Pakistan Is Facing Its Worst Judicial Crisis In History – OpEd

The governance system in Pakistan is on the verge of almost total collapse. As our judges, generals, and ruling-class politicians continue to engage in egotistical, myopic, fractional battles for money and power.

On the other hand every day there are new reports of dozen dying and injured on daily basis — in stampedes during distributions of free/subsidized flour throughout the country. Only Last night eleven poor and needy people lost their lives and several fell in drainage during the distribution of free flour in a factory situated in an industrial area in Karachi.

Interestingly, the president and prime minister are busy in exchange of letters, blaming each other. They are actually at war. The Election Commission of Pakistan challenges the Constitution and the Supreme Court on the issue of holding two provincial assemblies’ elections within ninety days. The prime minister of Pakistan attacks the chief justice of Pakistan on his biases. Government leaders threaten it’s either Imran or them. The doctrine of necessity is being revived by a caretaker. The military is considering its operations on how to tackle the highly polarized polity, economic bankruptcy, and judicial crisis. Above all the more dangerous are the deep cracks that happened in the superior judiciary.

A glimpse of our bleak judicial history 

The portrait that emerged from 75 years of judicial history is an ugly and controversial one. The stems are from the controversial 1954 judgment of Pakistani Chief Justice Muhammad Munir who validated the extra-constitutional use of emergency powers by Governor General Ghulam Muhammad. Further the judicial murder of Zulfikar Ali Bhutto. The re-incarnation of the Doctrine of Necessity in the Nusrat Bhutto case justified the martial law of General Zia. The validation of Musharraf’s coup d’état in 1999 by the Supreme Court of Pakistan led by Chief Justice Saeed-u-Zaman Siddiqui. The infamous Supreme Court order validating the proclamation of emergency of 3rd Nov 2007, PCO 2007, and oath of the judges written by Chief Justice Abdul Hameed Dogar commonly known as Dogar courts. The audio call leak of Justice Abdul Qayyum of Lahore High Court. The highly controversial role of judge of the Supreme Court late Muhammad Rafiq Tarer. The eight years of tumultuous but biased role in the case of his son of Iftikhar Muhammad Chaudhry as Pakistan’s Chief Justice. The scandalous role of Chief Justice Saqib Nisar commonly known as Baba Dam is a few instances of their unconstitutional role during their tenure. They were highly politicized, and their judgments are remembered as highly controversial, biased, and counterproductive in the country’s judicial history because their appointments were made either at the behest of the establishment or political elites therefore they served their inductors in judiciary and return got lucrative jobs and privileges after their retirement.

Recent cracks in superior judiciary

The irony is that all those judges, their role, and their judgments were criticized after their retirement but it is the first time that the sitting Chief Justice of Pakistan has become under fire for his role from within the judiciary.

A new constitutional crisis has emerged which for months has been engulfed when Pakistan’s Supreme Court’s five-member bench, led by Chief Justice Umar Ata Bandial gave a split 3-2 decision. that elections for the provincial assemblies in Punjab and Khyber Pakhtunkhwa must be held within 90 days but Justice Jamal Khan Mandokhail and Justice Syed Mansoor Ali Shah — who were among the four judges who had written additional notes in the Feb 23 order — dissented with the ruling—questioned the role of Chief Justice— describing it one-man show in the Supreme Court.

On the other hand, the government presented a bill curtailing the powers of the Chief Justice and duly passed by both the National Assembly and the Senate of Pakistan. Thereafter the division in the superior court further depends on a series of following actions and reactions by the judges of the Supreme Court—Fresh order overrules Justice Isa-led bench that sought a halt to all matters under Article 184(3)

• CJP refuses to form full bench, three judges to hear PTI petition seeking polls in Punjab.
• Justice Mandokhail says he wasn’t consulted on the reconstitution of the bench.
• Overcome with emotion, Justice Bandial insists judges are united despite differences.

Furthermore, the Supreme Court witnessed high drama on Friday, with one more judge recusing himself from the remaining four-member bench hearing a PTI petition against the delay in the election of the Punjab Assembly.

Justice Jamal Khan Mandokhail withdrew himself from the bench a day after Justice Amin-ud-Din Khan did so on Thursday. Justice Jamal’s note further widened the cracks and exposed the controversial role of the sitting Chief Justice. Justice Mandokhel explained in his note that the order of constituting a three-judge bench after the recusal of Justice Amin-ud-Din Khan was not dictated in the open court, but rather in his absence and without contacting him for participation in the deliberations. “I felt that the three members of the bench, for reasons best known to them, opted not to involve me in the consultation,” he said, adding that the present petition was the outcome of the previous proceedings which were dismissed by two members of the bench (Justice Yahya Afridi and Justice Athar Minallah) through their respective short orders, followed by him and Justice Syed Mansoor Ali Shah.

Right from the first date of hearing of the present matter, Justice Mandokhel said, he wanted this bench to resolve the controversy of the March 1 order regarding elections in Punjab and Khyber Pakhtunkhwa and its ‘order of the court’, which has still not been issued till date, as it is of great significance to the present matter.

No heed was paid to this issue, despite raising it repeatedly, he said, adding that the AGP, members of the legal fraternity, and counsel for the political parties also requested for resolution of this issue, but received no response from the other members of the bench.
“Under such circumstances, I do not want my presence on the bench to make my brothers uneasy, as such, I do not wish to remain on the bench,” Justice Mandokhel observed.

Despite a perfect storm in the superior judiciary and repeated calls from the legal fraternity and intelligentsia, the Chief Justice is still reluctant to constitute a full bench on the matter. The CJP should avoid giving the impression that only like-minded judges are being included in larger or special benches. He should also dispel the perception that he was referring sensitive matters to his like-minded judges.

The single cause of division in the judiciary

A close analysis of judicial history in the country about its controversial and politicized role depicts that the root cause is lying in the procedure of appointment of the judges in the High Courts and their further elevation to the superior judiciary.

The eligibility for appointment of judges of the Supreme Court of Pakistan is in the Constitution of Pakistan under article 177. The Chief Justice of Pakistan and all judges of the Supreme Court of Pakistan are appointed by the president under the procedure and in accordance with article 175A. To become the judge of the Supreme court of Pakistan, one must be a citizen of Pakistan, should have been a judge in any High Court of Pakistan for at least a period of five (5) years, and should have been an Advocate of any High Court of Pakistan for at least a period of fifteen (15) years.  

For the appointment of the judges of the High Court, there is a procedure under the constitution of Pakistan. Article 175A (5) clause (2), there should be a judicial commission for the appointment of judges of High courts same as in the Supreme Court of Pakistan. The commission has or consist of, the Chief Justice of the High Court as a member of the commission from which the appointments or position are made, a most senior judge of the High Court, a provincial Minister for law, a senior Advocate who had practical experience at least of fifteen (15) years in High Court is to be nominated with the consultation with provincial Bar Council for the period of two years.

There are some requirement to become a judge of the high court, as under article 193. A person has not become a judge until he is a citizen of Pakistan and his age should be at least forty-five (45) years old. He had at least ten (10) years been an Advocate of the High Court. Amazingly the Constitution speaks about experience, citizenship, and age but does not require an appointment on merit and of men of high integrity, virtue, transparency, and impartiality as judges of the Supreme Court and High Court. Articles 177 and 193 of the Constitution only speak about citizenship, age, and experience as eligibility for the appointment of judges whilst Articles 62 and 63 thereof contain the qualifications and disqualifications for the membership of national or provincial assemblies, respectively. Can these standards not be used as a rule for judges’ appointments?

Aristotle rightly called “justice” the virtue of virtues as judges are expected to do justice without fear or favor, affection or ill will. Socrates counseled judges to hear courteously, answer wisely, consider soberly, and decide impartially. These judicial virtues are all aspects of judicial diligence. It is appropriate to add to Socrates’ list the virtue of acting expeditiously, but diligence is not primarily concerned with the expedition.

Over time, the addition of Article 175A via the 18th Amendment to the Constitution has appeared to be a disaster regarding the appointment of Supreme Court judges due to the involvement of Pakistan Bar Council nominees as JCP members. The reason is the PBC’s office-bearers are “selected” on a political basis, not on merit. At least, now, the method of assessment should also be quantified allowing JCP members to assign scores to each candidate against factors like professional qualifications and experience, high integrity, impartiality, independence, intellectual capacity, analytical skills, efficiency, professional conduct, and behavior but contrary to that, the judges are appointed in the high courts and elevated to the Supreme Court purely on political grounds or like and dislike of the powerful forces.

Despite the fact that all three known models of judicial appointments – namely, the politicized, judicialized, and institutionalized models – have been practiced in Pakistan, our judicial system is yet to achieve the requisite standards of judicial independence

The proposed way out

Short term 

The tremendous powers of the Chief Justice of Pakistan to assign cases and form benches have done lot of damage.. The bar, civil society, and political parties had been demanding the regulation of the vast discretionary powers of the Chief Justice for long, but now the brother judges have also jumped into the fray and are demanding reform. Therefore, it is crucial to have safeguards in place against arbitrary case allocations to prevent even the slightest suspicion of illegitimate influence on the functioning of the judiciary.

The current system of case allocation in Pakistan poses significant risks to the right to a fair trial, judicial independence and the rule of law. The amendments to curtail the power of CJP in the recent bill must be approved by the president in the best interest of justice and fair trial. 

Long term

It is pertinent to mention here how an effective judicial system can only be put in place if efforts are made to produce highly skilled adjudicators at the lower and high courts level, who are recruited transparently, by a professional council, not sitting judges, and extensively trained at a center of excellence or a reputable university. Hence, emphasis must be placed on the quality of justice. Once the quality of justice and the principles of impartiality and fairness are established, the rest would follow automatically.

The country cannot afford any of its top judges to be seen to be associated with one political narrative or the other. It bears repeating that all the stakeholders must immediately put their minds together and reintroduce robust, merit-based, free-from-all-lacunas, criteria for induction in the judiciary and resolve their differences amongst themselves. An openly divided judiciary cannot deliver justice to the public or serve as a check on the executive and legislature in any meaningful way.

Sher Khan Bazai is a retired civil servant as secretary of education Government of Balochistan. The writer can be reached at [email protected]