Brinksmanship again

The writer is a lawyer based in Islamabad.

Sanity finally prevailed in Islamabad with the PPP's total capitulation over the issue of judicial appointments, facilitated by the chief justice's foray into a grey area of judicial decorum. The argument of legal purists that the chief justice should not have acceded to the prime minister's request to continue consultation over selection of superior court judges at the Prime Minister's House, at a time when the matter was pending before the Supreme Court, carries weight. The realists also have a point when they contend that ordinary folks in Pakistan might have viewed the chief justice's position as obdurate had he insisted on being the epitome of judicial propriety in this instance and shunned the prime minister's invitation to amicably resolve the deadlock over a cup of tea.

First of all, it is essential to clarify that recommendations in relation to judicial appointments fall within the administrative and not judicial functions of the chief justice. The Supreme Court bench that was to determine the legal validity of notifications issued by the president against the recommendations of the chief justice did not include the chief justice. The meeting between the prime minister and the chief justice was not in relation to the judicial outcome of a pending matter but over an administrative issue. And the Constitution envisages consultation between the heads of the executive and the judiciary on such matters.

It is an established norm, however, that such consultation takes place in writing and not through face-to-face meetings. Further, in such matters the attorney general and the law secretary function as channels of informal communication between the executive and the judicature. In this case, the formal channels of communication broke down. In rejecting the chief justice's recommendations in relation to elevation of judges to the Supreme Court, the prime minister initially acted on bad advice almost

peppered with malice. He then continued in the same vein and raised the ante by his audacious suggestion that the chief justice's continuation in office was dependent on parliament validating the notification of his restoration.

Having acted on such invalid and reckless advice, there was no option for the prime minister except to personally engage in brinksmanship. The prime minister gate-crashed a dinner at the Supreme Court, invited the chief justice back at his lodge the next day, the government surrendered before the recommendations of the chief justice in return for a photo-op and face-saver. The strategy worked and the PPP's self-engendered crisis got diffused. There is no gainsaying that the result accomplished is welcome. But notwithstanding the satisfactory end, questions about the means are not illegitimate either.

Would the government not have conceded had the chief justice politely refused to visit the prime minister to conclude the consultative process in a personal meeting? Could the chief justice's decision to meet the prime minister and the outcome of such meeting influence the judicial outcome of the judicial appointment case had the apex court been required to decide it on legal merits? Did the chief justice and the prime minister decide any other legal issues pending adjudication before the Supreme Court, especially that of out-of-turn promotion of senior bureaucrats? Was there any conversation on the timing and mode of implementation of the NRO case, as well as the government's foot-dragging over the Supreme Court's instructions in relation to the Swiss cases?

We will never know the answers to these questions definitively. But the fact the meeting between the chief justice and the prime minister has given birth to such questions and concerns is what pains proponents of rule of law who believe they have a stake in upholding the Constitution and protecting the credibility of the institution primarily responsible for interpreting and implementing it.

The detractors of the ruling regime argue that U-turns on sensitive policy issues is a part of the PPP's preferred governance strategy. Given its murky record over the restoration issue, the PPP has no credibility when it comes to its commitment to the rule of law and an independent judiciary.

That, combined with the marked absence of any sense of disgrace over its repeated flip-flops, places the ruling regime in a unique position where it has nothing to lose in such crises and climb-downs. The position of the chief justice and the Supreme Court is, however, different. The restored judiciary has garnered tremendous credibility and respect over the last couple of years. Even the suggestion that any considerations extraneous to the law and established judicial norms (such as expediency, public approval or even opprobrium) influence the conduct of the apex court and its chief justice, threaten to take away some of the shine and glory that the judicature presently basks in.

One takes comfort from the fact that the issue of judicial appointments was resolved in accordance with principle and the position that the chief justice had previously taken. Further, the decisions and tone of the Supreme Court in matters presently pending before it and in getting implemented the decisions already rendered will hopefully allay fears that social niceties have the propensity to affect judicial functions of the apex court.

But now that the impending crisis has dissipated, the Supreme Judicial Council should probably consider the events of the last few days and lay down within the judicial code of conduct the permissible means of consultation between the executive and the judiciary in relation to administrative issues.

While the meeting between the chief justice and the prime minister can be condoned as an extraordinary singular incident, there is need to ensure that consultation between the heads of the executive and the judiciary does not acquire the form of negotiation going forward. The other lesson from the last few weeks is that our system for appointment of judges to the superior courts is broken and needs to be fixed. Over the years, by virtue of creative judicial interpretation of relevant provisions of the Constitution together with the definition of consultation written into Article 260 of the Constitution by Gen Musharraf, consultation between the chief justice and the president has come to mean binding advice by the former to the latter.

The monopolisation of such broad discretionary authority in the office of the chief justice is neither healthy nor in the interest of an independent judiciary. For an independent judiciary partially depends on judges being appointed through a rigorous open and transparent process that elects the best legal minds to serve on the bench. The chief justice having the final say in who gets to wear judicial robes thus hinges the composition of superior judiciary ultimately on the prudence of one mortal. This system might work for now due to the credibility of Iftikhar Mohammad Chaudhry as a person and the reverence accorded to him by the Bar and his peers alike. But such temporary comfort doesn't change the essentially whimsical nature of the current mechanism of judicial appointments that is driven by individuals, and not institutions.

Parliament needs to get its act together and implement, at the earliest, a streamlined version of the more consultative and institutionalised judicial appointment mechanism proposed in the Charter of Democracy. However, till such time as our mainstream political parties continue to wrangle over constitutional amendments, the chief justice can voluntarily take the initiative of proposing administrative committees – comprising the senior-most judges of the Supreme Court and the High Courts – responsible for consensually discharging administrative functions such as recommendations for judicial appointments and composition of benches.

Both judicial appointments and composition of benches are intricately linked to judicial independence and impartial dispensation of justice. Vesting such discretionary power in an individual makes it amenable to abuse and retards institutional development. The honourable chief justice could show many others the light by voluntarily relinquishing personal discretion to strengthen the institution he heads with such distinction.



Email: sattar@post.harvard.edu