DID it not come across as humorous when Justice Mansoor Ali Shah reportedly wondered aloud in the Supreme Court whether, in the absence of constitutional benches, his bench would be considered an unconstitutional bench? Humorous to many, but perhaps heart-wrenching to others; the concerns that such a query raises are worrying.
The 26th Amendment has been touted by many as a victory for parliament, or, in other words, a manifestation of parliament regaining its sovereignty. Although many may see it that way, the reality is that such sovereignty is being resurrected on the ruins of an already embattled judiciary.
The ramifications of the 26th Amendment were foretold prior to its passage; however, the effects are now becoming clearer.
Firstly, through the Judicial Commission, parliamentarians and their allies now have a dominant say in the appointment of judges. Secondly, the politician-inclined Judicial Commission now also decides on which judge sits where, for how long, and in relation to which matters.
Thirdly, the 26th Amendment has set up parallel power centres within the same set-up, ie, the Supreme Court and Sindh High Court now have two centres of authority in their respective courts — a chief justice of the regular benches and the presiding officer of the constitutional benches.
Why not create two parallel power centres in each institution, and champion it as a means of greater efficiency and better management?
These issues are not trivial; rather, they are at the very heart of judicial independence. Judicial appointments are fundamental for maintaining an independent judiciary free from political interference and influence. It is in this light that judges have often been considered most suitable to nominate and appoint new judges, either from the pertinent court below or from the bar itself. It is argued, and perhaps correctly, that having observed and interacted with various lawyers and judges on a daily basis, these judges would be in an ideal position to decide on the competency of each of the candidates being considered.
Maintaining a commission with representation from varying segments of society, including parliament, is not necessarily bad. But when the commission is established in such a way that, in effect, the parliamentarians and their allies have a majority over the judges themselves, you are inviting trouble.
Parliamentarians, along with those allied with them, should never have an overwhelming majority, or enough members to essentially push through their nominations at the expense of the opinions of experienced sitting judges. This is all the truer in a situation where no specific criteria for appointments have even been set out. It invites politics, and makes any subsequent appointment political, with a nominated judge possibly being viewed as a political appointee.
Secondly, it is difficult to digest why, how, and in what world it can be considered kosher for such a commission to decide which judges will hear what kind of case. It goes against the very grain of judicial independence.
If this were not enough, a politician-inclined judicial commission also determining the tenures of judges on a particular bench, whether that be two months or two days, smacks of interference and bad faith. It creates uncertainty in the ranks, chills the ability of the nominated judges to work independently, and, if someone does not presumably fall in line, also carries the risk of censure by way of removal of the judge from the benches.
It must not be forgotten that any judge on a constitutional bench will be deciding on the legality of governmental actions, as well as the vires of laws created by parliament, amongst other things. How can judges be expected to independently review governmental actions and the legality of laws, when they are themselves being appointed by members of that very parliament and government, effectively? It’s oxymoronic. They, in effect, nominate judges to judge them, and if they don’t like the judging, they can simply change the judges. How is that fair or even reasonable?
Here, I ask in all seriousness, how effective would an executive be with two prime ministers at the helm? How about two parliaments, one for certain matters and another for others? How about if our beloved bar associations had two presidents in each association? In fact, why stop there? Why not create two parallel power centres in each institution, and champion it as a means of greater efficiency and better management?
The reason why this would not be effective is simple. Multiple power centres within the same institution breed intrigue, conflict, and confusion. A single unitary head is meant to garner better administration, greater uniformity in decision-making, and serves as a deterrent against factionalism within an institution.
In much the same manner, maintaining a single head in the Supreme Court and the Sindh High Court is required for a more effective administration that allows the judiciary to ward off external threats and cater for more efficient internal housekeeping. The effect of having two effective chief justices in the Supreme Court, or in the Sindh High Court for that matter, is not a recipe for success. It is a recipe for utter chaos. It is an attempt to whittle down judicial unity, weaken an already beleaguered institution, and divide and rule, unfortunately.
Lawyer Muneer A. Malik had said early on that no lawyers’ movement is possible without the Supreme Court taking a stand. Unfortunately, the Supreme Court, to date, has shown that it has no legs to stand on. However, even in these times of worry and disappointment, the struggle to attain and retain judicial independence must continue, in whatever manner possible.
Perhaps, in relation to this, the recusal of a courageous sitting judge of the Sindh High Court, Justice Omer Sial, from the constitutional bench is the first step in that very long and difficult path to judicial redemption. Perhaps, there will be more. And perhaps, the judiciary will find its feet and resolve to address the elephant in the room, that is, whether the concept of judicial independence is to be jealously guarded, or whether it is now a thing to be jealously guarded against.
The writer is a lawyer based in Karachi
X: @basilnabi
Published in Dawn, November 30th, 2024
