By: Yousuf Nasim
Over the last two decades, a significant amount of work has been done in Pakistan on the Constitutional subject of Judicial Independence. While the Al-Jehad Trust Case set the stage for this development by limiting political interference in the process of judicial appointments, the doctrine – as it exists in Pakistan today – reached its nadir with the Supreme Court’s order in Nadeem Ahmed v Federation of Pakistan, which precluded perceived nascent threats to independence through the proposed 18th Amendment. The 19th Amendment to the Constitution, which followed shortly thereafter, crystallised the predominance of the judiciary insofar as fresh appointments were concerned. Today the process is overseen by the Judicial Commission of Pakistan, which is composed primarily of sitting judges. The JCP nominates individuals for consideration to a Parliamentary Committee, whose decision is open to judicial review.
It is worth noting however, that the procedure by which judges are appointed is only one of the ways in which the independence of the judiciary may be undermined. There are, broadly speaking, two spheres of influence over judicial decisions. The first is the ‘Public’ sphere and the second is the ‘Private’ sphere. Within the ‘Public’ sphere of influence, there are two categories of actors. The first is that category which can loosely be described as the Executive: e.g. the Presidency, (in Pakistan) the Military, and various Police agencies, etc. It is this category which has historically been most problematic in Pakistan insofar as judicial independence is concerned. Its overwhelming influence over judicial decisions, particularly during times of democratic suspension, was critical in undermining the credibility of significant decisions. The second category of actors within the ‘Public’ sphere are legislative actors e.g. the Prime Minister, the respective Chief Ministers of each Province, parliamentarians and senators, etc.
Interference in judicial appointments is one of the means by which the ‘Public’ sphere can influence the course of judicial decisions. Yet another means by which the ‘Public’ sphere can influence judicial decisions is by meddling with the compensation regime of judges. This tactic was employed recently by the Awami National Party, an ally of the ruling Pakistan Peoples Party. In Pakistan, this tactic is particularly potent, since judicial compensation may only be modified by statutory intervention. A third, more direct tactic which may be employed by the ‘Public’ sphere, is the enactment of legislation which either seeks to curtail the powers of the judiciary or create roadblocks for them. The newly enacted Contempt of Court Act, 2012 (which is currently sub judice before the Supreme Court) is a recent example. The statute is clearly an attempt to buy time for the newly appointed Prime Minister, Mr. Raja Parvez Ashraf, once he is charged with contempt of court for refusing to write the infamous Swiss Letter. The final means by which the ‘Public’ sphere can attempt to influence the judiciary is by threat of sanction for a real or alleged breach of guidelines and rules on ethics and accountability. This tactic was employed by Pervez Musharraf in 2007 when he attempted to dismiss the current Chief Justice on grounds of corruption.
As significant as ‘Public’ sphere influence over judicial decisions, is the threat of influence by the ‘Private’ sphere. The ‘Private’ sphere of influence is in many ways far more insidious, by virtue of being more subtle. When court time is disproportionately monopolised by wealthy litigants bringing high-worth cases, public confidence in judicial independence is undermined. Such monopolisation creates barriers to ‘access to justice’ for the poorest litigants. This is particularly the case in Pakistan, where an acute shortage of judges and a heavy backlog of cases has led to the hopeless situation where court time has become a valuable commodity in and of itself. The means by which such monopolisation is affected is common knowledge: wealthy litigants, by dint of having the capacity to pay higher fees, have access to ‘senior counsels’ – established litigators who can seek greater indulgence from the bench.
Since the ‘cause-list’ system by which the superior courts of Pakistan regulate access to court-time is rife with bureaucratic inefficiency and logical inconsistencies, the discretionary basis on which the system is bypassed by judges, leads to a disproportionate advantage being granted to such ‘senior counsels’. In turn, since poorer litigants do not have access to ‘senior counsels’, they often spend decades pursuing a decree, often for the whole process to be frustrated by the death of the parties themselves. Although there is nothing inherently unethical about the use of this discretion in any given case, when seen as a whole, it undermines the perception that judicial action is equally available to both richer and poorer litigants.
The second means by which judicial independence is undermined by the ‘Private’ sphere is through direct influence and interference in judicial decisions. This can take two forms. The first is by means of financial inducement. The current prevailing view is that by allowing the judiciary itself to be the gate-keeper for fresh appointments, corrupt elements can be largely excluded from the Superior Courts. Whether this view proves correct, remains to be seen. I personally doubt that this approach can assure honesty in each and every case without further checks and balances.
The second form of direct interference in judicial decisions by the ‘Private’ sphere is when litigants, by dint of their influence and power, exert a personal influence on a judge. A recent example is prominent land developer (and frequent litigant) Malik Riaz’s assertion that he had ‘secret’ discussions with the serving Chief Justice of Pakistan. Though Malik Riaz later recanted his statement, the Supreme Court Registrar admitted that such meetings took place in his presence during the period that the Chief Justice was ‘deposed.’ It is notable however, that the Chief Justice was never legally deposed. To quote from the operative part of his judgment in the Sindh High Court Bar Association Case: “the Chief Justice of Pakistan; the Judges of the Supreme Court of Pakistan… shall be deemed never to have ceased to be such Judges…” Even though these meetings, in all likelihood, had nothing whatsoever to do with Riaz’s pending cases, a less privileged litigant could not be faulted for begrudging the former’s personal access to a senior sitting judge purely on the basis of his significant personal influence.
Though much work has already been done on the subject of judicial independence, a great deal more needs to be done. In particular, the procedure by which compensation is awarded to judges needs to insulated from legislative debate. Unfortunately, there is very little that can be done regarding direct legislative interference in judicial actions by means of statute – this is a price that must be paid for retaining the Parliament’s responsibility to remain responsive to the demands of their voters. Most importantly, a viable procedure for accountability needs to be formulated, which can assure not only that all superior court decisions are free of influence from both the ‘Public’ and the ‘Private’ sphere, but which can also respond to the threat that such a mechanism may be used to influence judicial decisions by those who control the mechanism. This is, by all means, a very complicated problem indeed.