Syed Ahmad Hassan Shah
Social attitudes, on the one hand, and the legal permissibility of social behavior, on the other, often present conflicts that are difficult to reconcile. The invasive reach of electronic media as well as the proliferation of social media highlight contradictions in society hithertofore hidden from public view – alas, adding to our collective agony.
The constitution mandates that an elected parliament should work to bridge this gap; a selected civil bureaucracy should ensure due delivery of services to citizens; and the superior courts should intervene and correct deviant behavior – all for due legal order.
That the people’s representatives and the bureaucracy have failed the nation is a widespread impression. But, since about a decade ago, when in full public view the then pater familia appeared to unshackle the judiciary from dictatorial influence, expectations rose that perhaps the judiciary could curtail socio-political decay. However, controversies recurrently skirt the judiciary – at times, regrettably, from within its cadre. Budgetary constraints, inadequate infrastructure/resources, overflown dockets, inconsistent case management systems/styles, capacity of judges and lawyers, the apparent vulnerability to individual preferences of the pater familia, controversial appointments and lack of accountability of judges, perception of exceeding the constitutional mandate, are perhaps more popular themes that cause public distrust in the justice system. Most of these, however, may well be beyond the administrative control of the judiciary, but what about core concerns with respect to appointments, capacity and accountability of judges?
Re appointment: until 1996 (the Al-Jehad Trust case), the executive branch had a more decisive role in appointing superior court judges. Since Al-Jehad, as consultation with the chief justices concerned remained no more ritualistic, instead became purposeful and meaningful, the decisive role began to rest with the chief justice concerned. However, in 2010, the 18th Amendment sought to alter the paradigm. It entrusted responsibility, in the first instance, with a Judicial Commission, which after considering candidates (likely on the basis of names proposed by the respective chief justices) were to nominate candidates to a parliamentary committee for confirmation (by a majority vote). But, this ostensible attempt to wrest power from the judiciary was scuttled when a full court of the apex court entertained a lawyer’s challenge on the touchstone of “independence of judiciary”. Soon thereafter, the parliament reconsidered composition of the Judicial Commission. The 19th Amendment restored decisive vote with the representatives of the judiciary. But, the story does not end here. When the parliamentary committee did not confirm nominations by the Judicial Commission, the Supreme Court again intervened – this time holding that decisions of the parliamentary committee were justiciable. Since then, the parliamentary committee has been conspicuously inactive.
For the record then, while we, the people, may solely be blamed for the leaders we choose – who are widely responsible for breaching the sacred trust reposed in them by the constitution, we cannot at all be held responsible for selecting judges, who are the chosen protectors of the conscience of the courts. Since a majority of judges continues to determine the ‘professional competence and antecedents’ of a candidate suitable for inclusion in their cadre, it is for them to ascertain and put in place transparent criteria ensuring the consequential aspects of capacity and accountability of judges.
Re capacity: there is largely on-the-job training as younger judges are readily ‘groomed’ by their senior colleagues. The idyllic scenario endorsed by the apex court is that the ‘law is written on the sleeves of the judges and they are supposed to know each and every law by heart’. But, in reality, it may not be quite so. If one were to look at the individual experiences of the honorable justices before their elevation, it would appear that a majority had rather focused areas of practice but they developed a skillset more amenable to satisfy the traditionally idyllic diktat of wearing the law on their sleeves.
There appears limited recognition that the nature of legal practice has undergone drastic change. The proverbial criminal attorney or the shrewd civil lawyer or the daunting constitutional lawyer or the savvy corporate lawyer, by him/herself does not represent the spectrum of legal practice today. It took decades before corporate lawyers were considered for elevation and, hopefully, the appointment criteria will take due account of the changed trends or requirements for adjudicating cases.
For instance, the number of pending cases from various regulatory bodies (energy, telecom, power, securities, anti-trust, IP, anti-dumping, drugs and the like) have seen phenomenal increase, and decisions in such cases do not always further the development of the law in these specialist areas.
Last but not the least: accountability. The Supreme Judicial Council, the exclusive constitutional body continues to court more controversy than it should. It’s image will only improve when there is greater clarity on its functioning. It should under no circumstances appear to be a body ‘protective’ of judges or being played by ‘ulterior considerations’. Not every time a charge is brought with respect to a judge must it mean – or be made to look like – an attack on the judiciary. We can and must do better than that.
While politicians and bureaucrats are taken to task for their conduct or the lack of it, judges remain immune – for the stated sake of retaining the dignity of the judiciary. Why is shaming of parliamentarians and bureaucrats and the resulting scandalizing of the other two pillars of the state acceptable? While a politician or a bureaucrat will go to jail for his follies, a judge will resign and remain absolved. Is there a need for recalibration of the scales of justice?
Judges are not only the masters of the court’s destiny, they also shape a nation’s values. As judicial
interventions increasingly become a subject of public debate or comment, both within and outside the country, we can only hope that the rightful will be done and that judicial conscience will meet the
highest standards. As Aristotle said: “Plato is dear to me, but dearer still is the truth”.