Must be careful about judicial overreach
Pakistan’s most charismatic and controversial Chief Justice Iftikhar Chaudhry retires on Dec 12. It is an irony that the social forces that were in the forefront of the struggle for the restoration of independent judiciary were soon disillusioned with him.
The foremost in the list were the lawyers who were enthused by the first ever defiance of a military ruler by a chief justice. They came out in support of the deposed judges in droves not only in big cities but also in the remotest towns of the country. There was no bar room in Pakistan which did not ring with the once familiar chant “Chief Teray Jan Nisar, Be Shumaar Be Shumaar.”
As CJ Chaudhry prepares to leave, no bar association is willing to throw a farewell dinner in his honour.
The Sindh High Court Bar cancelled its Nov 28 farewell event in his honour because of an incident in which Islamabad police thrashed lawyers to quell their protest outside the Supreme Court. The Multan High Court Bar followed suit. The Supreme Court Bar Association and Pakistan Bar Council did not even consider the formal gesture.
Within a year of Justice Chaudhry’s restoration, prominent lawyers who were in the forefront of the struggle began to criticise the way decisions were being taken by the apex court under the CJ’s influence. The rare unanimity of views found in the verdicts led one to question whether it was an apex court or a tribal jirga. Gradually the major organizations of the legal community began to criticize the trends which had become the hallmarks of the court under Justice Chaudhry.
Four issues became the focus of the lawyers’ criticism: the excessive use of Public Interest Litigation (PIL), especially the too frequent resort to suo moto jurisdiction, picking and choosing of cases for hearing on the basis of discretion rather than any set rule, overuse of contempt powers and the new method to appoint the judges.
“The excessive use of PIL, especially by invoking the suo moto jurisdiction, overshadows the normal litigation,” complained former Justice Tariq Mehmood, reminding that although PIL was meant to benefit ordinary citizens, early resolution of normal cases would also serve the same cause.
It was maintained that suo moto jurisdiction proved disadvantageous to the parties involved because they could not resort to any remedy otherwise available to them in the normal course. The Pakistan Bar Council and the Supreme Court Bar Association therefore adopted resolutions stressing the need for a law that provided a provision to challenge verdicts delivered by the superior courts in suo moto cases.
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“The tendency to treat judiciary as a sacred cow is not in line with the spirit of the times. Why can’t the balance sheet of the SC be presented before the Auditor General of Pakistan? Why shouldn’t the court reveal if there are judges with dual nationality?”
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Not that the legal community rejected the recourse to such actions. What they demanded was that suo moto jurisdiction be exercised within the constraints of rules and limitations that should be made public for the knowledge of all the stakeholders, including judges, lawyers and petitioners.
The recourse to contempt cases was opposed because once a verdict was delivered by the SC, there was no higher forum available to provide remedy.
Under the 18th Amendment, judges are appointed through a bipartisan Parliamentary Committee with equal representation of the government and opposition from both the National Assembly and Senate. However, the committee has been rendered ineffective by the Judicial Commission which often overturns its decisions. The complaint is shared by the parliamentarians and the legal community. The policy of judges appointing judges can be as harmful as the policy of politicians appointing judges. A meaningful balance needs to be maintained.
The judiciary under Justice Chaudhry demonstrated the independence to hold the PPP government accountable. It sent two prime ministers home. The judiciary, however, was restrained when it came to dealing with the army. There were obviously well defined redlines which were not to be crossed in dealing with one side and none in the case of the other.
The Army officers called to appear often disregarded the directive. Orders were passed to produce others but not carried out. The court shrank back from action.
The CJ leaves behind a backlog of millions of cases which is very frustrating for the common man. As the apex court under him became increasingly engaged in high profile cases involving politicians and those involved in mega scams, it had little time to undertake the much needed reforms. Corruption therefore remains rampant at the lower rung of judiciary. It is here that the bulk of the population interfaces with the judicial system.
Seeking justice remains both costly and a time consuming process. Many had hoped that with the restoration of the independent judiciary, justice would become cheaper and speedier. It turned out to be neither. Justice continued to be both delayed and therefore denied as before.
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Many had hoped that with the restoration of the independent judiciary, justice would become cheaper and speedier. It turned out to be neither. Justice continued to be both delayed and therefore denied as before.
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Many who supported the restoration of independent judiciary later differed with the CJ’s determination of priorities. Which cases are to be taken up first and which ones to be put on the back burner was determined through subjective evaluation rather than clearly laid-down procedures. Asghar Khan’s human rights petition filed in June 1996 in the Supreme Court continued to gather dust till February 2012. For nearly three years the apex court gave priority to other cases.
The SC under CJ Chaudhry was nevertheless head and shoulders above the Supreme Court that existed prior to March 2010.
It displayed unique independence. What is more, it had concern for the downtrodden and a number of suo moto actions it undertook were aimed at protecting the social, economic and religious rights of the people. It tried hard to recover the missing persons and stop extrajudicial killings in Balochistan. The court held lengthy sittings in Karachi to bring peace to the industrial hub of the country.
The SC still needs to come to the rescue of the common man wherever administration shows negligence or connives with the powerful. It has also to help him against excesses committed by the government.
However suo moto actions have to be less frequent and more judicious than in the past. The court has to realise that there are numerous complicated issues the solution of which requires an expertise the courts do not possess. To maintain that the remedy for every problem lies in the Basic Law is simplistic and tantamount to constitutional fundamentalism. The SC should therefore devise the scope and limitations of Public Interest Litigation.
The SC has to be particularly careful about judicial overreach into the constitutional domain of the legislature and the executive.
The tendency to treat judiciary as a sacred cow is not in line with the spirit of the times. Why can’t the balance sheet of the SC be presented before the Auditor General of Pakistan? Why shouldn’t the court reveal if there are judges with dual nationality?
Many believe the judiciary needs to give lesser time to high profile cases and more to cleansing up and making more efficient the entire judicial system.
Bureaucracy needs to be pulled up for bending laws to accommodate those in power. Even more important is to devise ways and means to efficiently clearing the huge backlog of the cases which is a continuous source of frustration for the people.
Aziz-ud-Din Ahmad is a political analyst and a former academic.