If Iftikhar’s Court was too aggressive, the present court is too passive
Much, if not all, of the momentum generated after the Peshawar tragedy has been clearly lost. Not only did the National Action Plan (NAP) never take off, but now the Supreme Court is allegedly busy undoing the 21st amendment as well. It may have been a parliamentary rarity – all lawmakers on the same page one a matter of pressing national emergency — but the Court is apparently not impressed by what they think is important, especially military courts.
This friction plays out in the backdrop of the judiciary becoming increasingly controversial. Civil society, and of course working lawyers, raised it to new heights during the lawyers’ movement. But since then a lot has changed. The institution has become political, and, some say irrational, in some matters. And however one judges the course of the judiciary since the Ch Iftikhar episode, it cannot be disputed that the lot of the common man did not improve. Neither suo motu cases nor the politicisation of the judiciary helped people have their cases decided sooner, and in a more transparent way.
To understand the present and future of the judiciary, DNA talked exclusively to Justice (r) Wajihuddin Ahmed.
Question: What are your views about the Supreme Court’s reservations regarding the 21st amendment and military courts? Does the Court have the power to reverse parliamentary amendments in all other democratic countries?
Wajihuddin Ahmed: Yes I think the courts have the power to examine the constitutional amendments passed by parliament. The court also has the power to strike down any amendment which is in violation of the fundamental structure or framework of the constitution.
Remember this is not a constituent assembly which can pass any kind of amendment. This parliament does not have the power to unmake the constitution. The constitution has been made by the founding fathers in 1973 and there was a national consensus for making the constitution. There was a compact between the federating units and once it was achieved, the constitution was made.
Now every other parliament has the power to amend the constitution for day-to-day purposes, arising from time to time, but parliament cannot unmake the constitution.
There are dos and don’ts of amending the constitution. You can amend it under doable clauses but you can’t make amendments in the constitutional limits which fall under don’ts.
For instance, if parliament wants to amend the constitution to turn the parliamentary form of democratic system into a monarchy, it can’t do it.
If the majority of the feudal class in a routine parliament desires to take away all the fundamental rights of the people at large which are enshrined in the constitution, they can’t do it.
If the if feudals in the parliament want to do away with the judicial organ of the state, they can’t do it. It is in the parameters of the don’ts. Changes in basic structure of the constitution can’t be made.
I say so because a particular national assembly is elected on the basis of the manifesto they presented to the masses. If they sought the public mandate on the premise that they wanted to amend the basic structure of the constitution, and they win majority, then they could do it. The 18th and 21st amendments have to be vetted on this touchstone.
The Supreme Court has also intervened in the past whenever dictators and autocratic rulers wanted to amend the constitution according to their whims. It happened even though the constitution provides a procedure to bring in amendments.
In the context of the 18th constitution amendment, when it was passed by the parliament, there were some specific amendments about the process of appointment of judges. However, the Supreme Court convened an emergency session and the amendments were examined and referred back to parliament for a review as the amendments were made to change the basic structure of the constitution. So, finally, parliament referred to the reservations of the court and corrected the amendment process.
Now in a country like Pakistan such situations arise often. If any military dictator wants to amend the constitution as per his own whims, the courts intervene. But in India, there was one such intervention when an emergency was imposed by the then Prime Minister Indira Gandhi, when a question was raised whether the Indian Supreme Court could reverse the constitutional amendment? The Indian Supreme Court said it would do it if the basic structure of the constitution was amended.
Under Nawaz Sharif, the Supreme Court had also issued a stay order against parliament not to make amendments which are against the basic structure of the constitution.
Q: Did the lawyers’ movement of 2007-08 bring about positive changes in the legal institution? Critics say instead of improving speed and quality of justice delivery, it just left lawyers more belligerent.
WA: Well there was actually some improvement. There was a kind of perception that laws would not be taken fore-granted and they can’t be interfered with if passed on the whims of a military dictator. But unfortunately, the freedom that came our way was mishandled and due to too much judicial activism the very freedom was allowed to creep in slowly and ultimately it proved detrimental.
Another problem that appeared after the retirement of Justice Iftikhar Chaudhry was that the Court was headed by Chief Justices shallow in nature and they tried to curtail their spread. That too did not help. I think a little more of a middle course perhaps would have done the trick. If Iftikhar’s Court was too aggressive, the present court is too passive. Something of a centrist approach would have been better.
The lawyers’ movement has also depicted a story of triumph and victory. Who could have imagined that 60 or more judges fired by General Musharraf would be reinstated? Their reinstatement was a result of the relentless lawyers’ movement supported by civil society.
But the movement also failed to acquire a balance between success and duties? There is duty to be performed other than demanding rights. The lawyers’ community has to re-examine their conduct and they have the potential. They need to ponder upon the fact that whatever the privileges and rights they enjoy today also demands some duties to be performed. Hopefully the lawyers’ community would come through after a thorough analysis of the situation and sanity would prevail.
Q: What measures should be taken to make the legal institution more serious with regard to the common man? As of now, few people have any faith left in it. How can the courts remove the backlog and ensure speedy justice, like the Turkish transition under Erdoğan?
WA: Actually this is something which the judiciary has to do in collaboration with the executive and the legislature. This involves some structural changes, and a total modification of the system. Now, every institution of the state is overstaffed but the judiciary.
You see no government office opens or closes according to the officially announced timings. Normally people appear in their offices by 11 o clock rather than the official timing of eight. But judges arrive before time and they keep their presence in their offices till late after work hours. But it doesn’t help lessen the backlog.
If every judge at district or subdivision has approximately 200 cases a day, how can you proceed with those cases? There are too few judges who have too much work but no one bothers. The way out is a kind of understanding between the judiciary, the legislature and the executive.
In Britain, when the lower courts faced the mess of backlog, they started a second shift of judges. What we need to do today is start recruiting the same number of new judges at district level and below.
If we have 10,000 judges, employ another 10,000 together with the para-judicial staff and have two shifts. You would require monitoring teams comprising fellow judges who would identify old cases to help put them on the fast-track.
Moreover, we need to separate cases of compoundable offense from non-compoundable offenses. You have to make more cases compoundable so that more cases might be disposed off on compromise basis.
In order to clear the backlog, the US government employed the plea bargain system. We need to review it and make it compatible with our environment.
Moreover, a panchayat system was introduced by the Khyber Pakhtunkhwa government at the police station level, which was suspended by the Peshawar High Court. In my view, the jirga or a panchayat at the level of police station might be questionable. However, this could greatly help if it is formed at magisterial level so community elders can resolve cases while engaging with the elders and the magistrate in a transparent manner.
Q: How should intelligence agencies operate when courts keep letting proclaimed offenders walk? Some have openly threatened sitting judges which led to quick freedom for them. These were not matters of evidence, rather of threats to judges that influenced eventual decisions.
WA: Well undoubtedly this is a problem. But these issues can also be addressed. We need to frame laws and procedures to introduce faceless judges, faceless investigators, faceless prosecutors and faceless witnesses. In today’s modern age, this is doable and this system can be introduced before more damage is done.
Q: Most people close to former CJ Ch Iftikhar distanced themselves from him soon after his reinstatement. Did you agree with his suo motu style? Could he have improved the institution as a whole instead of assuming a markedly political outlook?
WA: I think Justice Iftikhar Chaudhry really wanted to do something good for the country and he took steps in the right direction. But then there were some lacunae also. There were chinks in his armour, particularly relating to his son, Arsalan Iftikhar. The case related to Arsalan and Malik Riaz was a grey area and I think that this case had a negative impact and very largely erased other good jobs Iftikhar Chaudhry tried to do.
Another factor was that suo motu powers were used unnecessarily. In the ultimate analysis, Iftikhar Chaudhry had too many balls in the air and was unable to catch all of them when they came down.
Q: In hindsight, did the lawyers’ movement do more good or harm for the legal fraternity?
WA: I think they did more good. It can still do better. As I already said the lawyers should realise how they have done great things and the high level of responsibility they have come to acquire. All in all, the positive aspects of the lawyers’ movement overweigh the negative ones.
