Tuesday July 05, 2022

Extending judicial review

January 01, 2017

Each day, the superior courts of the country judicially review and scrutinise the conduct and affairs of public, statutory and even constitutional bodies and strike down or uphold actions. However, at the same time, the courts have not extended the process of judicial review to themselves.

For the longest time, the high courts have held that their executive and administrative decisions cannot be challenged through the constitutional remedy of writ petitions. This view had previously been upheld by the Supreme Court, and resulted in persons employed by the high courts and candidates for civil judges exams and others affected by the high courts’ administrative and executive orders being left without real remedies.  However, only recently, the Supreme Court in the Islamabad High Court appointments case struck down appointments by the high court. It held that the bar of judicial review extends only to the judicial orders of the high court and all other orders can be challenged and examined through writ petitions.

Despite this major – and quite welcome departure – from past jurisprudence by the Supreme Court, the high courts still seem to be reluctant to fall in line with this new development. For example, petitions regarding the upcoming civil judges and additional sessions judge posts are still being dismissed on the question of maintainability by the Lahore High Court. This article proposes that to continue to do so will lessen the public perception of the judiciary as an institution because it suggests that the courts are saying that the law and open accountability do not apply to them and their orders. This needs to change.

Admittedly, our constitution limits the powers of judicial review against the high courts. In certain matters, there is logic to this. One would not want judges striking down each other’s orders – in a sense, going to war with each other – or the orders that concerned them personally. Recently, for example, a case regarding the seniority of the Lahore High Court judges was appropriately taken directly to the Supreme Court. One would not want to deal with the drama of having judges of the same court – who themselves would be affected – determining each other’s seniority within the writ jurisdiction.

Regarding the judicial orders of the courts, the law provides for intra court appeals, petitions for leave to appeal or direct appeals before the Supreme Court. As a result, providing writ petitions in this context as well will not be appropriate. It is, however, because the courts have also taken these arguments as the basis of completely barring other, administrative and executive orders of the high court, that problems arise.

Those affected by the executive, administrative or other non-judicial orders of the high courts, in effect, have no real remedies under the law. The Supreme Court does not entertain direct petitions regarding orders against individuals as it is held that such orders concern individuals and do not concern matters of public importance. If at all the orders of the high court chief justices are taken up by way of representation before the administration committee of a high court, it is rare for any representation or, for that matter, review, to be entertained against an incumbent chief justice’s order. In addition, this a closed door forum where the petitioner does not get a hearing and, often times, no reasons are given for the dismissal of a petition. Each of these are factors which, if present in any other executive authority’s orders, are consistently held by the courts as a basis for those orders to be set aside. This is, as the courts observe as regards others, unjust and violates due process and natural justice.

It is particularly unfortunate that this bar has been extended to matters concerning the process of the appointment of civil judges and additional district judges – a process which has even otherwise become increasingly shrouded in secrecy.

In the last tranches of judicial appointments in the lower courts, the Lahore High Court took to only indicating to candidates whether they had passed or failed. Aggrieved, the unsuccessful candidates insisted on being told what marks each of them scored and what papers they had failed in. However, the court refused. Some candidates were initially told that they had passed and then informed that they had, in fact, failed. When they filed writs, they were not entertained. Some candidates were banned for life from applying again on account of withholding information while others who did the same were only rejected.

When the candidates who had been banned challenged this decision on the grounds of discrimination, the writ was turned down – not on the basis of merit but for not being maintainable against the high courts, notwithstanding the recent Supreme Court judgement. In the latest advertisement for civil judge posts, the court has even withheld the number of posts that are to be made available.

Previously, when these concerns were raised on a bar to bench level, the learned judge in charge of the committee countered by saying that the committee was high powered and should be trusted to make an honest decision. It is argued that the question has never been that. On the contrary, it is about ensuring institutions and systems – and not people and the process – are transparent and open and do not give rise to criticism or doubts.

It has often been said that justice should not only be done, but should be seen to be done. The high courts, in their dealings, must satisfy and show to the public that justice is being done regarding their own affairs. ‘Trust us’ is not a sufficient argument and undercuts the court’s moral authority. When matters get couched in secrecy, then doubts arise. This is precisely why the judiciary should be the most transparent and open of all institutions.

There is also a more fundamental point at stake: the high courts – empowered and entrusted to apply the law to all and demand transparency – should apply the same criteria to themselves as well. When the constitution talks of equality, it talks of all the institutions and people. Transparency and openness would add to high courts’ respect and moral standing. Even if there were legal arguments available to support the present stance of the high courts, the courts should hold themselves up to a higher standard of probity and transparency, rather than a lower, technical one.

This article should not be taken to suggest that transparency should be ensured at the high court level alone. Accountability and transparency should also be ensured at the Supreme Court as well, which should itself ensure similar transparency regarding its own accounts.

The superior courts of the land need to realise that allowing their own administrative and executive orders to be challenged and decided on the merits of each case, will only add to the respect for the institution. It will also void the impression that judicial review is just available against others.

The writer is an advocate of the Supreme Court of Pakistan and the managing partner of Qayyum & Associates at Lahore.