Judicial reforms can’t wait

At the core of the contentious debate over the much-criticized constitutional amendment bill is the necessity to preserve the sanctity and independence of the judiciary. Concerns have been raised that any alterations to the current framework could render the Supreme Court subordinate to parliament and could also benefit Chief Justice Qazi Faez Isa.

While the independence of the judiciary is crucial and a fundamental aspect of the constitution, labeling any effort to reform a deteriorating justice system without a thoughtful examination of the 43 amendments would undermine two decades of legal progress for both the bench and the bar. Much has already been lost over these 20 years, largely due to relentless yet often ineffective judicial activism.

It is a stark reality that our independent judiciary has frequently faced accusations of colluding with the establishment, politicians, media outlets, and corporate interests.

Ordinary litigants have been misled by the outcomes of the lawyers' movement. For how long will the notion of an independent judiciary be wielded to obstruct necessary judicial reforms?

According to data from the official Supreme Court website, around 25,000 cases are filed each year before a court composed of just 17 judges. Currently, the backlog exceeds 60,000 cases. Given this context, if the Supreme Court declares a jihad against case pendency or tries to build a bridge to address it, as Justice Asif Saeed Khosa famously suggested, it will take years for the court to remove the pendency.

Hypothetically, if a Supreme Court judge were to resolve ten cases a day, it would take two years to dispose of five thousand cases, assuming the judge takes no holidays and works on Saturdays and Sundays. Additionally, this scenario assumes that no new cases are filed in the Supreme Court during these two years. It's important to highlight that 90 per cent of the pending cases involve ordinary litigants, who are left to suffer while the Supreme Court prioritizes constitutional matters.

Seventy-seven countries worldwide have separate constitutional courts, while their Supreme Courts or equivalent judicial bodies primarily handle cases involving ordinary litigants. Notable democracies like France and Germany are among these countries. Furthermore, the judges of these constitutional courts are appointed by parliament. In the US, the chief justice of the Supreme Court is appointed by the president and confirmed by the Senate. How is it, then, that the involvement of parliament or the executive in judicial appointments is not seen as an infringement on judicial independence in these esteemed democracies?

The proposed amendment doesn’t grant parliament unchecked power in appointing a chief justice. Instead, it allows an eight-member committee from the National Assembly to recommend a chief justice from the three most senior Supreme Court judges.

How long will the seniority principle overshadow meritocracy, which is vital for effective governance? If elected representatives are accountable to the people and the executive branch to parliament, who holds judges accountable? Additionally, how does evaluating a high court judge's annual performance threaten judicial independence, especially when some judges haven't decided a single case in a year?

The proposal to fix the chief justice's tenure to three years is being contentious for no reason. Over the past two decades, some judges served eight years while others held the position for just 18 days. A fixed tenure would provide the stability needed for judicial reform and a clear vision.

Pakistan has experienced both exceptional and inadequate judges due to the absence of a set term. It's time to acknowledge that our judicial system needs dedicated and capable judges, not those who simply serve out their time due to earlier appointments.

Judicial reforms should not be hindered by the notion of the constitution's basic structure. The constitution's primary purpose is to benefit the people of Pakistan. With over 60,000 cases pending, the suffering of the populace cannot be prolonged for fear of undermining judicial independence. While the proposed amendments do not threaten independence, we must recognize that an incapable and inefficient judiciary is way more harmful than a dependent judiciary.

The writer is an advocate of the high court.