In the name of justice?

Legal eye

The writer is a lawyer based in
Islamabad.

Is the gap between the administrative actions of our judges and demands of fairness and justice growing into a yawning chasm? Is it conceivable for judges to be fair and neutral arbiters of the law in their judicial capacities, but inequitable or even nepotistic when it comes to administrative matters? If judges exhibit the propensity for favouritism in matters of appointments and promotions, would reasonable minds not question their ability to dispense justice without considerations of fear or favour?

It is true that public morality and ethics are in an abysmal state in Pakistan, and those endowed with judicial authority do not grow up in a vacuum. They are products of our society and the prevailing socio-economic environment shapes their morality and ethics as well. But by virtue of their function of sitting in judgement over fellow beings – deciding the fate of people, ruling on their right to live even – the judicial office becomes a sacred trust and can admit of no mortal failings that other public offices might be able to endure.

It is thus that citizenry bows before a peer who dons judicial robes. Our constitution guarantees freedom of speech and the law gives an average citizen considerable latitude to interfere with the privacy of a public office-holder, but vows to punish anyone who tends to scandalise a judge. Our courts have themselves explained that the purpose of the contempt law is not to protect the honour or ego of the person of the judge, but public faith in justice itself, which is intrinsically linked to faith in the integrity of the dispenser of justice.

There is consensus across Pakistan that our justice system is broken. Such was our desperation that faced with a menacing terror threat, our parliament even legalised military courts. The Senate recently made substantial recommendations for ‘provision of inexpensive and speedy justice’. But streamlining laws, procedures and timelines is only half a solution. Even with all automation, the output of our justice system will depend on the quality and integrity of the human resource comprising the judiciary and the manner in which it exercises discretion.

It is the exercise of administrative powers and discretion by our judges that raises the apprehension that they aren’t just fallible but extremely prone to error. This is damning because, to state the obvious, it is judges who determine what amounts to fair and just conduct in exercise of state authority and it is they who are meant to act as a check against its abuse by public office-holders. Can they be oblivious in personal conduct to what they preach to others on a daily basis?

On August 3, 2015 the Peshawar High Court advertised 25 vacant posts of additional district and sessions judges and invited applications from eligible lawyers. The candidates were to be administered a written exam in three subjects: General Knowledge and English; Civil Law; and Criminal Law. The criteria for qualification stated the following: “The qualifying/passing marks are 45% in each written paper and 55% in aggregate of all papers. NOTE: No candidate shall be summoned for interview unless he/she obtained the requisite marks.”

The ‘Special Instructions’ included in the advertisement further stated that, “no candidate shall be summoned for interview unless he/she obtained 45% marks in each written paper and 55% marks in the aggregate. No candidate shall be considered to have qualified for appointment unless he/she also passed the interview…” The advertisement or the special instructions did not however provide the criteria to be used for evaluation during the interview or even the weightage to be accorded to the interview in relation to the written exam.

The Peshawar High Court hired an independent firm to administer the written exam. The exam was conducted, and then followed by interviews by senior most judges of the court. The court’s website (www.peshawarhighcourt.gov.pk) has on display the initial advertisement, the result of the exam and interview, and the list of successful candidates who have been issued appointment letters. While the names of the lucky winners are stated, amongst the losers (to borrow Justice Stevens’ thought from Bush v Gore) must be listed public faith in the integrity of the court’s decision-making process.

According to the lists displayed on the court’s website, 15 out of the 25 newly nominated additional district and sessions judges failed at least one subject in the written test. It is obvious that they were invited to the interview in breach of the published criteria for interview eligibility (ie mandatory requirement to pass all subjects and achieve an aggregate score of 55 percent in the written exam). And further that the written exam was such poor measure of the ability of candidates that a majority of those who had failed it shone through the interview and clasped the judgeships.

Can the rules of the game be changed mid-game? Can those who fail under prescribed criteria be declared successful by tailoring the criteria after the results have come in? Should the weightage to be accorded to interview as a component of the overall assessment not be stated upfront? Imagine that the procurement process wasn’t being run by a high court, judges hadn’t devised the criteria and didn’t comprise the selection committee. What would be the outcome of a petition challenging such process and its outcome?

Our constitutional courts adjudicate such cases every day. They wag their fingers and pass strictures against public office-holders who procure goods and services in such manner that the integrity of the process isn’t beyond reproach. They explain in their judgements the distinction between rule of law and rule of men, they declare with genuine pride that the days of monarchs and unfettered discretion are over, that state largess, jobs and contracts etc aren’t the personal property of public office-holders but a trust to be discharged as fiduciaries.

They explain that any decision that is not just, fair and reasonable is a breach of the General Clauses Act. They hold that nepotism or discriminatory treatment meted to anyone is a breach of everyone else’s right of equality, dignity and a meaningful life protected under articles 25, 14 and 9 of our constitution. The remind the executive that while it is not for the court to step into the shoes of decision-makers, it is their duty and responsibility to intervene in face of blatant acts of unfairness that scuttle the legitimate expectations of ordinary folks.

Article 199 of the constitution, the most effective shield as well as tool for the ordinary citizen to seek enforcement of his fundamental rights, excludes “high courts” from the definition of a “person” against whom writs can be issued. So where should unsuccessful candidates interested in becoming district judges in KP take their grievance if they believe that the manner in which the appointment process was run lacked integrity and that they have been wronged by the very high court that is the protector of rights in the province?

But to single out the Peshawar High Court would be unfair. When the Islamabad and Lahore high courts hired judges for their respective district courts, innumerable questions were raised about the integrity and transparency of the process. One dreads to think what the outcome might be if some public-spirited individual or organisation were to compile a list of district court judges related to superior court judges. The process of appointments and confirmations within the superior court judges is far from transparent as well.

Within our state structure, the judiciary is the vanguard of our constitution as well as the defender of our fundamental rights. Can it do justice to its trusteeship of the constitution and fundamental rights if it struggles to abide by principles it seeks to judge others by?

Email: sattar@post.harvard.edu