Seniority sidelined

The political history of Pakistan may well be written in terms of a tug-of-war between the judiciary and the executive, with each accusing the other of interference in its domain. The recently enacted 26th Amendment to the constitution is the latest episode in this national drama.

In a parliamentary system, which is in vogue in Pakistan, in theory the executive is the creation of the legislature. However, in practice, majoritarianism ensures that the creature controls the creator. Hence, as a rule underneath the claims of parliamentary sovereignty lurks the penchant of the executive to break loose. The only constitutional obstacle in its way is the judiciary. Herein lies the casus belli of the parliament-judiciary showdown in Pakistan.

One of the defining marks of an immature democracy is the importance of the person over the institution, of the ego over the principle. Not surprisingly, in Pakistan, the appointment of the heads of two vital institutions, namely, the judiciary and the army, has remained a matter of intense speculation, behind-the scene activities, and controversy. The fate of the government is perceived to depend largely not on parliament, to which it’s responsible, or the people, who elected it, but on these two institutions. Such perceptions aren’t baseless.

Until the passage of the 18th Amendment in 2010, piloted by the same political parties which are calling the shots now, the constitution didn’t stipulate seniority as mandatory for the appointment of the chief justice of Pakistan (CJP). But, generally, the most senior Supreme Court judge was appointed to that high office.

Curiously, the only exception to the seniority principle in recent history was the appointment of Justice Sajjad Ali Shah as CJP in 1994 by the then PPP government (1993-96) headed by Benazir Bhutto, who is widely seen as an icon of democracy in the country. It’s said that the late prime minister was so enamoured of Justice Shah’s dissenting note in the apex court’s verdict, which had validated the dismissal of her government in 1990, that she promoted him to the highest judicial office of the land by superseding at least three of his brother judges.

In a remarkable twist to the plot, it wasn’t long before serious differences crept up between the PM and the CJP. In the end, CJP Shah was the head of the bench that put its seal on Bhutto’s second dismissal in 1996 by another of her erstwhile ‘loyalist’ president Farooq Leghari. That episode, and quite a few similar others with regard to the appointment of the top brass of another key institution, unmistakably show that no matter why he/she is picked up, once a person comes to hold a powerful office, the interests thereof take precedence over all other considerations, as no one, least of all someone mighty, wants to be known as a pushover.

It seems history is a discipline of which our movers and shakers are not particularly fond of. That’s the reason from time to time the political parties in power set aside the seniority principle and then play the victim when the sun no longer shines on them.

The 18th Amendment introduced the mandatory seniority provision for the appointment of CJP, thus finally putting to an end all discretion and thus speculations and politicking with regard to that prestigious office. It also conveyed the message that the politicians had finally come of age, at least in one vital respect, and that they would no longer let their personal likes or dislikes bear upon their crucial decisions.

In retrospect, however, such optimism was grossly misplaced, much like the trust the nation has placed in political leaders one after another. Through the 26th Amendment, the executive has thrown the seniority principle on the scrapheap and arrogated to itself the role of the final arbiter in the choice of the CJP. Yes, the CJP shall be picked by a 12-member Special Parliamentary Committee (comprising eight members of the National Assembly and four Senators) representing different political parties from amongst the three top judges in order of seniority. Yet, by virtue of the ruling party’s (plus its allies and supporters) majority in the National Assembly – otherwise it will not be in the saddle – the appointment has become practically an executive function.

The creation of constitutional benches in the Supreme Court, as well as in high courts subject to a resolution of the legislature concerned, is ostensibly a welcome move. Because of the irrepressible tendency of some political parties to take matters to the courts at the drop of a heart, the judicial backlog keeps piling up to the detriment of the ordinary litigant. The constitutional benches, in part, represent an attempt, to free up some judicial resources for the public.

Be that as it may, the same purpose could have been better served by increasing the number of judges. The constitutional benches are not likely to discourage political parties from invoking the superior courts’ jurisdiction. On account of their very nature, political matters are difficult to be put on the backburner. Thus we’re likely to see an increasing demand for constitutional benches within the existing judicial resources.

As the number of constitutional benches will be decided by the Judicial Commission of Pakistan (JCP) from time to time and a bench will comprise at least five members, we may see an increasing number of judges hearing ‘constitutional’ cases at the expense of ‘ordinary’ ones.

The provisions relating to performance evaluation of high court judges is another controversial part of the 26th Amendment. In high courts, judges are generally appointed as additional judges and are subsequently confirmed. This is for the reason that the members of the upper judiciary can only be removed following recommendation of the Supreme Judicial Council (SJC) comprising senior judges for gross misconduct. Therefore, a judge once confirmed is difficult to send home. This special procedure was incorporated into the constitution to ensure that the judges can dispense justice without fear of losing their job.

Th 26th Amendment provides that the JCP, which also includes four parliamentarians, will monitor the performance of high court judges. In case, a judge’s performance is found to be ‘inefficient’, they will be asked to ‘improve’ within a certain period to be decided by the JCP. If within the stipulated period the performance remains unsatisfactory, a report about that judge will be sent to the SJC.

Such provisions are like a double-edges sword that can cut either way. It may keep the judges on their toes and thus augur well for the judiciary; alternatively, it may keep them under undue pressure and thus undercut their independence.

The amendment has also scrapped the suo-motu power of the upper judiciary. Clause (3) of Article 184, which defines the original jurisdiction of the Supreme Court, empowered the court to make an order on its own if the matter involved a question of public importance with regard to the enforcement of a fundamental right.

That power thus formed the basis of judicial activism. The actual exercise of that power depended largely on the personality of the CJP. The tenure of some chief justices is particularly known for their inordinate judicial activism, generating a lot of resentment among high government functionaries for valid reasons.

Judicial activism can be seen in different ways: as an encroachment on the powers of the executive; and as the only way to enforce fundamental rights in certain situations. Therefore, instead of abolishing that power lock, stock, and barrel, it had better be circumscribed. But it seems the ruling alliance, whose key constituents have a plethora of grievances against the judiciary, was obsessed with reining it in. Hence, it came up with the root and branch remedy.

The writer is an Islamabad-based columnist. He tweets/posts @hussainhzaidi and can be reached at: hussainhzaidi@gmail.com