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Legal Eye

May 24, 2008
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Packaged justice

Opinion

May 24, 2008

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It is premature to comment on the merit of the PPP's constitutional package on the whole, as information regarding its content is scanty. From media reports and the law minister's musings it seems that the package will have two components: one, that which attempts to rebalance distribution of executive authority between the president and the prime minister in favour of the latter, by repealing Article 58(2)(b) and taking away the president's discretionary authority to make key executive appointments; and, two, that which seeks to introduce "institutional" reform to the judiciary. It has also been hinted that the language of Article 6 (the treason clause) will be beefed up to bring within its fold judges and other state officials who abet subversion of the Constitution.

Article 58(2)(b) is indefensible, undemocratic and vests in the president a discretionary authority that will always be abused. It must therefore be repealed. But while finding ways to fix the text of the Constitution, let us be cognisant of the limitations of the law itself. Article 58(2)(b) empowers the president, who traditionally acts on behest of the establishment, and especially the army chief. But the absence of such arbitrary authority did not deter Gen Musharraf from imposing martial law in 1999, or his predecessors, for that matter. Likewise, the actions of Nov 3, 2007, were clearly unconstitutional, and the general graciously admitted so himself. And yet we are mired in meaningless legalism and technical debates on how to "legally" undo such illegal acts, while continuing to adhere to the general's unconstitutional diktat.

Pakistan has not suffered martial laws because our law is badly written, nor have our dictators gone unpunished because Article 6 has loopholes. The malaise afflicting us is that as a nation we lack a culture of legalism; we treat law as a nicety, which, if it gets in the way, could be disregarded or bent to serve the whims of the powerful. Those in power

exhibit an ability to persuade or coerce others to bend the law and defy fundamental principles of fairness, and by making our peace with such "ground realities" we help entrench such lawless culture. It manifests itself at the highest level in exercise of state authority when a Gen Musharraf overthrows an elected government by force or illegally detains our highest judicial officers, or in everyday life when someone gets ahead of you in a line because he knows the clerk and the person objecting to such impropriety gets mocked for being unreasonably pedantic.

This culture of extra-legalism continues to thrive in part due to social acceptance. The one breaking the queue at a traffic signal always knows that he will be accommodated ahead of those who have waited longer. Likewise, judges who eagerly swore an oath to the general's PCO, or others like Ahsan Bhoon who sold out the collective sacrifices of their fraternity to purchase a ticket for personal advancement, feared neither legal reprisal nor social isolation. And their judgment has been largely vindicated with the PPP bending over backwards to accommodate them in their present positions. But moving on from the limitations of legal texts (due to their inability to be self-executing and their reliance on human facility), let us consider some of the judicial reforms being proposed by the PPP.

The PPP wishes to fix the tenure for the office of chief justice while also increasing the retiring age of judges. The reasons given seem simple enough. It is reasonable for the office of the chief justice to have a fixed term as all executive and legislative offices also have predetermined terms. And an increase in the judges' retiring age is desirable for it will enable the country to benefit from their experience and expertise for longer. In principle, however, there is no need to have a fixed tenure for a chief justice. This office is distinguishable from legislative positions and other executive offices, on two counts.

One, the executive and legislative positions in a democracy are time-bound by definition, for they are elected offices and run with the electoral cycle. The judiciary, on the other hand, is the unelected branch of government and its members seek their legitimacy from the Constitution and the constitutional process, and not directly from the public. And, two, it is the executive and the legislature that is endowed with the right and responsibility to make policy, and consequently fresh ideas brought along by officials rotating in positions of authority due to fixed terms facilitate the process of change.

A judge, on the contrary, be it a chief justice or another member of the bench, has no policymaking role and has no mandate to usher in legal or social change. He or she must interpret and apply the law promulgated by the parliament in accordance with the principles enunciated by the constitution. To the extent that the chief justice in Pakistan enjoys executive authority that can influence the judicial outcome of matters before the court, the distribution and exercise of such authority must be revisited. But other than that, the principle of judicial independence simply requires that once appointed, a judge must not be amenable to any extraneous influences -- be they considerations of reward or punishment.

The policy choices being favoured by the PPP are not fundamentally flawed. But what makes them objectionable is (i) their timing and proposed outcome, and (ii) the selective enforcements of the choices being advocated. There would be no outrage over the changes proposed by the PPP if they did not result in Chief Justice Iftikhar Chaudhary retiring prematurely and Justice Dogar taking his place. If the PPP is truly interested in institutional reform as opposed to affecting the fortunes of individuals, as vociferously claimed by it, let the proposed changes apply to future members of the Supreme Court, and not the deposed and incumbent judges. After all, it does make such argument in relation to the general -- that the party is interested in fixing the system and blocking future dictators, as opposed to engaging in vendettas based on past conduct.

Selective application of ideas also casts doubts on PPP's intentions and priorities. While PPP lawyers favourably cite lifetime appointments of judges in the US and UK as examples to be emulated in enhancing the retiring age of judges, they forget to mention that the same logic also applies to the office of the chief justice in such countries. For example, Justice Stevens of the US Supreme Court is 88 years and has served on the bench for the last 33 years. But similarly John Roberts was appointed as chief justice in 2005 when William Rehnquist died after serving in that position for 17 years. Chief Justice Roberts was 50 years old when appointed and can serve in his present capacity for decades. So if we are talking of longer judicial tenures, there is no basis for creating a distinction between the office of a judge and that of a chief justice.

The PPP seems miffed at missing the opportunity to score brownie points for restoring the judges. But all is not lost. It can make restoration of judges the beginning of an all-encompassing reform process that focuses equally on the lower judiciary and truly aims at fixing our broken system of justice. For example, it is common knowledge that the conditions of service of the district judiciary are appalling. Yet, despite all the hoopla on the judiciary we haven't seen any political party take up the challenge and advocate a reform package that would (i) result in attracting the brightest legal minds to the judicial service, and (ii) make the district judiciary independent as well and lead to its integration with the superior judiciary.

A new civil judge who has jurisdiction to rule on cases worth millions gets paid a paltry sum of Rs20,000 per month (approximately three times the minimum wage). And yet we expect him to be oblivious to considerations of fear or favour and mete out justice conscientiously. True, we cannot put a price tag on honesty or cure greed, but we must pay him enough so that he need not rely on graft to make ends meet. Likewise, the colossal number of pending cases and the years lost by an average litigant in pursuit of justice are the banes of our legal system. And yet we have some 1,800 judges all over the country to service the judicial needs of a population of over 160 million. How can one expect a judge to thoughtfully decide cases on merit when he is required to hear up to 200 cases during an average workday?

There is tremendous opportunity for the PPP to initiate institutional reform, strengthen the judiciary, transform our justice system and also derive political mileage from this -- only if it has the vision and the sense to act on its professed good intentions.



The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School. Email: [email protected]

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