Judiciary is one of the central constitutional organs of any state. However, the role and significance of such organ increases manifold in fragile and vulnerable democracies like ours where threat of authoritarianism and extra-constitutional interventions looms large.
Judges, who are not elected but appointed through a process largely controlled by the judiciary itself, are burdened with the responsibility to preserve, protect and defend the constitution under the oath they take. Historically speaking, there has been a progress in judiciary demonstrating some resistance against direct extra-constitutional interventions. Yet an argument has been persistently tossed in the media against frequent judicial interventions in the executive and legislative domains, thereby undermining the performance of these organs and ultimately weakening the democratic setups.
In response to that, the judiciary has always claimed to intervene only where the governments failed to perform their due role and the valuable rights of citizens were jeopardised.
The frequency and scope of interventions may vary but the most important role is that of chief justices of the concerned high court, or as the case may be, the Chief Justice of Pakistan (CJP).
Although legally speaking, judicial role of the CJs and CJPs is akin to any other judge, however, there are administrative powers vested in them, particularly those related to appointment and removal of judges as well as to constitute benches and fix cases. This provides them with novel opportunities not only to shape judicial responses vis-à-vis other institutions for as long as they occupy such offices but also enable them leave deep-rooted effects on the institutions.
Under the constitution, the CJP acts as Chairman Judicial Commission of Pakistan, which dominates the process of appointments in the Supreme Court, high courts and the Federal Shariat Courts. The CJP also has a vital role in the appointment of ad-hoc judges in the Supreme Court. Even in the matter of transfer of judges from one high court to another or the Federal Shariat Court, CJP is a consultee.
Whether the process of appointment of judges has attained objectivity and transparency and contributed to effective and efficient dispensation of justice is still a matter of debate. There has been a persistent demand from the bar councils to amend the Judicial Commission of Pakistan Rules, 2010 to provide for an objective criteria for the selection of nominees — to provide for equality of opportunity to all deserving lawyers and judicial officers of subordinate judiciary, but to no avail.
The CJP also heads the Supreme Judicial Council (SJC), the forum provided by the Constitution to inquire into alleged misconduct of the high court and Supreme Court judges. The process is essentially that of self-accountability, which has been rightly criticised for being ineffective, for demonstrating institutional biases and preferences, and for undue secrecy and control.
The SJC Conduct of Inquiry Rules, 2005 fail to address such criticism. The Chairman SJC, who receives all complaints, gets to pick and chooses which complaints are to be inquired into and placed before the Council. In the absence of a public disclosure of the total number of complaints received, decided and having become infructuous due to retirement of the concerned judge, the CJP, who is Chairman of the SJC, will keep on exercising his control. The risk associated with such absence of transparency is that it may be used by the CJP for controlling the judges against whom complaints are pending, thereby undermining independence of the judiciary.
During his tenure, a number of complaints were filed against the CJP Saqib Nisar, yet none was fixed for hearing. May be all were meritless, nonetheless the Supreme Court Rules ought to have been amended to provide for a fair procedure in this regard for the determination — if prima facie any complaint against the CJP ought to be fixed for hearing and that such decision-making must be kept away from the CJP and the next senior-most judge who might have any interest in the matter.
The chief justices of high courts enjoy much wider roles under the constitution. Be it a matter of appointment of additional judges of the high court or their confirmation as permanent judges, the chief justice of the high court is crucial inasmuch as the process is set in motion on his proposals and reports, although decisions in this regard ultimately rest upon recommendations of the Judicial Commission of Pakistan. Likewise, be it a matter of the constitution of new benches or circuit benches or fixing territorial jurisdiction of the benches, the chief justice of the high court has a vital role.
High court is possessed of original, appellate, revisional and constitutional jurisdiction in civil, criminal, commercial and constitutional matters and the most important power vesting in the chief justice of the high court is the power to constitute benches and fix cases. There has been a persistent demand from the bar councils to structure this discretionary power; this has engendered controversies in high media value cases in recent times.
The high court chief justice exercises administrative control over the subordinate judiciary in terms of appointments, transfers and posting of the judicial officers, etc., as well as those of the assets of the institution throughout the province and Islamabad Capital Territory, in case of the Islamabad High Court.
Administrative Committees of the high courts assist the chief justices in the exercise of these powers and performance of these administrative functions. Wider as these roles are, the level of responsibility is equally increased. Growing instances of recourse to violence and intimidation by lawyers of the judicial officers, law-enforcing agencies and media as well as unwarranted culture of strikes, etc., make these roles quite challenging, at least in the province of Punjab and now the Islamabad Capital Territory.
Absence of proper standards in legal education and assessment, lack of infrastructure to impart proper training of lawyers in the making, availability of room for corruption and exploitation in the subordinate judiciary and inequality of opportunity to grow in the profession are some important causes for the increasing intolerance amongst lawyers.
Although, in terms of the constitutional mandate, the supervision and control of all courts subordinate to it vests in the high court alone, however, in the case of recourse to violence by the lawyers in Multan on the pretext of absence of adequate facilities, the Supreme Court, headed by the outgoing Chief Justice Saqib Nisar, intervened in the matter to undo the orders of transfer of Katchehry to the new judicial complex.
The matter remains debatable as to whether the Supreme Court could intervene to call in question the exercise of administrative powers by the high court. But this was not the first time that the Supreme Court had intervened under Article 184(3) of the Constitution in the administrative matters of a high court.
The Supreme Court is the apex court of the land and Chief Justice of Pakistan occupies the centrestage in this powerful institution, apart from exercising appellate powers, original jurisdiction of the Supreme Court to hear disputes inter se the governments and enforcement of fundamental rights under Article 184(3) of the Constitution. The discretionary administrative power to constitute benches and fix cases is vested in the Chief Justice of Pakistan under the Supreme Court Rules framed in terms of Article 191 of the Constitution.
Also read: The Saqib Nisar court
Most of the judicial interventions against executive or legislative actions have historically taken place on the pretext of enforcement of fundamental rights and that, too, mostly by the then CJP Iftikhar Muhammad Chaudhry and five years thereafter by the Chief Justice Saqib Nisar.
The nature and scope of orders have varied to some extent but there are similarities in the procedure invoked by the two chief justices. Maximum use of discretion was made by the two CJPs to constitute benches headed by themselves, to pick and choose cases to be fixed before them and initiate a number of actions on their own motion, in order to effectively assert themselves against other organs of the state.
Despite repeated demands of the bar councils to structure the absolute discretionary powers of the CJP to constitute benches and fix case, and to amend the Supreme Court Rules, 1980 to provide for a fair procedure governing hearing of the cases under Article 184(3) of the Constitution, the Chief Justice Nisar paid no heed and was least concerned with fairness of the proceedings.
The writer is an advocate of the Supreme Court and Member Executive Committee of the Pakistan Bar Council