of
the pending Presidential Reference in the matter of appointing a new Chief
Justice to the Islamabad High Court. It is being contended by
the government that the Judicial Commission, in recommending a junior judge,
Justice Kasi, for Chief Justice of IHC, has violated the Constitution and
conventions thereof. And whether, the oath of office of the President, and
more importantly, that of the Prime Minister, requires them to not confirm
an appointment in violation of the Constitution. The idea of Presidential
(or Prime Ministerial) interference with recommendation of the Judicial
Commission is being resisted on the basis of, inter alia, violating judicial
independence. It has been argued that opening a window today, however small,
for the executive to review recommendations of the Judicial Commission will
tomorrow translate into a sprawling battle. And that, therefore, the role of
the executive (like that of the legislative committee) should simply be that
of a rubber-stamp. In our democratic
dispensation, the people of Pakistan, through their elected representatives,
write the law of our land — in the solemn belief that they will be
governed in accordance with their will and aspirations. This law eventually
finds authoritative meaning in judicial pronouncements. However, since
judicial philosophies and approaches can vary among individuals, two judges
(a conservative and a liberal) could, on a given set of facts, interpret the
law in ways that arrives at absolutely opposite conclusions. And those
conclusions, as judgments of the court, govern the contours of our freedom.
Is it then not true that the people have a stake in who gets to interpret
and apply the law in our land? And if so, does this right (to be governed
according to a legal ethos of their choosing) not warrant that the people,
through their elected representative, to have a voice in the selection and
appointment of judges? Must a small group of unelected “old white men”
(in the words of Dicey) be entrusted with the absolute and unfettered
authority to pick the arbiters of our rights? Keeping aside the jealous
conception of a precariously brittle ‘independence of judiciary’ — not
having people’s voice be a part of the judicial appointment process takes
the counter-majoritarian idea to the edge of being undemocratic. |
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