The resignation of two judges from the Supreme Court may be considered to have precipitated a judicial crisis, and that too at a time when the judiciary is under as much pressure as ever before in its history, from the high-profile political cases before it.
Even as the crisis was brewing, the Supreme Court decided on the PTI’s symbol, which had been withdrawn from the PTI. As a result, though its putative chairman, Barrister Gohar Rehman, said that the PTI would contest, its candidates will be independents.
The PTI is attempting something very difficult. While the PTI has named its candidates, they will not receive the party symbol. Instead, they will contest as independents. If they win, they will not form a separate group in the House to which they are elected.
While they can form a separate group, as well as have a separate leader, they will not be bound by the disqualification clause of the Constitution, Article 63A. They will only be so bound if they join one of the parties recognised by the Election Commission of Pakistan.
One way of seeing the matter is to see it as one between pro– and anti-PTI judges. Another is to see it as one between the old order and the new. But does the judiciary increase its credibility by all this? It seems that the process will be a long one indeed
The judiciary does not have to deal with the consequences of that decision immediately, though it seems likely that after the elections, the fate of any PTI independents will form the subject of at least some litigation, and thus the judiciary will be free to deal with the crisis within its own ranks.
That crisis has flowed from the judiciary having made two claims which have been subjected to severe test in the recent past. First, that the judiciary is as neutral as the Constitution wants it to be. This has been subjected to stress by the Bandial Supreme Court, when the human rights jurisdiction of the Supreme Court was used to bring every matter it wanted before it. This might be seen as a continuation of the Iftikhar Chaudhry Supreme Court, but what distinguished it was the perception that such jurisdiction was being exercised to favour the PTI.
The second claim was that the judiciary had its own accountability mechanism, and thus was above other accountability mechanisms. This is a claim the judiciary shares with the military, but perhaps because its mechanism is constitutionally prescribed in the shape of the Supreme Judicial Council, it is not the same as that of the armed forces. The SJC consists of members of the judiciary, and military mechanisms, which consist of courts martial of the individual services, are also manned by members of the military. Politicians, on the other hand, were subject to NAB scrutiny, and thus were made subject to members of the permanent bureaucracy, not their peers.
This claim did not sit well with PTI opponents, especially when they saw that judges were protected from accountability for their judgements, which were pro-PTI. Mr Justice Naqvi’s case would have struck both chords, for he was considered one of the pro-PTI judges, and was also the subject of a complaint relating to possession of property beyond his means before the SJC. First, Mr Justice Naqvi refused the first show cause notice, which led to the issue of a second. Then he resigned, apparently to replicate Richard Nixon’s position. Nixon was US President, but had had articles of impeachment moved against him by the House of Representatives over the Watergate scandal. The Senate then had a Democrat majority, and his impeachment was virtually a certainty. Nixon resigned in 1974, thereby avoiding impeachment, and thus retaining the pension and facilities allowed to an ex-President.
However, Chief Justice Isa said that the SJC proceedings against Mr Justice Naqvi would not abate, because the show cause notice had been served. A complaint has also been moved against Mr Justice Ijaz, but it does not involve monetary corruption, but involves an allegation that he has violated the Judicial Code of Conduct by his decision in certain cases. This involves a nice point, for it is obviously against the Code of Conduct for a judge to let himself be influenced by external factors, but at the same time, it would be manifestly wrong to claim that judges be answerable for their decisions. But what if the decision was based on political loyalty rather than the law? Can such a decision be dealt with by the SJC?
The SJC mechanism is criticized on the ground that it not only involves judges judging other judges, but the accused remain on the bench. In other trials, including court martials, the accused are sequestered during trial from their duties, being placed under arrest.
It should be noted that it has been substituted for the British and American procedure of impeachment, which is done by the legislature, not by any judicial body. Impeachment means the drawing up of charges, the following of a trial procedure, complete with prosecution and defence and production of witnesses. While none of the four Presidents impeached have been removed from office, eight of 15 judges have. The only judicial intervention is that the Chief Justice of the United States presides over the Senate while it is hearing the case, with the Senators sitting as jurors, two-thirds of whom must vote for removal. The UK procedure of impeachment was last exercised in 1806, and is now considered obsolete. It involved trial by both Houses of Parliament.
It should be noted that politicians complain about accountability being directed at them. However, it seems what they mean is an absence of accountability. When Imran Khan was removed by a no-confidence motion, it was not because he was corrupt, but just because a majority of members did not want him to continue in office. There is no concept for politicians of what is enjoyed by judges and government servants: continuing in office during good behaviour, up to the age of retirement. The judiciary also has the concept of ‘legitimate expectancy’, which means that a judge selected for a high court is considered automatically fit to be Chief Justice of Pakistan, because if the dates are right, he will be elevated to the Supreme Court, become most senior, and thus Chief Justice.
Mr Justice Ejaz has thus foregone appointment as Chief Justice. There has been no upsetting of the applecart, for the judge who will take office in his stead, Mr Justice Mansoor Ali Shah, would have succeeded to the office anyhow. There are complications for the Lahore High Court, however. The previous Chief Justice of Pakistan, Mr Justice Umar Ata Bandial, created a vacancy by retiring, and now Mr Justice Ejaz and Mr Justice Naqvi, have also created vacancies.
All three were elevated from the Lahore High Court, thus that high court should provide three judges. The Chief Justice of the LHC, Mr Justice Ameer Bhatti, has a legitimate expectancy of elevation, but will lose that if allowed to retire on March 7. As he has had his repute somewhat under a cloud, it is now a countdown, because Mr Justice Isa controls the timing of elevations.. It should not be forgotten that Mr Justice Bhatti was a member of the SJC which heard Mr Justice Naqvi’s case, and was one of the two members, along with Mr Justice Ijaz, he did not ask to recuse themselves because of ‘extreme prejudice.’
One way of seeing the matter is to see it as one between pro– and anti-PTI judges. Another is to see it as one between the old order and the new. But does the judiciary increase its credibility by all this? It seems that the process will be a long one indeed.
