The US constitution is the longest surviving constitution in the world. Drafted for a democracy, it provides for the separation of power between the executive, legislature and judiciary to ensure accountability and check misuse of power. This separation of powers between the three pillars of state is fortunately enough, also present in the constitution of Pakistan.
The legislature and executive have for the most part of our history remained on the same team. Our legislature is not known to exercise its check over the executive. A legislator voting on any issue independently of the party’s stance is rare. As for the opposition, it has often been accused of being a ‘friendly opposition’.
This esprit de corps that exists between the executive and the legislature is, however, absent between the executive and the judiciary; exactly how it is principally supposed to be. Historically, in Pakistan it has been the executive that has always one-upped the judiciary. The attack on the Supreme Court building during the second tenure of Nawaz Sharif as PM and the house arrest of Chief Justice Iftikhar Chaudhry during General Musharraf’s presidency are two notable examples.
However, this decade has seen a shift in this scenario whereby the judiciary has now at least leveled, if not turned in its favour, the balance of power. It began with the ouster of Yousaf Raza Gillani as PM by then chief justice Iftikhar Chaudhary, on a charge of contempt of court. Presently, the Panama case is the perfect example of the exercise of checks by the judicial branch over the executive. This is a good step towards the pursuit of democracy that the judiciary has finally established its power to exercise check over the executive head of state.
To quote one from the literature, ‘with great power comes great responsibility’. While the judiciary has some checks over the executive and the legislature, it itself is subject to some checks by the other two pillars of state. As per the US constitution, the executive has the power to appoint the justices of the Supreme Court and other federal judges. The Senate has the power to approve the appointment of judges and the legislature can remove judges through impeachment.
But in Pakistan, gradually a system has been shaped where the judiciary can only be held accountable by the judiciary itself. There is no argument that independence of judiciary is vital for a democracy but without accountability, some excesses risk to occur; as was seen by ex-PM Zulfikar Ali Bhutto. In an unprecedented move, his trial for murder was conducted before the High Court and not the Sessions Court. The recent case of a child maid’s torture employed at the house of an additional district and sessions judge in Islamabad is another example.
Originally as per our constitution, the president had the power to appoint justices to the Supreme Court after consultation with the chief justice. The landmark judgment of al-Jehad Trust (PLD 1996 SC 324), followed by Asad Ali’s case (PLD 1998 SC 161), declared ‘consultation’ of the chief justice, in the case of judicial elevations, binding upon the president, thereby granting chief justice the sole prerogative of recommending individuals for judicial appointment. Through the 18th and 19th constitutional amendments, a ‘Judicial Commission’ — headed by the chief justice, and comprising a majority of judges — was constituted in order to recommend candidates for elevation. However, the sole authority to initiate a candidate’s name, for consideration by the commission, remains with the chief justice, who is not bound to provide any reasons for his preferences.
The superior judiciary enjoys tremendous immunity in the form of removal proceedings of superior court justices as such proceedings are conducted by peers of judiciary only. Moreover, no time frame is set for proceedings before the Supreme Judicial Council. In the UK, for impeachment of superior court judges, the House of Commons holds the power of initiating an impeachment. The member must support the charges with evidence and move for impeachment. If the Commons carries the motion, the mover proceeds to the House of Lords to impeach the accused ‘in the name of House of Commons, and all the Commons of the UK’. The Lord Chancellor presides the hearing which is like any ordinary trial. Both sides can call witnesses and present evidence. At the end of the hearing and after all have voted, a Lord must rise and declare the verdict.
In Pakistan, there is restriction on even discussing in parliament the conduct of any justice of the High Courts and the Supreme Court. Until 1976, defendants charged with contempt of court had to submit an unconditional apology before they could even commence their defence. As Lord Atkins observed in Ambard vs Attorney General of Trinidad and Tobago, “justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
The time is ripe for the judiciary to self-initiate reforms for its accountability so that no scandal can reverse the gains made over a very long period. Chief justice of the Lahore High Court (LHC), Justice Mansoor Ali Shah has set a good precedent by making public his money trail, even though the petition demanding him to do so had been dismissed by the Islamabad High Court, on grounds of its non-maintainability. He has also introduced reforms for appointing judges to the bench at the LHC, whereby he is no longer the sole gatekeeper for nominations to the bench. If such initiatives continue, by losing little, the judiciary will emerge ever stronger. Godspeed!
Published in The Express Tribune, August 3rd, 2017.