Restructuring of the Judicial System – Taj Haider

Article 209 (Supreme Judicial Council) lays down the composition as well the procedure to be followed to probe into capacity or conduct of a judge of the Supreme Court or a High Court.

While the said article in Sub-article (3) sections (a) and (b) looks at the possibility of looking at the capacity or the conduct of a member of the Supreme Judicial Council who is a judge of the Supreme Court or a Chief Justice of a High Court, it clearly omits the possibility of looking into the capacity and conduct of the Chief Justice of the Supreme Court.

There is a clear procedure laid down for the impeachment of the President of Pakistan by the Parliament in article 47. However, the Chief Justice of Pakistan is not answerable to any authority if he is accused of misconduct or is perceived to be unable to perform his duties for any reason.

The composition of the Supreme Judicial Council is also faulty in the sense that it establishes a complete monopoly of the Supreme Court and makes the provincial High Courts subservient. Only two most senior Chief Justices of High Courts are council members as against three (Supreme Court Chief Justice and two next most senior Judges from the Supreme Court). This composition clearly violates the autonomy principle and concentrate authority in the Centre and de-facto in one person, who is the Chief Justice and also above probe if accused of incapacity or misconduct.

It is thus proposed that:

1) Besides the Chief Justice of Pakistan only the one senior most judge of the Supreme Court should be member of the Supreme Judicial Council.

2) The Chief Justices of all the four provincial High Courts should be members of the Supreme Judicial Council.

3) The Senate of Pakistan shall have the power to impeach the Chief Justice of Pakistan by two third majority.

A political revolution

By Rasul Bakhsh Rais

The passage of the 18th Amendment has set into motion, a remarkable, though slow, political revolution in restructuring Pakistan’s polity. This is far more momentous than restoring the parliamentary character of the constitution, or even granting provincial autonomy. The word autonomy cannot capture the true letter and spirit of the new federalism that is unfolding before us. Rather, it is about remodelling Pakistan’s political system according to a new principle of distribution of power, with the provinces as new centres of authority, power and resources.

Thinking of provinces as new centres of power and laying something down into the constitution to make them powerful, runs counter to both, the colonial tradition of supervising political evolution, and the centralised state and nation-building strategy followed for the past six decades. It goes to the credit of political parties and their leadership that they have realised that the old ways of governing Pakistan have failed and they needed to give a greater part of the power and resources of the centre, which had grown arrogant, paternalistic and insensitive to the provinces.

This structural change in the political order has created new conditions in which some groups and sections are bound to lose, while others will make gains. Who loses and who gains is an issue that will greatly impact the ongoing process of shifting power to the provinces, as the old, deeply entrenched political and bureaucratic groups fight to the last to save their little turfs and fiefdoms. In our case, the federal bureaucracy is the loser, as it cannot hope to rule the provinces under the guise of national integration, solidarity and security anymore. It will take a great deal of internal reflection on the part of the federal bureaucracy, as well as time, to adjust to the power shift. …

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