The Senate speaks

The committee report that emerged from the Senate on December 30, 2015 was meant to be a plan for revamping our ailing justice system. But the 80-page-long report, which has the approval all 104 members of the Upper House, has gone much further – taking shots at two of most powerful institution of the Islamic Republic: the ISI and the Supreme Court.

First, a bit of a backgrounder.

Everyone knows that in 2015, our entire parliament and a 12-member Supreme Court majority capitulated before the khakis, obediently rubber-stamped the 21st Constitutional Amendment and set up despotic military courts. There were some people at least who swallowed this bitter pill with a heavy heart.

One such person who signed the 21st Amendment Bill with tears in his eyes has since become the chairman of the Senate. As if to atone for his sin, Chairman Senate Mian Raza Rabbani has since been leading a Senate initiative to fix our flawed justice system, the raison d’être of the military court. Working quite independently of our sluggish government and our increasingly insular judiciary, the Senate Committee-in-Whole has completed its work. Its report is now in the public domain.

One can disagree with some of the proposals contained in the report. But, in general, the Senate’s law reform initiative deserves to be applauded supported for at least two reasons.

First, it represents a rejuvenation of our legislature, the bulwark of democracy in any country, which has unfortunately remained the weakest organ of our state, ever since the dissolution of the Constituent Assembly in 1954.

Second, while everyone – including countless committees, commissions and courts – has long spewed forth on the issue of law reform, little has been done to address it. The legislators are the ones vested with the power to undo dysfunctional laws. Finally, they seem to be heading in that direction.

Put briefly, the report spans five key areas: reforming the law on civil procedure and on arbitration in order to make dispute resolution speedy and cheaper; going tough on crime and terrorism through reform of criminal procedure; providing legal aid to the needy; expanding the size of the Supreme Court; and taming the intelligence agencies.

The proposals in the first three areas leave much to be desired, since they are neither evidence-based nor sufficiently imaginative. More on these topics will follow in a subsequent op-ed. Here, let me address the ambitious proposals regarding the ISI and the SC.

First, the happy bit.

Just when everyone had forgotten all about it, the Senate report reminds us and the government of a certain Inter Services Intelligence Agency (Functions, Powers and Regulation) Bill. Back in 2013, the Senate Committee on Human Rights had annexed a draft legislation called the ISI Bill to a report it submitted to the government. The government, obviously under pressure from you know who, completely ignored the Senate’s naughty gesture.

But the wily Senators tell us that the government’s lying-low strategy has backfired. Somewhere in the Senate’s rulebook it says that if a government department simply sits mum over a committee report, then it eventually loses the right to modify the report’s conclusions. So, according to the rulebook, the ISI Bill must now be tabled on the floor the House, willy-nilly. The powers-that-be will probably have the Bill significantly defanged; but they can’t kill it now.

The ugly side of the report is its court-packing plan.

At present, the Supreme Court of Pakistan has a maximum strength of 17 judges, the chief justice of Pakistan included. The Senate wants to increase that number to 27. The purported justification: “[T]he number of judges in the Supreme Court of Pakistan is stagnant since 1997. This is one of the major causes which hinder the dispensation of speedy justice.” In other words, the Senate would have us believe that dispensation of justice in this country can be sped up by increasing the number of judges in the Supreme Court. This is downright silly.

First, there is simply no evidence to show that the greatest bottleneck in our legal system is at the level of the Supreme Court. It might well be the fastest tier of our legal system. It’s the courts below which cause the most delay.

Second, the proposal shows a sheer lack of appreciation for the pyramidal structure of our legal system. The top of the pyramid, where the SC sits, is narrow by design, not by coincidence.

Third, the proposal shows a lack of conceptual clarity about the unique role of an apex court in a common law system. SC judges are not your regular appellate court judges who are supposed to pick on errors made by those below. They are supposed to be policymakers who clarify the law where it is ambiguous and change it where necessary. You don’t need more 17 judges for this policymaking role.

Our Supreme Court is, in fact, already quite large by international standards. Take a look at the number of apex court judges in comparable jurisdictions: US: 9, Canada: 9; UK: 12; Bangladesh: 10; Sri Lanka: 11 and Malaysia: 11. Constitutional courts, usually found in countries with a civil law heritage, are generally larger: South Africa: 11; Brazil: 11; Germany: 16 and Egypt: 21.

The only respected apex court much larger than ours is the Supreme Court of India which has a maximum strength of 31. But many in the legal community would argue that the practice of sitting in very small benches, usually of two judges only, adopted by our Supreme Court and its Indian counterpart, actually encourages the creation of conflicting precedents. If the Supreme Court had half as many judges and they all sat together, it might actually be better at its law-laying and policymaking functions.

It is quite likely that the Senators’ real object behind this proposal has nothing to do with speedy justice. It could be part of a large game plan. On page 40, the report recommends recourse to Article 177 (2) (b) of the constitution, which allows senior lawyers to be appointed directly to the SC, if necessary. Since at present, few, if any, high court judges are senior enough to be eligible for elevation to the SC, the newly created seats on the SC bench would have to be filled with lawyers. In effect, then, it is possible that the Senators would like to see 12 senior lawyers directly appointed as SC judges – something of a coup in the judiciary.

Such a drastic reshaping of the SC would be detrimental to the intra-institutional solidarity forged amongst members of our superior judiciary in the wake of the Lawyers’ Movement. The Senators seem to be forgetting that in our precarious civil-military balance, a strong and activist Supreme Court is actually good for democracy.

In short, while the Senate’s initiative on law reform is a welcome step, the proposal about increasing the number of SC judges is either silly or sinister; I would oppose it.

The writer is a lawyer associated with Foundation for Fundamental Rights.

Email: umer.gilani@gmail.com