Judicial competence

Daily: Daily Times
Date: 01.02.18

On April 20, 2017, when the Panama case judgement was issued with one of the two
dissenting remarks written by Justice Asif Saeed Khosa who borrowed a quote from The
Godfather, “Behind every great fortune, there is a crime”, the supporters of the judgment
cited the remarks-making practice prevalent in the Supreme Court (SC) of the United States
(US). That is, in the US, a judge can append remarks of his liking and hence is the
justification for its permissibility in Pakistan.

Perhaps, in line with the same argument, on January 22, 2018, while speaking to a
delegation of the Parliamentary Reporters Association, Prime Minister (PM) Shahid Khaqan
Abbasi called for the scrutiny of judges prior to their appointments, as is the case in the US.
PM Khaqan Abbasi precisely said, “People should know who the judges are, as they have
to decide matters of life and death, matters worth billions of rupees, and make historic
judgements.”

PM Khaqan Abbasi has uttered the right words for two reasons. The first reason is that in
the process of dispensation of justice, the bar and the bench are not two parties to decide
between them who should be a judge and who should not be. Instead, there is a third party
as well which has the highest stake in the judicial system formed through the parliament.
The third party is the people of Pakistan.

If examples of judicial practices were imported from the US, other practices established in
the US also deserve to be brought in. For instance, the principle of sovereignty stated in
the preamble of the US Constitution says: “We the people …do ordain and establish this
constitution for United States of America.” Here, the power underlying “the people”
(expressed in the lower house of the US) is stronger than the power underlying any other
state institutions deriving their status and role from the constitution. The SC in the US is
given only that much operational space which is ordained by the people, and not which is
hogged by the SC. The point is simple: whereas the constitution mandated Justice Asif
Saeed Khosa to adjudicate on a matter, the constitution did not mandate him to ridicule
voters – “the people” – by issuing such a comment against their representative. Justice Asif
Saeed Khosa could punish a culprit but he could not deride the culprit. His remarks have
singlehandedly vitiated the socio-political atmosphere in the country.

The second reason is that the system of selection of civil servants takes place through the
FPSC and the whole process is open to public scrutiny: Posts are advertised and the
selection is done on a publicly declared merit. Judges also serve the public; however, the
system of selection of higher judiciary is not open to public scrutiny, and this is where the
rub lies.  

On December 16, 2017, while addressing a seminar on “Seeking Justice, Challenges and
their Solution” organized by the Pakistan Bar Council (PBC) at a hotel in Lahore, Chief
Justice of the SC Justice Saqib Nisar said: “The elevation and confirmation of high court
judges is done on the basis of their integrity, knowledge of law and conduct. The bar is also
consulted in the process, but no appointment is made to please someone.” However, this is
not the case practically.

It is known that for a high court, lawyers are recommended by established law houses, and
the matter remains sequestered between a selecting body and the law houses controlling
more space of influence. A level playing field is not provided to all lawyers. For instance,
about the incumbent Chief Justice of Lahore High Court (LHC), Justice Mansoor Ali Shah,
the avowed statement is that “he joined private practice as a founding partner of Afridi,
Shah & Minallah, and was involved in the Lawyers’ Movement of 2007 seeking restoration
of the judiciary. He was elevated as a judge of the Lahore High Court in 2009, and was
appointed Chief Justice on 27 June 2016.” This part of the available information indicates
that Justice Mansoor Ali Shah’s participation in the Lawyers’ Movement must have played a
role in his selection for the position of a judge. As the Chief Justice of LHC, Justice Mansoor
Ali Shah is known for being impulsive and revengeful. The litigants bear the brunt.
Reminiscent of Advocate Naeeem Bokhari’s letter written (in February 2007) to the then
Chief Justice of the SC Justice Iftikhar Muhammad Chaudhry, Justice Mansoor Ali Shah
writes on the order sheet the points never argued by lawyers in a hearing before him. To
this malpractice, lawyers observe silence but the litigants get disconcerted with the
judiciary. After his elevation, what shape the SC is going to attain is imaginable. This is
exactly why parliamentary oversight in the selection of judges is vital.

On January 24, 2018, Chairman Senate Mian Raza Rabbani met Chief Justice of the SC
Justice Saqib Nisar and discussed the role of parliamentary committee constituted under
Article 175 of the 1973 Constitution for the appointment of judges in superior courts, for
judicial reforms. This is a positive sign, as several complaints have knocked at his door.
The people demand that the judiciary should be not excluded from beginning the reform
process from the top.  

In his public speeches, Justice Saqib Nisar is found quoting the example of the dispute
between Al Gore and George Bush on the presidential election in 2000. The case, which
was argued and decided in December 2000, tested the mettle of the SC headed by Justice
William Rehnquist. His curriculum vitae indicates that during his tenure in office (from 1986
to 2005), he authored five books which were available to American people for fathoming the
profundity of his judicial cognition and the pinnacle of his intellectual flight. Contrarily,
neither a book nor a research article is claimed (or available publicly) to have been written
by either Justice Mansoor Ali Shah or Justice Saqib Nisar.

In short, judicial reforms are required and these should begin from the top of the judiciary.
The people have all rights to know the real background, cognitive depth, intellectual flight
and the consequent judicial competence of the judges serving them especially in the higher
judiciary.

Back to columns in 2018