An anti-Chaudhry court?

Legal eye

The writer is a lawyer based in
Islamabad.

After the expansion and contraction of the Supreme Court’s moral authority under Chief Justice Iftikhar Chaudhry’s watch, there emerged a sense that judges lower down in the SC hierarchy had learnt lessons.

And as the baton is passed to subsequent CJs institutional reforms will be instituted with a sense of urgency to address critical issues such as judicial overreach, unguided exercise of the CJ’s administrative powers, lack of judicial accountability, opacity in judicial appointments and utter lack of focus on a broken justice system.

When Jean-Baptiste Carr said, “the more things change, the more they stay the same”, he might as well have been speaking about our Supreme Court. Most problematic about CJ Chaudhry’s term was the personalised manner in which he exercised administrative and judicial power to create consequences in individual cases as opposed to reforming and strengthening the judiciary as an institution. Two years hence, we appear to have a Supreme Court that wishes to do what CJ Chaudhry did, but is coy about it.

In certain ways things have worsened. Instead of fixing jurisprudence where it went haywire during CJ Chaudhry’s time by developing judicial consensus around limits of judicial authority and the manner of its exercise, we have seen the SC reverse its decisions in individual cases that are deemed products of the CJ Chaudhry train of thinking. In a succinct op-ed in Dawn, Salahuddin Ahmed analysed the recent exercise of SC’s review powers and asked if our SC was more open to admitting its mistakes or if it made more in the first place.

We have frequently discussed how the apex court (in US Justice Jackson’s words) is not final because it is infallible, but infallible only because it is final. Here we have a SC that changes its mind so frequently that it neither seems infallible nor final. The settled view regarding the SC’s review power was that it is to be exercised only in cases where the ‘error floating on the surface’ is so blatant that it must be corrected. But the SC seems to now view its power to review its own decisions just as its views its power to review executive decisions.

The consequence is that no one knows anymore what the scope of the SC’s review power is. Reviews have become akin to appeals filed in the hope of reversal of decisions with a change in SC leadership. And that has happened. The Bustard case is one example. We have had four CJs since CJ Chaudhry retired. We will have another two over the next three years and then another three in the five years after that. If exercise of judicial and administrative powers is shaped completely by personal choices of an incumbent CJ, what does it say about the judiciary as an institution?

There was a sense post-CJ Chaudhry that the SC would define the scope of its 184(3) suo motu powers to do what apex courts do: add clarity and certainty to the law. But it hasn’t. It has instead chosen to intervene and overturn decisions in individual cases. Instead of adding certainty to Article 184(3) powers it has made it harder to make sense of Article 189. This article says that SC decisions are binding on all courts.

Should judges and lawyers at the high court level pontificate over which SC decisions are really binding and which are to be overturned? With frequent changes in leadership at the apex level and criticism of decisions rendered by fellow or past judges by serving SC judges in obiter form, a baleful practice could emerge where only judgements authored by SC judges ‘in power’ are treated as reliable precedents by high courts.

Is the apex court, instead of evolving as a reformed court, degenerating into a divided anti-Chaudhry court?

It is hard to read our constitution as doing anything other than creating a federal judiciary. Is the power of judicial appointments, together with the threat of use of the Supreme Judicial Council’s powers, transforming the judiciary into a hierarchical unitary institution with an all-powerful SC usurping high courts’ autonomy? The appointment of Additional Judges under Article 197 (essentially contractual judges who can be let go anytime) wasn’t meant to be a first step to appointing permanent judges under Article 193.

An Additional Judge with no security of tenure is bereft of judicial independence. We have been unable to fill the void created in the judiciary after CJ Chaudhry’s restoration and removal of ‘PCO’ judges. In hindsight how PCO judges were dealt with turned out to be disruptive for the judiciary. What we have now are young and inexperienced high courts with a significant number of Additional Judges whose fate hangs in a balance till they are confirmed. If recent practice is anything to go by, there exist no discernable criteria for confirmations.

What is it that determines the likelihood of confirmation of an additional judge? His integrity? His competence? His efficacy and case disposal? Quality of his judgements? Affiliation with the right chamber? Or personal chemistry with members of the Judicial Commission? No one knows. Consequently additional judges keep wondering whether they’ll be around a year later, the bar continues its whispering campaign and the casualty is judicial independence and the quality of justice meted out to pitiable consumers of our justice system.

While judicial confirmation is the dangling stick-and-carrot for additional judges, the Supreme Judicial Council is the new stick for permanent judges. There has been much talk about imminent judicial self-accountability. But there has only been talk. What is probably even more damaging than no accountability is incessant talk of the SJC’s sword falling on named judges and festering gossip about them without quick action. It scandalises judges and besmirches their reputations while allowing them to continue to exercise their godlike powers.

Does the SC see no harm in using threat of SCJ powers as a leash to control subordinate judges? That there must be effective self- accountability is beyond question. But what will be the criteria? Allegations of graft and impropriety? Incompetence? Judicial overreach? Or just rubbing incumbent judicial leaders the wrong way? If the SCJ does come to life, will it function transparently and fairly making no exceptions, or will it act selectively setting a few examples with the aim of strengthening the SC’s stranglehold over high court judges further?

There were many good things that CJ Chaudhry did. But his key failing was that, bestowed with power and authority that no CJ had ever enjoyed before, he used most of it to aggrandise himself and cultivate a personality-driven patronage system as opposed to using it to fix the malfunctioning institution he headed. Is our judicial leadership doing things differently today? Over a year back parliament, pushed by khakis and public opinion, created military courts. It was a bad idea that won’t curb terror and is undermining rule of law in Pakistan.

Notwithstanding military courts’ futility, their creation was as loud a vote of no confidence against our civilian courts’ ability to dispense justice as can be. Yet over a year later and with less than one remaining in the life of military courts, our judicial leadership’s lack of interest in evolving a game plan to fix our court system, which everyone agrees needs fixing, is mindboggling.

Is it something about the nature of power or about the nature of our ruling elite that whoever stumbles upon power wishes to relish it and bask in its glory but not use it for things larger than their person?

Email: sattar@post.harvard.edu