This too will pass

Superior courts don't hesitate to remind government officials that power has responsibility; applies equally to judges

Analysts and pundits of a jiyala persuasion have taken much delight in circulating excerpts from a report issued by the International Commission of Jurists (ICJ) that is somewhat critical of the Supreme Court. Is the criticism justified? Not entirely, at least, not in my view.

The ICJ report makes a number of points regarding Pakistan’s superior judiciary. It is critical of the judgment in the Nineteenth Amendment case relating to the appointment of judges; it notes criticisms regarding the quality of judges appointed under the current Chief Justice; it raises a number of concerns regarding the use of suo-motu powers; and it asks whether the judiciary’s recent fondness for activism has caused it to encroach upon the province of the executive.

In my view, the fundamental problem with the ICJ report is that it approaches matters from an overly academic perspective. The ICJ report thus criticises the Supreme Court’s views regarding the appointment of judges by arguing, in effect, that (i) international best practices allow for a degree of political involvement in the appointment of judges; (ii) the Supreme Court’s hostility towards political involvement in judicial appointments was unwarranted; and (iii) the Supreme Court acted wrongly in the Munir Bhatti case by “reduc[ing] drastically” the powers of the parliamentary committee in relation to appointment of judges.

There are multiple problems with this approach. To begin with, the appointment of judges is not an ahistorical political choice that can be contrasted with some bland list of international precedents. Furthermore, Pakistan is a common law country and hence references to appointment mechanisms in Civil Code countries like Bolivia and Switzerland are irrelevant. More importantly, Pakistan shares a particular Anglo-Indian legal culture with India and Bangladesh and it is within that context that Pakistan’s jurisprudence must be analysed. Had the ICJ undertaken that exercise, it would have noted that the current appointment mechanism is no different in its fundamentals from the appointment mechanism prescribed by the Supreme Court of Pakistan in 1996 (via the Al Jehad case) and by the Supreme Court of India in 1994 (via the Advocates on Record case).

One point on which I do agree with the ICJ report relates to the shortage of judges. However, while the report only deals with the issue in passing, for me this is the ground on which the judiciary deserves to be most heavily criticised.

The power to appoint judges is a power that the judiciary has repeatedly fought for. With the passage of the Nineteenth Amendment and the decision in the Bhatti case, there is no legal or formal obstacle in the path of the various chief justices in appointing persons of their choice. And yet, the situation in both the Lahore and the Sindh High Courts is that there are a vast number of vacancies. I am sure that the various chief justices have no greater priority in their lives than the appointment of new judges. At the same time, the fact remains that almost 50 per cent of the Sindh High Court, and about 30 per cent of the Lahore High Court are missing.

The superior courts in Pakistan do not hesitate in reminding government officials that with power comes the responsibility to properly exercise that power. That advice applies equally well to their Lordships. It is also worth noting that the situation could have been a lot better had the Supreme Court not insisted on the wholesale removal of all “PCO judges”, but instead attempted to sift through the appointments and retain the properly qualified.

Most of the ICJ Report is taken up with a discussion of the problems arising from the Supreme Court’s embrace of judicial activism, inter alia, through the use of suo-motu cases. The discussion is finely nuanced and it makes a number of important points. For example, I agree it would be a good idea if the Supreme Court was to formulate clear rules regarding the acceptance and hearing of public interest cases. The relationship between the Supreme Court and the media is indeed one that needs to be examined. And the Supreme Court’s embrace of judicial activism does regularly encroach upon the policy prerogatives of the executive.

Where I part ways from the ICJ report is again in relation to its failure to provide a broader context. More specifically, public interest litigation and judicial activism in Pakistan need to be examined, both within a broader South Asian context, as well as within the specific context of Pakistan’s history.

Within the broader context of South Asia, the point to note is that judicial activism has been a consistent response to governmental failure. As activist as the judiciary in Pakistan has been, our embrace of public interest litigation pales to all that the superior judiciary in India has done (and continues to do). Pakistani courts rely regularly on Indian precedents in deciding uncontroversial matters. That same reliance carries over into matters of public interest.

Within the narrower context of Pakistan’s recent history, it is important to note that many of the current judges were returned to power by a popular movement: like freshly elected members of Parliament, they have debts to pay. The votaries of the Judicial Revolution swore up and down the length and breadth of this country that, from war to pollution, the return of the ‘asli munsif’ would fix all our problems. Yes, the judges themselves made no such promises, but they watched and heard those promises be made. If today they err on the side of judicial maximalism, it is an understandable response.

The people of Pakistan are often told that the solution to bad democracy is more democracy. Much the same approach applies to judicial overreach. Just like we have no option but to grin and bear the antics of our political leaders, our political leaders have no option but to grin and bear the foibles of the Supreme Court. I concede that in the case of the judiciary there is no mechanism of accountability similar to the ballot box. Nonetheless, judges do operate with one eye turned towards posterity and judicial fashions do change over time, much like rising and falling hemlines.

Today is the era of judicial activism. This too will pass. Till then, we have to grin and bear it.

Published in The Express Tribune, April 24^th, 2012.