The News on Sunday: What should be the role of a chief justice and how important is that role in shaping the conduct of the institution of judiciary under his guard?

Salahuddin Ahmed: The Chief Justice of Pakistan (CJP) is described in judgments both as ‘primus inter pares’ and as ‘pater familias’.

The first term acknowledges that -- in law -- the chief justice enjoys no greater judicial power than any other judge. He is only ‘first among equals’. His extra powers only relate to administrative matters. The second term admits that -- in fact -- the CJP acts as ‘father’ to the judicial family. Both judges and outsiders look to him to set the tone for the whole judiciary.

In many modern families fathers, at best, only guide decisions that are ultimately made by consensus. In Roman day, however, the "pater familias" legally enjoyed the power of life and death over other family members.

Pakistani culture of deference to seniors (even among those legally obliged to maintain independence) allows even the most Roman of fathers to thrive. Lasting legacies, however, are left by CJPs who inspire a consensus within their family -- so their work continues after their departure.

TNS: Can a chief justice alone mend the broken judicial system. What is judicial reform anyway and is it a judicial or executive function? What about the transgression of the chief justice of Pakistan into the domain of high court chief justices?

SA: To effect meaningful judicial reform, the institutional culture must change. Such change cannot be driven top-down by an individual (especially one with limited tenure). All participants in the judicial system -- judges (of all levels), lawyers, litigants, police, governments etcetera -- must be co-opted in the process.

The lead, however, must be taken by the judiciary itself.

In our constitutional history, there is so much negative baggage involved vis a vis executive interference in judicial functions that any attempt by the executive to take the lead would inevitably be seen as encroachment on judicial independence and run into obstruction.

TNS: How do you look at the powers enjoyed by the chief justices today and is there a need to dilute their powers. If yes how?

SA: In simpler days, formation of benches and distribution of cases was seen as a routine, albeit tedious, administrative function of the CJP’s office. Over time, it has become a nuclear weapon and far too dangerous to be wielded by one man.

The CJP knows the views and attitudes of fellow judges on important issues. By choosing who hears what, he effectively controls the outcome of cases.We have even seen cases where the CJP has -- when dissatisfied with the course being taken -- reconstituted the bench mid-hearing! On the other hand, some cases are never fixed at all.

The enunciation of law and decisions of cases must not be led by the inclinations of one person. Benches should be formed by a committee of senior Supreme Court (SC) judges and in accordance with fixed criteria catering to the specific expertise of judges, their seniority and geographic convenience. Once a bench is formed, it must continue for a fixed term. Likewise, cases should be automatically assigned to different benches as per fixed criteria regarding case-loads, subject-matter et cetera.

Secondly, the suo motu must be regulated. The English jurist, John Selden, said that equity (unlike law) was a roguish thing because it varied with the conscience of each Lord Chancellor. It was just as arbitrary a measure as the size of the Chancellor’s foot! Suo motu, on the other hand, might be said to vary with the size of the CJP’s cranium.

The Constitution confers suo motu power on the Supreme Court. In practice, however, it is usually invoked by the CJP. The present SC Rules provide no guidance because they were framed in 1980 when suo motu was unheard of.

Suo motu proceedings should not arise from the passing whimsy of individuals. To justify a departure from the ordinary judicial process, at least a committee of five SC judges should vote on its necessity. Also, the judge who initially proposes taking suo motu notice of a matter should be barred from its hearing. If he feels so passionately about a cause, he cannot decide it impartially.

TNS: Where does populism fit in, especially in the debate between judicial activism and restraint? If there are no curbs on media’s coverage of Court Room 1 or wherever the chief justice goes, which there aren’t, where will the restraint come from?

SA: At its best, an unelected judiciary is a bulwark against unbridled populism. When politicians rush to appease baying crowds, judges stand fast for the constitutional rights of the weak, the hated and the unpopular. Think of the Aasia Bibi case. The problem is that when judges start doing the work of, and competing with, politicians; they start thinking like them too. They obsess over headlines.

That said, I see no harm in media coverage of judicial proceedings. If anything, it acts as a curb on excesses. Restraint comes from within; if a judge seeks fame and popularity, the flaw is in him, not the coverage.

TNS: In the absence of a well-functioning executive and even legislature, the populism of chief justices has many takers in the society, including from within the legal fraternity. What do we collectively lose, or gain, in the process?

SA: You are describing the vacuum theory of governance. I think it is a farce. If politicians don’t do their job, let judges do it instead. But if judges don’t do their job, should soldiers do it instead? And if soldiers are too distracted to do their job, who replaces them?

Quick fixes don’t work long term. You must improve institutions, not substitute them. And our people must learn to take responsibility for their foolish choices. Three years ago, Justice Saqib Nisar said it best - ‘And what if [politicians] betray the trust the people of Pakistan have reposed in them? Should they not be removed or reviled? Yes, indeed, but by the people of Pakistan through a democratic process.’

TNS: Judiciary is becoming more and more insular, with appointments and removal being in their own hands. In recent times, it seems it is impossible to hold the chief justice of a country to account, even when he violates the code of conduct. What’s the solution?

SA: Children that grow up in overly protective germ-free environments have more allergies, less effective immune systems and are generally less healthy. Similarly, institutions that insulate and seal themselves off develop distortions and become weaker. Problems that could have been easily identified and rectified (given regular external exposure and accountability) grow and fester until radical intervention becomes necessary.

Also read: First among equals

Introducing some level of parliamentary scrutiny in the appointment of judges wasa positive measure. Unfortunately, the Parliamentary Committee was largely marginalised (and even worse, completely demoralised) after the SC’s judgment interpreting the 19^th Constitutional Amendment. Still, the Parliamentary Committee should try and effectively utilise the little space it still retains. If they continue to do so, then in an appropriate case, the SC may be compelled to modify its earlier view. The alternative, of course, is another constitutional amendment.

As far as removal of judges is concerned, the Supreme Judicial Council (SJC) should include some non-judges. Effective self-accountability is a disproven myth. It is widely believed that judges protect their own and are only removed when they refuse to tow the line of their seniors. Appointing outsiders to the SJC will improve public confidence in the judiciary. So will greater transparency in its working. The latter only requires an amendment to the SJC Rules -- albeit in a manner that balances the competing need to ensure judges (and public confidence in them) is not needlessly undermined. The former, of course, requires a constitutional amendment.

The season for constitutional amendments is coming soon. Can we hope for amendments that improve the judiciary instead of just handing over judicial functions to someone else?

(The interview was conducted via email)