Political activism of chief justice

• Reasons and remedies

There are two unelected offices that command high respect and political influence. These are Chief Justice of the Supreme Court of Pakistan (CJP) and Chief of Army Staff (COAS). Historically these two high offices collaborated to intervene in politics and channel it in a direction that they deemed appropriate. But both these high officials avoided media exposure and kept the nation guessing about their thinking during times of political crisis. COAS speaks to the nation as head of an institution through the office of DG Inter Services Public Relations (DG ISPR) but CJP had no such facility available. This has changed recently after the July 28th Iqama verdict that was widely criticised by many prominent lawyers as well as became the focal point of the political campaign of ousted Prime Minister Nawaz Sharif.

To counter it and present their narrative CJP has decided to speak up and explain their thinking. These talks are not just about the delivery of justice as well as to justify their activism to pressure the executive to deliver to the people. This has raised eyebrows as well as contributed to the ongoing debate in the country about the constitutional balance between various institutions. Bilawal Zardari cautioned CJP not to become a politician. But both him and his father Mr Zardari remained quiet when the Iqama verdict was issued. They were rather happy that one of their key political opponents was taken out of the contest while many of us objected to changing the fundamental constitutional structure of the judiciary in dealing with politically inspired petitions.

I believe that the CJP should speak more often about his views on judicial reforms and improvement in performance of the executive. For a long time, we have wrongly held the perception that judges speak through their judgments. Judges do not speak in judgments but rather uphold the law in a case based on the evidence presented to them. They have to try their best to be objective and remain unbiased in a case so their personal opinions have no place in judgments. This means that outside the courtroom they should speak about their views on how the society of which they are part can be improved. They should specifically talk about improving the constitution and helping the community respect rule of law. In almost all developed countries judges frequently share their views on reforms. I do hope that our CJP will continue educating the nation.

Bar members can become judges up to district and sessions judges and after that all appointments should be made from among these judges for career progression at higher courts

The CJP in many of these speeches has highlighted what is needed to reform the judicial system. He highlighted three areas that need attention. First, that the penal code that was introduced in 1890 is outdated and cannot sustain the needs of justice of 21st century. This can only be changed by a legislature that has not shown a keen interest in doing it. The main reason for this lack of interest is that the ruling elite that we call Brown Sahib took over the country when British Raj that we call Gora Sahib left. It is in their interest to keep the nation subjugated to themselves. This outdated penal code has also helped lawyers earn retainers for a long time in cases that sometimes go on for decades. These two stakeholders have opposed any effort the complete overhaul of the civil penal code. CJP should use his influence on the bar association to convince them to act as a civic body to lobby for the complete overhaul of the panel code.

The second area that needs attention and mentioned by the CJP is the administration of the system of justice. He believes that the caseload is way too high for a judge to handle for a human being. Since cases remain pending the caseload rises exponentially every year which we can say is like a circular debt in the justice system, just like the one we have in our energy sector. This circular debt has to be cleared which is not possible until the penal code is reformed so that delays conclusion of cases can be eradicated. Increasing the number of judges and introduction of computer technology can also help improve the productivity and efficiency of the judges.

The third area for improvement mentioned by the CJP is the deteriorating quality of judges. In his view, it is because of lack of interest in continued education through refresher courses, bad quality law colleges, and influence peddling in seeking a position as a judge. All of these are relevant issues but after talking to many judges I believe that system of appointment of judges needs serious reforms. First, appointments from bar associations for higher judiciary needs to be stopped. Bar members can become judges up to district and sessions judges and after that all appointments should be made from among these judges for career progression at higher courts. Second, there has to be involvement of civil society in the appointment of judges. Names recommended for district and session courts should be announced for public comments so that these views can be included in the process. Third, there should be a quality review for judges that have been on the bench for two or three years to see if they have met the standards and understand the law. Similarly, there should be some role for civil society in nomination and confirmation of higher judiciary. Judges should also be subjected to accountability laws to prevent corruption.

My other objection to register with CJP is that suo moto powers should be used sparingly rather than extensively. Lastly, many politically significant petitions were returned by the registrar but were accepted by CJP for hearing after political maneuvering that gives an impression of a bias and succumbing to outside pressure. It may not be true but the perception is there. The process for acceptance of petitions under article 184 (3) should be announced by the Supreme Court so that politically motivated petitions can be rejected or accepted in a more transparent manner. Another objection I have is that punishments granted in petitions under article 184(3) should not be announced by the Supreme Court but rather they should send the case to a lower judiciary for a proper trial. This will allow the person to exercise their right to appeal which is a basic constitutional right of each citizen. This right of a citizen has been denied in recent disqualification of politicians of both PML-N and PTI.

I would also like to suggest to my politician colleagues that when we fail to deliver to the people in terms of quality legislation and good governance then we provide space for other institutions to fill that void. We can only push back an overreaching judiciary by performing better as legislatures and executive.