Supreme court vs parliament

Public focus on the ‘independence’ of the judiciary has politicised the conduct of the Supreme Court.

The Supreme Court has rejected a parliamentary committee’s decision not to grant extensions to six high court judges and directed the government to issue the appointment notifications. A four-member bench of the apex court says the committee’s decision is “contradictory to the Constitution”. The parliamentary committee (PC) was set up in the 18th and 19th Amendments, with a bipartisan consensus in parliament, keeping in view the power and sensitivities of the Supreme Court.

The PC had denied one-year extensions to four additional judges of the Lahore High Court and two of the Sindh High Court “on the basis of assessments provided by the respective chief justices, based on the judges’ conduct and character”. The honourable Supreme Court has jurisdiction of review under the Constitution and has adjudged the reasons given by the PC for rejecting the extensions as not admissible.

There are factors to be studied to find out why the decision might be considered controversial. The matter is related to the developments in the wake of the lawyers’ movement and the restoration of the Supreme Court under Chief Justice Iftikhar Muhammad Chaudhry. A polarity developed between the executive — which had dragged its feet on the question of restoration, after earlier agreeing to it — and the judiciary. After that, because of the misconduct of some elements within the lawyers’ community, there was a split within the legal community itself, which then led to a change in the elected leadership of the Supreme Court Bar Association in favour of critics of the Supreme Court’s assertion of authority.

After the Supreme Court passed a unanimous resolution to hand out extensions to two of its retiring judges, there was criticism from some legal quarters. The critical lawyers referred to the inadvisability of relying on ad hocism in the light of the famous Al Jihad judgement, but the fact remained that ad hoc appointments were allowed by the Constitution. In the case of extensions being granted to six high court judges, the PC gave a split decision, not agreeing with ad hoc appointments.

Since negative remarks recorded by the concerned chief justices of the concerned high courts have become known, one can understand why the committee was unwilling to okay the cases. Some remarks were as follows: 1) Not at all quick in the disposal of work; 2) A ‘novice’ in legal issues and slow; 3) Not inaccessible, indulging in loose talk, rigid and prejudiced; 4) Status-conscience, moving in ultra-modern circles, indifferent in conduct to the public. The Supreme Court has adjudged the above reasons as non-applicable because the only way a judge at the higher judiciary can be subjected to any rejection is through scrutiny at the Judicial Commission provided by the Constitution. It should also be noted that inside the PC, the political representatives were split over the rejection. The PML-N was not on board with those representing the PPP. From this angle, the dice was loaded in favour of the honourable Court and its unanimous resolution to use ad hoc judges to take care of the load of work.

Some observers have noted that, in principle, ad hocism in judicial appointments is not a good thing, either on the part of the executive when it has the authority to induct judges, or the Court itself. They cite the case of India where ad hoc appointments at the Supreme Court are unknown. Given the current situation in Pakistan, unfortunately, public focus on the ‘independence’ of the judiciary — long absent under authoritarianism of all sorts — has politicised the conduct of the Supreme Court.

The best course is the middle course, where a balance is struck between the functions of the executive and the judiciary. Any trespass of one into the domain of the other — even when public outcry demands such trespass — will come to grief. And that includes judicial ‘activism’, even when it means to set the flaws in the executive function right. That is why in all judiciaries whose history is known to the world, there is a subtle process of give-and-take between the various pillars of the state — with respect for the Court accepted as the foremost obligation of everyone.

Published in The Express Tribune, March 6^th, 2011.