M. Shahrukh Shahnawaz describes the judicial pedestals in the country
It is widely acknowledged that the current judicial model of the apex judiciary in Pakistan took shape after the ascendance of former Chief Justice Iftikhar Muhammad Chaudhry in the first decade of current millennium. There is an uncanny similarity between the high tide of judicial conduct witnessed after former CJs restoration and the high pitched assertion of right of judiciary to be respected and obeyed.
The higher judiciary of Pakistan is comprised of one Supreme Court and four provincial High Courts and one Islamabad High Court established to provide justice to federal capital and adjacent areas. There are 17 judges in Supreme Court including the CJ which dispenses justice from a lofty edifice situated on famous Constitution Avenue just opposite national revenue collecting authority FBR. The SC judges are taken in from all provinces on a prescribed quota and represent national consensus in judicial matters.
Lahore HC has 20 judges including CJ taken supposedly from all areas of Punjab. Sindh High Court comprises of 32 judges including CJ and the allocation drive here is predominantly on rural urban basis. Peshawar HC is comprised of 20 judges including the CJ and its selection is done on the settled, non settled areas basis. Balochistan HC is run by 10 judges including the CJ that must keep a balance between Pashto speaking, Balochi-speaking and settlers (CJ Chaudhry was elevated to the bench in Balochistan).
Islamabad HC is managed by 6 judges including CJ and the selection procedure may be to accommodate personnel from Potohar region and some areas of KP close to Islamabad. Almost all judges appear to have joined higher judiciary from being practicing lawyers and some of them have given detailed resumes of their association with lucrative judicial matters before joining the bench or after.
Higher Judiciary In Pakistan
Higher judiciary in Pakistan had suffered under executive pressure but thanks to cases such as Al-Jehad Trust and Sindh High Court Bar Association cases that despite creation of a collegiate body under Article 175-A of the Constitution, it is now the prerogative of CJP to exercise decisive influence in selection of judges. Higher judiciary is now greatly at ease as it can now select people of excellent character, superior calibre and meritorious record having deep insight and profound knowledge.
Keeping in view the new found freedom widely exercised by higher judiciary it was expected that it would have shown marked improvement in terms of productive capacity, quality of judgments and personal conduct in comparison to the period under dictatorial and quasi-democratic regimes. It is however often felt that it has somehow not come up to expected public standards giving rise to contentious remarks about it and general discomfiture.
There are many reasons for disappointing performance of higher judiciary and the primary one could well be hidden in the method of selection of judges. Despite its freedom, higher judiciary still heavily relies on choosing judges from traditional sources such as chambers of judges of high courts or Supreme Court, firms of ‘eminent’ lawyers, former or current office bearers of provincial bar associations and, rather rarely, from lower judiciary. From amongst the sources of selection the pre-eminent source is usually cabals of lucrative law practices in big cities like Karachi, Lahore, Peshawar, Quetta and Islamabad. It is very rare that an ordinary but prodigal lawyer is taken on the bench.
Pakistan Judicial System Lacks
Another reason pertains to very profound judicial quote: ‘Quis custodiet ipsos custodes?’ (who will guard the guards?) and it is directly related to performance of judges. Pakistani judicial system lacks the vital institutions carrying out internal monitoring of higher judiciary. It is also bereft of sound public scrutiny of judicial process as labyrinthine process of law is often much above the understanding levels of a majority of our citizenry. Only the Supreme Judicial Council, a constitutional body which is composed of senior-most judges and headed by CJ can examine the capacity or conduct of a high court or Supreme Court judge.
Then there lurks the issue of evaluating judicial performance of higher judiciary as a national institution of consequence. The current judiciary does not appear to be satisfactorily allaying common man’s apprehension about dispensation of justice in Pakistan. Despite public pronouncements of judges the public is far from convinced about the sincerity of judges. Judges further dent the credibility of justice when they provide chance to young lawyers who are related to them to plead cases of their clients.
Winning of cases by most sought after lawyers is a matter that needs to be looked into because in such circumstances politicians and bureaucrats often bear the brunt of judges’ acerbic comments decrying them for nepotism. Higher judiciary needs to be very particular about this breach of fair conduct. Many judges have raised objections to exorbitant fees charged by sought after lawyers whose name and presence only guarantees success. The recent judgments of higher judiciary have been widely and critically commented upon to the extent that the SC had to clear the air through very unconventional speech. The Weekender