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Judicial space

It was reported last week that a move is afoot to transfer a judge from the Lahore High Court to the Islamabad High Court to be subsequently appointed as chief justice IHC after the present incumbent retires, instead of Justice Athar Minallah who, after removal of Justice Shaukat Siddiqui, is now the senior puisne judge.

The report could be discounted, except that now the Islamabad Bar Council and the Islamabad High Court Bar Association have lent it credence by passing resolutions imploring the Judicial Commission not to appoint another high court’s judge as the IHC CJ.

The issues involved here are threefold. First and foremost, how is the independence of the judiciary to be protected and preserved and whether independence is limited to independence from the executive or does it also have a vertical dimension ie judges are to be independent of their peers as well. Second, whether high courts are subordinate to the Supreme Court as a judicial matter (ie the SC sits in judgment over high court judgments) or are high courts subservient to the SC just as subordinate courts are subservient to high courts in terms of Article 203 of the constitution.

And three, if the principles of seniority and of legitimate expectancy of the senior-most judge to be considered for appointment as chief justice were entrenched by the SC at a time when the executive had a key role in judicial appointments (prior to the 18th Amendment) have these principles lost their weight and efficacy merely because judicial appointments now fall within the judiciary’s exclusive domain? In other words, is one set of principles applicable to discretionary decisions when the decision-makers are members of the executive versus when they are members of thejudiciary?

We already know our history. When dictators usurped power and violated the constitution, they needed pliant judges to justify such actions on legal grounds. Once in power, dictators needed judges of choice to continue to procure decisions of their choice. Thus emerged the tradition of manipulating judicial appointments. Learning from dictators, our democrats followed suit. They too wished for favourable decisions apart from obliging friends and cronies by appointing them to high judicial office. The practice continued till the mid-90s.

Independence exuberating judges could be transferred from one high court to another (or to the Federal Shariat Court). A senior judge could be punished by not appointing him chief justice of a high court and instead an SC judge could be sent to function as acting CJ. The seniority principle could be disregarded while appointing the CJP as well. This continued till the Al-Jihad case when the SC put an end to them by declaring that in making judicial appointments the requirement to ‘consult’ with chief justices would be akin to seeking their consent and the principle of seniority would apply strictly.

Ironically, a CJP appointed while bypassing three senior judges had rendered Al-Jihad. The anomaly was finally corrected (after a bizarre sequence of events to be left for another time) in the Malik Asad Ali case when Justice Sajjad Ali Shah was removed as CJP and Justice Ajmal Mian (as senior-most judge) appointed instead. Notwithstanding circumstances that provoked the judgments, the principles laid down enhanced judicial independence and protection against interference by the executive.

After Musharraf’s interregnum, parliament finally woke up to the need to do the right thing. The 18th Amendment incorporated the principle of seniority within the text of the constitution (which now states that the senior-most judge is to be appointed CJP) and prescribed a transparent process for appointment of judges involving a judicial commission and a parliamentary committee. The idea was that there would be an open and transparent consultative process involving parliament and the judiciary. However, things didn’t pan out as


By threatening to strike down the 18th Amendment, the Iftikhar Chaudhry-led-SC coerced parliament into ceding more power to judges. Parliament obliged by passing the 19th Amendment. Subsequently, while exercising judicial power, the SC set aside the Parliamentary Committee’s decisions where they disagreed with or questioned the Judicial Commission’s decisions. This vested in SC judges (who control the Judicial Commission) unquestioned and exclusive control over judicial appointments.

While abhorring the threat of transfer of a judge from one high court to another under Article 100 of the constitution, the Al-Jihad case ruled that, “the power of transfer cannot be pressed into service for the purpose of inflicting punishment on a judge or for any other extraneous consideration” and further that, “the question, whether a transfer is for a public interest is justiciable even at the behest of a lawyer.”

The Al-Jihad case, while emphasising the principle of seniority and legitimate expectancy of the senior-most judge to be appointed chief justice, explained that only the physical inability of a judge to take on the duties of the chief justice or his unwillingness to do so would be valid reasons for not appointing the senior-most judge as CJ. It held that the practice of disregarding legitimate expectation “causes heart burning among judges of the high court concerned, which is not conducive for maintaining congenial working relation”.

The Malik Asad Ali case declared that, “Invalidity and unconstitutionality of the appointment of a judge of a superior court are outside thepurview of the enquiry under Art. 209 of the constitution but such appointment is open to be challenged before the high court under Art 199 of theconstitution.”

The principle to be extrapolated from the Malik Asad Ali case is that administrative decisions of judges are not immune from judicial review and that the principles of fairness, reasonableness and transparency that apply to executive decisions must apply to the Judicial Commission’s decisions as well. Judges can’t preach one thing while exercising judicial power and practice another while making administrative decisions themselves, including those regarding the appointment and elevation of judges.

The constitution declares the SC’s decisions binding on all courts including high courts. But high courts aren’t placed under the SC’s control. As constitutional courts, it is high courts that are vested with supervisory control over subordinate courts, which makes eminent sense in our federal structure. But this structure is under strain since Iftikhar Chaudhry’s time by virtue of powers exercised by the Judicial Commission, by the Supreme Judicial Council, by the CJP as head of the National Judicial Policy Making Committee, and under Article 184(3).

If the practice of the SC not opining on a matter pending adjudication before a high court (to have the benefit of high court’s reasoning before deciding the matter finally) is no longer observed consistently, high court decisions then may be seen by cynics as influenced by the SC’s observations. SC directions that a certain high court bench hear a certain case are also construable as encroaching on the authority of a high court’s CJ to constitute benches.

The SC has directed accountability courts to report directly to the SC, even though Article 203 unequivocally places them under high court supervision and control. The SC passing strictures against high court judges and judgments is also a new normal. Together these developments are chipping away at the vertical independence of the judiciary. In a three-tier adjudicatory system, the right to appeal is a fundamental right being part of the right to fair trial. If subordinate courts were to merely predict what outcome the SC fancies most and act accordingly, due process would lose its meaning.

It is in this backdrop that the decision regarding the IHC CJ’s appointment is critical. The previous senior puisne judge, Justice Siddiqui, has been removed by the SJC for misconduct in proceedings triggered by his claim that a security institution was meddling in the affairs of the IHC (in the backdrop of Election 2018 and Nawaz Sharif’s appeal against the NAB conviction pending before the IHC). The present senior puisne judge headed the bench that suspended Sharif’s conviction sentence.

The IHC has emerged as a credible constitutional court comprising judges of integrity who sit with an open mind as they adjudicate matters in accordance with the law. Appointing a judge from another high court as CJ may hurt the legitimate expectation of all of them to be considered for higher office in due course. To invoke the Al Jihad judgment, it may cause heartburn and attract criticism. Most importantly, it may hurt public faith in the ability of, and space available to, judges to decide matters.

Babar Sattar, "Judicial space," The news. 2018-10-20.
Keywords: Law and Humanities , Judicial process , Judicial appointments , Judicial independence , Public interest , Decision making , Judicial council , Supreme court , Accountability Courts , Chief justice Saqib Nisar , NAB , IHC