By Babar Sattar
Instead of concocting a witches’ brew in the law ministry and the attorney general’s office, institutional reform of the judiciary is what PPP’s legal eagles should attend to. The recent High Court appointments have been even more shocking in this regard. There can be no bigger sin than stuffing chambers of justice with incompetent political appointees who will continue to torment this country and its jurisprudence for the next two decades. Zardari-led PPP has made no attempt to follow the transparent and consensual process for judicial appointments proposed and agreed upon in the Charter of Democracy, a compromised version of which was also included in PPP’s draft Constitutional Amendment Bill. Even if such process is not yet a mandatory legal requirement, nothing prevented the ruling party from following it as a matter of policy. Worse still in appointing new High Court judges, even the mandatory consultation with the chief minister under our existing constitutional framework was not undertaken, at least in the Punjab.
Other than upholding the constitutional guarantee for security of judicial tenure, independence of judiciary requires wider distribution of the dictatorial administrative powers presently vested in the office of the chief justice. Is it not unbelievable that if seven men – chief justices of High Courts, chief justice Pakistan and the chief election commissioner – agree to collude with the head of the ruling regime, they can rubbish all constitutional guarantees and checks and balances that are meant to sustain competitive democratic institutions in the country, and reduce our constitutional democracy into an autocracy? For example if Justice Dogar and the court headed by him has consistently rendered judgments that prove favourable to Mr. Zardari’s agenda, what will be the utility of challenging the imposition of governor’s rule before such a court (especially when the decision of our apex court disqualifying Shahbaz Sharif was the cause of a “constitutional void” that justified the imposition of governor’s rule in the first place)?
In the event that Salman Taseer’s politics of intimidation, extortion and money actually works in buying away more PML-N members in the Punjab, and the PML-N party head seeks the disqualification of such dissidents, the ultimate decision regarding disqualification will have to be rendered by the chief election commissioner and finally the Supreme Court. If the two individuals heading the election commission and the Supreme Court agree to reckon with “ground realities” and side with interests being pursued by the Zardari-led PPP, what recourse to justice does the other side have? The need to hanker after judges that offer some promise of independence and integrity only arises because the system vests too much authority and discretion in the individuals who occupies the top judicial offices.
Thus even in a Supreme Court as large as our present one, all Justice Dogar or any chief justice heading the apex court needs is two other compliant judges to sit with him and decide all matters before the court that are of any political significance for the ruling regime. It would not matter that the rest of the court comprised judges who were emblems of judicial independence, propriety and wisdom. The incumbent chief justice can single-handedly determine the image of justice as well as that of its guardians for the whole country. There is urgent need to reform this lopsided distribution of judicial power. Each chief justice must only be the first among equals in his court and unable to use or abuse his powers to constitute benches and fix cases at will, in his own interest or on behest of the ruling regime.
Lord Acton had correctly observed that “power tends to corrupt, and absolute power corrupts absolutely.” Such vulnerability of human beings highlights the need to distribute the administrative power of the court widely enough among the senior-most judges of such court, to disable any chief justice from impinging on the judicial independence of individual judges of his court through exercise of his administrative powers. As has been pointed out before, the PPP could propose to dilute the monopoly powers of the chief justice as a way to guard itself against its misplaced fear that restitution of Chief Justice Iftikhar Chaudhary would precipitate a judicial vendetta against the Zardari-led PPP. But such suggestion is based on the assumption that the ruling regime is actually interested in creating an autonomous court system with widely distributed judicial and administrative powers that is resistant to being hijacked by a hostile chief justice or an interfering executive.
The long march is just around the corner and it is imperative that the lawyers’ leadership clearly articulates a vision that encompasses wider reform of our justice system and does not limit itself to the singular goal of restitution of the still-deposed judges. Chief Justice Chaudhary and other deposed judges must be restored to undo a wrong and for the many other reasons already elaborated in this column. But they must not be presented as messiahs capable of singularly delivering this nation a rosy future. Our problem of injustice is an institutional one and its solution also lies in an institutional response. We do need individuals of integrity and capability to lead this reform process. But individuals alone will be unable to swerve us away from the precipice.
Restitution of deposed judges must constitute only the first step in pursuing a wider reform agenda that includes (i) enhancing the number of judges that serve this nation, (ii) improving their service conditions to ensure that judiciary doesn’t become an abode for the lazy, the corrupt and the incompetent, but actually attracts the brightest legal minds, (iii) appointing superior court judges through a wider consultative process that sifts through all the available talent and elects those with established credentials and unimpeachable integrity to become vanguards of our Constitution, (iv) distributing the administrative powers of the court, presently monopolized by the office of the chief justice, widely among senior judges to guard against their abuse, and (v) requiring lawyers to abide by ethical professional norms in their legal practice and enforcement of a staunch ethical code by bar councils.
The lawyers’ movement needs to define an agenda for reform of the justice system that resonates with citizens vexed by an ineffectual and corrupt legal system. It is about time we enunciate a vision for the future that inspires this nation not only to look forward to the success of the long-march and “dharna”, but beyond that toward the trickle-down, into their personal lives, of the gains made through a successful mass movement for rule of law and justice. And to this end, Chief Justice Chaudhary can announce that once restored to his rightful office, he will voluntarily lead the process of judicial reform, starting with a redistributing of the monopoly powers of the chief justice office.
(Concluded)
The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School. Email: sattar@post.harvard.edu