Can the Politics of Judges Craft the Rule of Law in Pakistan?

ne fiat tantum iustitia, sed et pateat fieri

“Justice should not only be done, but should manifestly and undoubtedly be seen to be done”

– Lord Chief Justice Hewart

Justice is a basic virtue. It may not be a “cloistered virtue” but in delivering justice, the Pakistani judicial system ought to ensure that its end-product is not only ‘just’ but its process of dispensation is perceived as ‘just’ too. Before we discuss some of the glitches in this process, let us ask what constitutes a ‘good judge’? It is said that a good judge conceives quickly and judges slowly. That is, “judicis est jus dicere, non dare” (trans.: it is the property of a judge to administer justice, not to give it) and “judex habere debet duos sales, salem sapientiae, ne sit insipidus, et salem eonscientiae, ne sit diabolus” (trans.: a judge ought to have two kinds of salts-the salt of wisdom, that he may not be insipid and the salt of conscience, that he may not be a devil). An empirical study of Canadian judges by McCormick and Greene has identified seven essential traits of a ‘good judge’: industry and diligence, courtesy, empathy, patience, knowledge of the law, intelligence, and sense of fair play. Independence of judiciary is often considered as a key enabler for a ‘good judge’ and the bedrock of a civilized, democratic society. Operationalisation and institutionalisation of judicial independence in Pakistan entails four core components, namely (a.) security of service of judges, (b.) financial adequacy in terms of salaries and benefits of judges, (c.) administrative freedom to develop the rules and procedures to manage the litigation process for dispensation of justice fairly, transparently and consistently, and (d.) judicial accountability to ensure ethics, integrity and discipline within the judicial system.

But what does ‘independence of judiciary’ mean for Pakistanis in the first instance? There are two core ingredients of judicial independence. And while people in Pakistan often mention the first one, that is, the separation of judiciary from the other two branches of government, executive and the legislative, there is little emphasis on the second ingredient, namely a guarantee that judges make decisions free of any influence or conflict of interest, without fear or favour, affection or ill will, and solely on the basis of fact and law.

The first ingredient not just ensures a trichotomy and separation of powers but it also puts an extra onus on each branch of the state of Pakistan to avoid assuming responsibilities or intruding into other branches of the state, just as Lord Dilhorne advised the judges “to stay out of the arena” and “neither have nor assume responsibilities” to be a prosecutor or a plaintiff. Pakistan’s judiciary has come a long way from Chief Justice Munir’s deathblow to constitutionalism and rule of law in 1955 that paved the way for future extra-constitutional actions, and judiciary’s ensuing validations of military governments to the present judicial hyperactivism of 2012. In the past few years, an overzealous and aggressive judiciary in Pakistan has, prima-facie, often gotten embroiled into executive and legislative business in a climactic order. For instance, the public and legal opinions remain divided over some of the Court’s intrusive judgements such as the conviction and in effect dismissal of a prime minister and thereby a federal cabinet on charges of contempt, the direction to dismiss Balochistan government on failure to maintain law and order in the province, the annulment of a constitutional amendment that had defined a procedure for judicial appointments and instead seizing the de facto hiring and firing powers for itself, the annulment of laws such as the law of contempt which had permitted fair speech relating a judgement or a judge’s conduct, treated all judicial officers equally and provided immunity to holders of public office while performing their functions, the monitoring of and directions on prices of everyday consumer goods like sugar, fuel, gas etc, and the handling of allegations of bribery and blackmailing on the chief justice’s son. It is obvious that the delimitation of powers and obligations of various branches and organs of the state in Pakistan is still evolving and an institutional equilibrium has not arrived yet. A historical sense of insecurity and mistrust has kept the organs of state busy fighting turf wars, while little attention has been paid on improving the internal dynamics, processes and efficiencies within their respective domains. Ironically, when institutional heads relentlessly critique or advise another institution on how it should perform but have little interest, time or energy to do realistic and pragmatic institution-building at home then a ‘balanced government’ and ‘institutional equilibrium’ may remain unfulfilled dreams.

While the first ingredient of judicial independence sets a framework for constitutional governance and lawful coordination and interaction between branches of the state, it is the second ingredient that would promise true rule of law in Pakistan. Judicial impartiality, integrity and accountability are the supreme judicial virtues, as these generate public confidence and institutional legitimacy. Lord Bowen emphasized, “judges, like Caesar’s wife, should be above suspicion.” Note that administration of justice is not synonymous to public administration or to a political movement. The courts are apolitical institutions that draw their powers from constitution and laws, and should not seek power from interest groups whether it is media or the bar. In fact, too cosy relationships between the bench and the bar, or between the bench and the counsels for either party, or with the parties themselves are detrimental to judicial impartiality and accountability in Pakistan. For instance, although the precise number of visits and speeches made by the chief justice of Pakistan to various bar associations across the country or the delegations received in the office vice versa since 2005, and likewise by other members of the superior judiciary, is not available but, based on media reports, these have happened on a regular basis, almost on every other weekend. It is not a surprise that few commentators have questioned those appointments to the superior judiciary, when lawyers were apparently rewarded for their personal or financial contributions to the movement for reinstatement of the chief justice. A question arises whether there exist effective checks and balances to safeguard against judicial cronyism and malpractice and to ensure judicial integrity and impartiality in the administration of justice in Pakistan?

Corvinus, Johannes Arnoldi

Iurisprudentia Romana

Amsterdam, 1644

Justice has to be impartial (think, why is it shown blindfolded in statues) and the central tenets of administration of justice are impartiality and public scrutiny of judicial process. It can not be assured in Pakistan without adherence to the principles of open justice, judicial accountability and its performance benchmarking. This means that the proceedings are conducted in an open court accessible to the public and the media, judges speak through their reasoned judgements only and publish reasons for their decisions, accord complete procedural fairness to parties, avoid perceived or real bias whether it is bias on account of obstinacy or arising out of preconceived notions or an institutional bias, and ensure absolute fairness of the suit/trial. Nothing is more unfair than venal justice and “judex bonus nihil ex arbitrio suo faciat, nee propositio domesticiae voluntatis, sed juxta leges et jura pronunciet” (trans.: a good judge ought to do nothing of his own pleasure, nor may he have in view the gratification of his private inclination, but pronounce according to law and justice). This is why Jeremy Bentham argued that, “publicity is the keenest spur to exertion and the surest of all guards against improbity; it keeps the judge, while trying, under trial,” and Chief Justice Gleeson explained that open justice and judicial accountability to the public are guaranteed through close scrutiny by both the legal and general communities. On the contrary, the working of the Court has become increasingly opaque in Pakistan with only a very small group of judges entrusted with sensitive cases relating to other organs of the state, with likely suppression of dissent on the bench such as those headed by the chief justice invariably deliver unanimous verdicts, and with a lack of transparency such as the refusal to parliamentary public accounts committee audits or even failure to disclose accounts to public, if there were any internal or external audits. H.G. Wells said, “In the Country of the Blind the One-Eyed Man is King.” Public scrutiny of country’s judicial processes is imperative to strengthen the judicial independence and judiciary in Pakistan, as in the words of Justice William Brennan, “it enhances the quality of proceedings and safeguards the fact-finding process which benefits both the defendant and the society.” This implies that transparency and public scrutiny safeguard against any attempt to corrupt a judicial system, promise justice as well as a just and balanced government, and promote judicial integrity and capacity. One is reminded here of Lord Acton’s warning, “everything secret degenerates, even the administration of justice; nothing is safe that does not show it can bear discussion and publicity.” This should also facilitate an institutional equilibrium in Pakistan, which is not a free market phenomenon but a legal balance that respects institutions’ roles based on constitution and laws and not on individual ego or self-service.

Judges speak through their decisions and judicial officers are not supposed to play to the galleries. Chief Justice Warren Burger commented, “judges rule on the basis of law, not public opinion, and they should be indifferent to pressures of the times.” The Pakistani judicial system faces four key systemic challenges in this context, (a.) a bolshie use of the power of ‘judicial review,’ which raises two concerns: Firstly, ‘judicial review’ is actually meant to review not just violations of constitutional and legal rights of citizens but also a misuse or abuse of powers by all functionaries of the state, including the judicial officers at all levels. The maxim - “be you ever so high, the law is above you” - applies to the judicial officers as well. It is thus imperative to incorporate detailed guidelines for Judicial Ethics either within a standard Code of Judicial Conduct or into the recruitment offers and oaths of all judicial officers in Pakistan. Secondly, the wilful exercise of ‘judicial review’ has lacked consistency in application and interpretation. Rhetorical political posturing or micromanaging the business of the state by a court undermines its legitimacy in the long run. The precise number of suo moto proceedings by the superior judiciary in Pakistan since 2005 is not available but these are likely to be in hundreds. Would this actually deliver ‘justice’ or would the Court be perceived as a judge, jury and executioner?; (b.) an undue use or threat of the Contempt of Court law which has in reality suppressed even meaningful critique of judgements or a judge’s private conduct in the country; (c.) issue of “angel petitions,” wherein either a lawyer/court staff lodge a proxy plaint on behalf of the presiding officer or the brother/sister judges and magistrates use their power of ‘cognisance’ to lodge/initiate a suit in another court; and (d.) conduct of preliminary investigations, prima-facie determination of culpability of an offence worthy of prosecution, and so an assumption of ‘trial’ functions by the superior courts that seriously taints the judicial process. In fact, such a misuse or abuse of judicial powers could effectively make the courts/judges parties to an issue, drastically affect procedural fairness by limiting avenues to recourse, impression and prejudice the investigation agencies, prosecution and trial courts, and may lie on the borderline of judicial autocracy.

The approach of a society to the role of its judges has critical implications for judicial ethics, integrity and accountability. Firstly, there is a historic divide between judges as ‘umpires’ and ‘interpreters of law and constitution’ and ‘political judges’ who become ‘arm of popular opinion.’ Some might argue that the first role is for judges in a stable society and the second role for judges in an unstable society ridden with injustices and inequalities which by its nature may require a ‘political court.’ But note that the effects of environmental factors and social stimuli on personality make-up have been empirically validated and judges are also products of a society. So what evidence does one have that the arbiters in an unstable, chaotic society themselves or the politics of judges will not be a product of similar stressors, or owe their offices to similar inequalities, or are not impressioned by popular opinion, and are rather emotionally and psychologically stable? Shouldn’t judicial appointments in Pakistan require prior psychological testing to assess candidates’ emotional and social quotients and evaluate their personal and social competence, such as in Austria, Hungary, the Netherlands or Kyrgyzstan and the civil-military bureaucracy in Pakistan? Secondly, by the same token, one can argue that judicial system in an unstable, chaotic society as Pakistan’s, ridden with several disparities, is as a matter of fact also heavily burdened with a plethora of cases which delays or limits timely access, delivery and affordability of justice. In such a situation, there is an inherent risk in consolidating all supreme powers in one Court or office, as it would exacerbate unwarranted turf wars, lead to a gridlock and cause delays. In order to expedite and streamline dispensation of justice to the common man especially in regard to routine civil, criminal or other special laws, and to avoid bringing the government to a standstill, as one notices that the incumbent government has probably less governed but spent much of its 5-years term in the Court, and in order to strengthen the system of checks and balances, it is now necessary to establish a ‘Constitutional Court’ in Pakistan, such as in Germany, Austria, France, Turkey or Egypt, that is entrusted with the exclusive responsibility of interpretation of the constitution. Thirdly, the current procedure for judicial appointments in Pakistan wherein the Court enjoys primacy and has the de facto hiring and firing powers for itself is contrary to the fundamental principle of natural justice, “nemo judex in causa sua” (trans.: no man may be a judge in his own cause). The joint parliamentary committee need to be strengthened and should have more powers in the recommendation and confirmation to appointment and the recommendation to removal of judges from office. In fact, all appointments to the superior judiciary should be subject to its confirmation hearings.

Judicial independence is often considered as the reason why judges and the bar would seldom talk about judicial ethics, integrity, accountability, impartiality and transparency. However, the fundamental reason for judicial independence should not be ignored. As Justice McGarvie reasoned, “it is important not to cast a good principle too widely. The only independence which I seek to justify within the principle of judicial independence, is that which, if absent, would put at risk impartiality in deciding court cases.” Judicial independence has to be in the interest of justice and it is, therefore, imperative that it vests in persons who will behave in an ethical manner in their judicial and personal lives. Lord Buckmaster advised, “the importance of preserving the administration of justice from anything which can even by remote imagination infer a bias or interest in the Judge is so grave that any inconvenience experienced in its preservation may be cheerfully endured.” The chief justice of Pakistan would do well if he is able to develop enduring ethical values, structures, processes and efficiencies throughout the judicial system which create a sustainable institutional legitimacy that is a rational, pro tanto moral obligation based on the rule of law, and is not person-centred or based around a cult or clique within the Court/judicial system. One of the responsibilities of being a judge is that one is expected to rise above one’s mortal self and dispense justice with a divine-like objectivity. One must not forget the maxim – “qui altari serviunt ab altari vivant” (trans.: they who serve at the altar, should live by the altar). Those who feel shy of taking this responsibility and meeting the demands of this role had better not vie for it.

So, who will judge the judges? The people of Pakistan have every right to ask what mechanisms have been put in place to check on the use, misuse and abuse of judicial power, what code of judicial conduct and judicial ethics oversee court personnel and ensure judicial integrity and impartiality, what legal and ethical guidelines direct a judge’s disqualification or recusal, what rules govern a judge’s civic, charitable, quasi-judicial and extra-judicial activities, what rules monitor a judge’s personal finances, business or financial dealings, and financial disclosures, what rules administer a judge’s political activities or expression of views on contentious political issues, and so on. In essence, how effective and efficient these mechanisms are really working, if they do exist, or else what effort is being made to genuinely strengthen the institution instead of bolstering an office, person or turf war? Justice Louis Brandeis famously wrote, “sunshine is the best of disinfectants,” and his prescription is valid when it comes to the administration of justice in Pakistan!