Judges as legislators

The judicial reasoning in Sindh High Court Bar Association vs. Federation of Pakistan (whereby the Supreme Court has struck down the Parliamentary Committee’s decision not to confirm certain nominations of the Judicial Commission) has multiple problems.

To start with it is disingenuous, for while interpreting provisions of the Constitution introduced through the 19th Amendment it disregards the fact that these recommendations were actually proposed by the Supreme Court itself through its interim order while hearing cases challenging the 18th Amendment. It seems logically inconsistent for it relies on flawed deductions, and the mechanics employed by the Constitution to give effect to principles are mistaken for principles themselves. The changes introduced to the Constitution by the latest amendments are underplayed and the court forces old wine into new bottles.

While expounding provisions of the Constitution to delineate the respective scope of authority of the Judicial Commission and the Parliamentary Committee, the court doesn’t rely on settled principles of textual interpretation. As a consequence, disparate treatment is meted out to the role and importance of the Judicial Commission and the Parliamentary Committee.

In defending the authority of the Judicial Commission (essentially run by the five senior most judges of the Supreme Court) the apex court doesn’t seem to have applied restraint and taken into account the age-old maxim that no one should be the judge in his own cause.

And while the court seems conscious of the principle of separation of powers and the limitation it applies to the scope of judicial authority, such consciousness does not shape the operative part of the ruling.

Let us recall that the Supreme Court opted to hear challenges against the 18th Amendment despite the constitutional prohibition that “no amendment of the Constitution shall be called in question in any Court on any ground whatsoever”. While the case remains pending, the Supreme Court, through an interim order, provided parliament a window of opportunity to re-amend the Constitution to the court’s liking. As this sword hung over the 18th Amendment, the parliament passed the 19th Amendment to appease the Supreme Court. Parliament abided by the court’s ‘recommendation’ that the Parliamentary Committee should give reasons if it doesn’t endorse the Judicial Commission’s advice, but it didn’t write in the Constitution that such reasons shall be justiciable as the court wanted. Through the Judicial Nominations Case the court has now had its way.

The interim ruling in the 18th Amendment case was not a marvel of jurisprudential merit. But those who followed the proceedings of the case feared that the dreaded adoption of the basic structure theory and striking down of a provision of the Constitution was imminent.

When the court found a pragmatic solution to avert such outcome, there was relief. One hoped that if parliament responded with maturity and addressed the concern that the turf of the apex court was being encroached, the court would also back off. By adopting the 19th Amendment, parliament rose up to the expectation. Unfortunately, the court has not backed off.

In striking down the Parliamentary Committee’s rejection of a few judicial nominations, the ruling states that as law doesn’t explicitly oust the court’s jurisdiction, it can question the merit of the Parliamentary Committee’s decision. This logic would be fine if it was uniformly applied. The court doesn’t state that accordingly the recommendations of the Judicial Commission are also subject to judicial review.

Further, we also know that the court doesn’t shy away from exercising authority over issues even where its jurisdiction has been explicitly ousted, such as in reviewing a constitutional amendment. (The only exception being the ouster clause within Pakistan Army Act, which is consistently upheld.)

The ruling in the Judicial Nominations case lacks rigour. First, its deductions do not flow logically. While allegiance to the principle of judicial independence is a cornerstone of our Constitution, why assume that should serving judges not have a veto over who adorns judicial robes judicial independence will be compromised?

What about all those countries that boast independent judiciaries with judges having absolutely no role to play in the appointment of future judges? Second, the ruling confuses principles enshrined in the Constitution with the mechanics adopted to realise them. Judicial independence can be secured through multiple ways.

Appointment of judges through a rigourous, consultative and transparent mechanism is imperative to safeguard such independence. But while discussing who should play the lead role in such process – members of the executive, judiciary or legislature – we are talking mechanics, not principles. And then the ruling doesn’t follow the established principles of textual interpretation and makes no attempt to give plain words their ordinary meaning. It approvingly refers to the Al Jihad case in which the Supreme Court declared that in the select context of seeking the chief justice’s views regarding the appointment of judges, the word “consultation” would mean “consent”.

The Al Jihad case was celebrated, not for its approach to constitutional interpretation, but as a mark of the Supreme Court’s desire to break from the past and stop functioning as an appendage to the executive. It wasn’t right but it became acceptable in such socio-political context. Today, there is no such context. The independence of the judiciary was secured through a mass national movement and the last thing our Supreme Court can be accused of is being an extension of the executive.

Why is it impossible to contemplate that the Constitution was amended to introduce bipartisan parliamentary oversight over crucial appointments such as those of judges and the election commissioner? What would be the point of making such drastic changes if the Judicial Commission and the Parliamentary Committee were merely meant to step into the erstwhile shoes of the chief justice and the federal government respectively, with the former having decisive control over who becomes a judge?

The court believes that the work of the Judicial Commission will be rendered ‘nugatory’ if the Parliamentary Committee has the right to question its recommendations. Can reasonable minds not reach different conclusions based on the same information?

The test prescribed by the Supreme Court is that it is illegal for the Parliamentary Committee to consider any information about judicial nominees that has been deliberated upon by the Judicial Commission. What independent stream of information does the Parliamentary Committee have for the consideration of which the Constitution specially created it?

In effect, each time the Parliamentary Committee disagrees with the Judicial Commission, it would have travelled beyond the zone of legality according to the Supreme Court test. Why have the Parliamentary Committee at all then? To discuss the antecedents of proposed judges, we are told, and nothing else. And please don’t think the court is encroaching upon the vast powers of the legislature. The eight member bipartisan parliamentary committee is actually a part of the executive according to this ruling.

The Supreme Court is a court of limited authority and incapable of producing elixir for all our national ills. So far it has been the khaki saviour instinct that has molested our Constitution and political process. Would it not be a shame if the apex court followed in the stead and allowed a do-good approach to interpret the Constitution?

Emphasising the doctrine of limited powers in the much celebrated PCO Judges Case of 2009, the Supreme Court held that, “neither the Supreme Court itself possesses any power to amend the Constitution, nor can it bestow any such power on any authority or any individual.” It is a settled principle of law that what cannot be done directly, cannot be done indirectly.

(Concluded)

We must exorcise our devils

I WRITE this one day before Zulfikar Ali Bhutto, elected prime minister of this luckless country, was murdered 32 years ago by an army usurper and his handmaiden judiciary, and two days before he, the beloved leader of millions of Pakistanis, was buried in the presence of seven or eight people, the rude charpoy on which his body lay for the funeral prayers so short that his feet were protruding a foot off it.

His wife and daughter were not allowed within hundreds of miles of the funeral, jailed as they were in the headquarters of the establishment, Rawalpindi; not a sparrow flew that day in Larkana. The military establishment under Zia had had its revenge: killing the very man who put salve on the deep wounds inflicted on the hapless nation, and upon the army rank and file, by unthinking and cruel and stupid generals led by a drunken sot.

And then some say his murder should not be revisited, yes that is the word I want, by our newly emboldened and muscular (the Almighty be praised) superior judiciary; trotting out mealy-mouthed reasons and technicalities and more mealy-mouthed reasons and technicalities. There are very many reasons to look at the disgraceful way in which ZAB was tried and then done to death.

The first, of course, is the shameful way in which his so-called ‘trial’ was held, first by denying him a court of first appeal by trying him in the Lahore High Court instead of in a sessions court. Secondly, by bringing him before a judge who was an avowed enemy: Maulvi Mushtaq, whose appalling behaviour towards ZAB during the trial is a horror story in itself. And thirdly, by the army usurper putting pressure on pliant (all of them from Punjab, please note) judges through the servile chief justice, Anwarul Haq as admitted by Nasim Hasan Shah, one of the hanging judges, and later the chief justice(!) of Pakistan. I ask you.

Indeed, by the dictator and his collaborators in the judiciary using every trick to get rid of those judges who were considered ‘unreliable’ (all non-Punjabis, please note again), and changing the make-up of the bench to facilitate their plan to hang Bhutto come what may, forced retirement of judges included.

Nor is this all. Noted lawyer Raza Kazim disclosed just the other day that Anwarul Haq, who headed the hanging bench, tricked Bhutto into stating that (unlike the Lahore High Court) he had faith in the Supreme Court which was hearing his appeal. The quid pro quo was that the death sentence imposed by the Lahore High Court would be commuted to life imprisonment by the Supreme Court. This trick was played on Bhutto through Mr Hamid Mehmood a great gentleman, who had grown up with Anwarul Haq, and who also knew and liked ZAB.

When Mr Mehmood visited Bhutto in Rawalpindi jail and made the proposition to him, ZAB asked him if he was sure this was not a trap being set by Anwarul Haq. Mehmood replied that he had known the chief justice since childhood and that he would not go back on his word. We all know what happened subsequently. Hamid Mehmood was a broken man after that and could never forgive himself for trusting Anwarul Haq. He died of a broken heart not long after. No, gentlemen, no, ZAB’s case must be revisited and if it opens other Pandora’s boxes so be it. We simply must exorcise our devils.

Maulana Fazlur Rehman is an unfathomable personality if he is anything: requesting the American ambassador (thank you, WikiLeaks) to push his candidacy for the premiership of this luckless country one day; the very next saying the Americans are the worst thing that ever happened to Pakistan, and the Taliban the very best; the very next offering to mediate between the Americans and the Taliban, but not in Pakistan (thank you again, WikiLeaks).

Let’s say it straight: why will their apologists not understand that the Taliban and their friends and associates whether they be called Al Qaeda or Hizbut Tahrir or Al-Muhajiroun or Afghan Taliban or Pakistani Taliban, and all other such, are all linked to one another, and are in the business of taking over the state of Pakistan, a first step to global jihad? And that they will kill and maim all who come in their way: innocent men and women and children; our army soldiers; our police, even their own apologists such as Maulana Fazlur Rehman simply because he too is a part of the organised state.

Why will the maulana, deft son of the greatly deft, and shall we say most innovative, politician Mufti Mahmood, not understand that he was targeted twice in as many days last week precisely because he is a part of the democratic system, by the very same terrorists he supports? Plainly said, anarchy is the aim of these murderers.

Nor is it only people like the maulana who refuse to smell the coffee, so does my friend Imran Khan. Nor do my friends in the afwaj-i-Pakistan, hung up as they are on being India-centric whatever the devil that means. Really, one despairs at the shallowness of the thinking that goes into their ‘strategic’ policies. Consider: the so-called and short-lived Kurram peace deal seemingly done, and now allowed to be undone to further the self-same agenda, taking with it many innocent lives so cruelly cut short by the terrorist murderers.

The denouement is at hand, however, and no matter what lies are told to the common people and more harebrained schemes thought out, this country is in for a very high jump indeed. Remember that the US presidential elections are to be held in 2012 with campaigning starting this autumn. Remember too that the Republicans, more hard-line than the democrats, will up the ante re: Afghanistan many notches. Think about it, gentlemen, and for God’s sake come to your senses.

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