The Sacrosanct Judiciary
In the recent days, the event of an elected Prime Minister being disqualified and subsequently removed from power has brought to limelight the considerable power that the judiciary holds under the clichéd notion of separation of powers. The judiciary in Pakistan, as in any democracy of the world, has held quite an important status for the masses; it has long been the pillar of the state from which the oppressed and persecuted have sought refuge and salvation.
Since its early days, Pakistan followed in the footsteps of its former rulers through a manifestation of an interim Constitution, which was the Government of India Act 1935. However, this interim stage spanned over six long years through which we finally drafted our first Constitution.
This colonial legacy that the British had left, was perpetuated and allowed to flourish by the constitution-making committee that failed to make any stringent reforms in the final draft of the Constitution. And presented before us somewhat of a spitting image of the Government of India Act 1935, in terms of structure and functioning of the state.
The lack of considerable reforms, especially in the structure of Judiciary led to the foundation of a colonial enterprise, even after independence from tyrannical British imperialism. The Constitution of 1953 left us with a judiciary that inherited its mindset, code of procedures and case laws from the British. That were predominantly meant to rule over and tame the rebellious masses of the subcontinent, rather than providing them with cheap and timely justice.
The only notable post-independence reforms made in the judicial system were in 1954 that enabled the High Courts to issue ‘prerogative writs’ and renamed the Federal Court as the Supreme Court (SC). Later on, a Federal Sharia Court was also established in 1980’s to ensure that no law is repugnant to Islamic injunctions.
Due to its extensive colonial history, the judiciary in Pakistan has ever since been tinted with those very attributes, in terms of their framework, powers and jurisdiction. After the recent wave of terrorism that shook Pakistan to its core, the judiciary saw yet another hype in their perks and privileges under the pretext of wiping out corruption and ensuring swift and speedy provision of justice to the aggrieved public.
With absolute financial autonomy and intra-accountability at their hands, the judicial pay scales rose several manifolds, with a Civil Judge bagging a ‘basic’ pay of Rs.32,000 apart from allowances and increments. And at the top of the tree, the Chief Justice of Supreme Court drawing a monthly salary of Rs.5,91,651 with a judicial allowance of Rs.2,59,009. The aforementioned being in cash, the perks in kind are the provision of chauffeur driven cars with round the clock police protection, free government residence, electricity, gas and fuel according to recent details provided to the Senate.
All of these endeavors were made possible by putting a considerably large burden on the nation’s exchequer, merely to ensure that the judiciary does what it is supposed to do (even without these privileges) in the rightfully just manner. However, even after the provision of the above-mentioned facilities, the judiciary has not been able to perform up to the mark; with 1.7 million pending cases in SC and Lower Courts. Moreover, the establishment of military courts under the justification of inefficiency of the judicial courts in the provision of speedy and equitable justice is saddening.
The major flaw that has contributed to this despicable reputation and condition of the country’s judiciary is the lack of any oversight and external accountability. In parliamentary democracies, the judiciary, in theory, is accountable only to itself through the Supreme Judicial Council (SJC).
The SJC under the Article 209 of the Constitution is sanctioned to carry out inquiries into the capacity and conduct of SC and High Court judges. But this role of the SJC has long been compromised with their inefficiency in solving cases of the public and then in addition to that holding inquiries about the judiciary themselves. The slow pace of the proceedings that follow these enquiries hardly make it possible for the judiciary to execute pure accountability that is required at this point in time.
Moreover, the judicial immunity that the judges hold under the Section 77 of the Penal Code in the “good faith” decisions they make, should not be mistaken as an immunity in other cases or crimes that may be attributed to them in their personal lives or in the line of executing their official duties.
A possible remedy to curb this unfettered undemocratic omnipotence that the judiciary seems to be exercising, can be through a legislative oversight or external accountability conducted by a delegated parliamentary committee. This may seem like an over-ambitious idea at first but if we look at it pragmatically, the same is being executed in various countries in a diluted way. According to the British Supreme Court Act of 1981, individual judges may be invited to the parliamentary committee hearings to answer and comment upon the issue at hand, keeping in consideration the conventions and rules that prevent them from discussing matters related to judicial proceedings.
Under the Constitution Reform Act 2005, parliamentary committees can now call in judges as individuals and take their comments on appropriate matters. This particular practice can be taken as a precedent and dwelled into a more delegated accountability apparatus, with the parliamentary committees conducting inquiries specifically in the bounds of corruption, perjury and nepotism keeping in view the judicial immunity that remains intact under Section 77 of the Penal Code in case verdicts.
It is a dire need to address this white elephant that has eroded the trust of the public from the very beacon of hope they believed in, forcing them to take law into their own hands and resort to violence and mob justice. The question that still lingers is whether we will have the determination to think and act outside the box and bring about revolutionary reforms to the decades-old imperial judicial system that has done us immeasurable harm.
In the end, leaving a thought-provoking moderation of Juvenal’s phrase from Satires:
“Et iudices, qui judicas” – Who will judge the judges?
Previously published in The Nation and republished here with permission.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.
