The judiciary is free from the shackles of the executive, thanks to the 19th Constitutional Amendment, robust jurisprudence, powerful bars, civil society, competitive politics, and a watchful media. Constitutionally, the judiciary in Pakistan is completely self-regulated. It dominates the process of the appointment as well as removal of judges, unlike many other common-law countries, including the UK, the USA and India, where parliament or Congress retains the power of impeaching judges. Some of the actions by the Supreme Court lead one to wonder if it is using its powers judiciously
One expects that the SC would act as a standard setter for other institutions of the country. One is worried therefore when the SC is accused of acting arbitrarily or out of favouritism. The accusations do not come from politicians or media alone, but from the legal community itself. The charges relate mostly to the raising of junior judges to the SC, formation of benches, and the way suo motu actions are taken. It is claimed that no well thought out rules have been formulated to guide decisions on these matters.
Last year there were widespread protests by lawyers when two junior judges were elevated to the SC. It was pointed out by critics that bypassing a senior judge in favour of a junior one is tantamount to displaying a vote of no-confidence in his competence or character, or both. And he is condemned unheard, which is also a violation of the due process of law.
Once again five junior judges from the High Courts have been nominated as SC members without defining the required criteria. This has led to complaints about disregard for merit. It is also being suggested that likes and dislikes play a role in setting up the benches. As senior lawyer Hamid Khan puts it, ‘favourite’ judges were being picked for the elevation to the Supreme Court against the seniority principle. Khan alleged that the senior-most judges of the Sindh High Court, including its chief justice himself, were being ignored for “not being in the good books.” According to Mr Justice Faez Isa, the nomination for elevation to SC is being done in a very questionable manner. Decisions are being taken by the CJ arbitrarily and the kind of power exercised by him is not permitted by the Constitution.
The way the SC is acting would lead many to agree with PPP leader Fahatullah Babar to ask Parliament to limit the SC’s powers in the appointment and promotion of judges through Article 191 of the Constitution.
