AT PENPOINT
Why are there constant references to Mr Justice Sajjad Ali Shah in the current judicial crisis? Mr Justice Shah had been removed by judicial authority as Chief Justice of Pakistan in December 1997, after having been appointed in June 1994. He retired as a judge of the Supreme Court in March 1998.
His appointment as CJP had violated what was then an informal rule of seniority. This has now been formalized as ‘legitimate expectancy’, and while there are no violations in the appointment of chief justices, either of Pakistan or of the high courts, the principle has been violated in elevations of junior judges of high courts to the Supreme Court over the heads of their seniors. The judge most affected by his appointment, Mr Justice Saad Saud Jan, had retired by the time Mr Justice Shah was removed, and it was Mr Justice Ajmal Mian who became CJP in his stead.
M Justice Bandial is in no danger of removal as CJP, for he has been Chief Justice of the Lahore High Court and CJP strictly in accordance with seniority. Though it does not seem germane, Mr Justice Bandial was elevated to the Lahore High Court from the Bar, while Mr Justice Shah was elevated to the Sindh High Court from the Bench. It was as a district and sessions judge that he served as Registrar of the Supreme Court, being the only person to have served as both its Registrar and its Chief Justice.
However, perhaps the reason why Mr Justice Bandial is compared to Mr Justice Shah is that both appear to have taken a view of their office different from their brother judges. Their brother judges take the view that judge-ship is the pinnacle of achievement, and becoming Chief Justice is nothing more than an administrative arrangement. Mr Justice Shah and Mr Justice Bandial, and presumably the various CJs between them, seem to have taken the view that they were head of the judiciary. Their brother judges seem to take the view that the Supreme Court as a whole has a will of its own, and the CJP should express this.
Though the strength of the Supreme Court is fixed at 17, it is represented fully by a two-member bench, from whose decision there is no appeal. One major difference between the Pakistani and US Supreme Courts is that the US Supreme Court always sis as a Full Court, the Pakistani Court almost never. Certainly, there have been almost routine requests made for Full Courts to be constituted, and almost routine refusals. This makes a certain kind of sense, for it means that the Supreme Court, which already hears a large backlog of cases, can decide eight times as many cases, sitting in two-member benches, than if it heard all cases as a Full Court. The American solution has been to vastly restrict the number of cases it hears by very strict standards of maintainability.
Thus the US Chief Justice has no power to form benches. All he does is assign the writing of judgements to various judges, just as the CJP does. Being able to form benches is a power that places the CJP over his colleagues. The US CJ is merely just one judge amongst many, and for long has been part of a minority. In other words, his decision need not prevail. Because the CJP can choose his colleagues on a bench, he generally gets the decision he himself supports.
The formation of benches was also an issue with Mr Justice Shah and his colleagues. Another aspect that has not been raised is the role of the Chief Justice and of the Supreme Court in the appointments to the high courts and the elevations to the Supreme Court. The US CJ has no role in this whatsoever (unless he is consulted by the President, which would be an impropriety). The appointments (there are no elevations, though examples abound of the holder of a judgeship being appointed to a higher court). Appointments are made to federal judgeships by the Senate, after public confirmation hearings, which are often scandalous.
While the Al-Jihad Trust case served to remove the Chief Justice and to make the principle of legitimate expectancy explicit, it did not resolve the issue of constituting benches. Perhaps as a result, the Court today cannot really move forward, and take the nation with it, as is required.
One advantage of this is that, while the nominee and his family are emotionally traumatized, perhaps for life, there is little chance of the newly minted judge being blackmailed by anyone, as the establishment is said to have done at least with the lower judiciary. As the late Judge Arshad Malik indicated, members of the lower judiciary are made malleable by guilty secrets.
Mr Justice Shah’s power of sending various judges to hear cases at various sub-registries was meant to prevent judges coming together to exert the power of the Court, but a judgement by a bench at Peshawar served to remove Mr Justice Shah as CJP.
He did not take the step that Mr Justice Bandial has done, which is to overturn the judgement by another judgement by a larger bench, but by getting the Registrar to issue a circular that the judgement is to be ignored. The judgement had required a freeze on all suo motu proceedings. That would have included the Punjab and KP Assemblies’ election case. A peculiar precedent has been created: that the Registrar may reverse any judgement by the Court. That makes the Registrarship of a high court very lucrative. Just think of all those refused bail in murder cases: how much would they pay to get the Registrar to issue a circular saying that the refusal had no effect. That would mean bail had been granted, and the accused could snap his fingers at the court, the police and the entire justice system on his way out.
The Registrar has been recalled by the federal government, and the decision has been overturned by a larger bench, which seems to have been assembled expressly for this purpose.
That particular Pandora’s Box has now been opened, and the CJP might not be able to close it.
However, it should be clear that the issue at stake is no longer whether the PTI gets elections, or whether the ECP is allowed to change the date. It is whether the CJP can take suo motu notice alone, or whether he has to consult any or all of his brother judges.
The issue of politics might seem central, but it is not. The legal profession is deeply concerned with politics. It is perhaps a coincidence that both Allama Iqbal and the Quaid-e-Azam for Pakistan, and Gandhi, Nehru and Sardar Vallabhai Patel for India, were all barristers, as was Liaquat Ali Khan. It is thus unnatural to ask judges to be apolitical. It might be possible for those elevated from the subordinate judiciary, because they are not only judges but government servants, and thus doubly neutral. But for those elevated from the Bar, judicial neutrality has to be learned.
It is thus natural for judges to favour a political party. What becomes reprehensible is for judges to favour that party in their judgements. Even more problematic is judges who use administrative positions to favour one side or the other. Mr Justice Shah avoided that charge at least, for whereas he had been made CJP by the Benazir government, when it was dismissed under Article 58 (2b), he chaired the Bench that upheld that decision. Mr Justice Bandial has not.
Whenever a matter reaches the Supreme Court, it is important, whether it be the holding of elections in two provinces, affecting 145 million people, or a single individual’s bail application in a murder case, affecting his life. However, it seems that these issues, while weighty in themselves, must await the Supreme Court’s sorting itself out. Without that, its ability to do justice will be compromised.
While the Al-Jihad Trust case served to remove the Chief Justice and to make the principle of legitimate expectancy explicit, it did not resolve the issue of constituting benches. Perhaps as a result, the Court today cannot really move forward, and take the nation with it, as is required.
