JURIST Guest Columnist Moeen Cheema, professor of Law & Policy at the Lahore University of Management Sciences in Lahore, Pakistan, says that following the removal of Pakistan Chief Justice Iftikhar Chaudhry concrete constitutional reforms are needed to guarantee the independence of the Pakistani judiciary …

The protest movement spontaneously initiated by the overwhelming majority of lawyers in Pakistan in the wake of the suspension of Chief Justice Iftikhar Chaudhry is gathering momentum. In the aftermath of the government’s attempts to gag the media and the naked aggression of the police against protest rallies, the protesters’ resolve has hardened and demands are being made for constitutional reform and a return to democratic governance. This is therefore a good time to critically analyze what's behind the popular slogans of the movement and identify concrete structural reforms that may lead towards the entrenchment of constitutionalism in Pakistan.

Tyranny of the Executive

It is a common feature of all modern systems of government that too much power tends to accumulate in the executive. In the United Kingdom’s parliamentary system of government, the legislature has progressively become subservient to the will of the dominant party, the backbenchers rarely diverge from the party lines dictated by the party whips, and the scrutiny of the executive has been undermined by the inability of the select committees or the opposition to hold ministers to account. The Prime Minister’s office has evolved in such a way that he/she now leads the party into elections, can claim to be at least partly responsible for the mandate given by public, and hence dominates the cabinet as well his/her party after winning the general elections.

In the United States, the last century has been characterized by Presidential aggrandizement. The President’s office has claimed greater power in each war, real or imagined, or other national crisis and has been shown considerable deference by the legislature and the courts. The Bush presidency is a prime example of this phenomenon. Although Congress is now under Democratic control, is beginning to challenge presidential action and is playing a much greater role in the scrutiny of the executive, the Presidency still enjoys unprecedented power. Lord Hailsham’s characterization of the executive in the UK as an ‘elective dictatorship’ is an equally apt description of the US Presidency.

In this context there is broad agreement on one point: in order to ensure the ‘rule of law’ (however that ideal notion is defined, distinguishable from the rule of an individual, a limited class, a group or even a coalition of dominant groups and interests) the state must possess an independent judiciary. Only an independent and impartial judiciary can offer some challenge to an executive determined to expand its sphere of powers, occasionally hold it legally accountable and thereby force the executive to take full political responsibility for some of its actions. The judiciary is, by default, the only institution capable of playing this role: the alternatives are political accountability by the opposition, the civil society and/or the media. Further, the judiciary is not prone to aggrandizement in the same way that the executive or a legislature dominated by the executive is.

Rule by Law

For more than half of Pakistan’s existence, the government has directly been in the hands of military dictators, aided and abetted by handpicked politicians enjoying minimal popular support. Even in more democratic times, the executive has remained dictatorial since the major political parties have historically been the feudal domains of individuals or families. The military establishment, the civil bureaucracy, law enforcement and national security agencies have remained impervious from accountability whether under military or civilian rule.

The rule of law is an ideal that we may speak of, but cannot hope to attain in the near future. The least we may ask for, given our constitutional history, is that we may be ruled by law: that the actions of the executive should be in accordance with some pre-determined rule (even if such a rule is a legacy of our colonial past or has been laid down by the Ordinances and Orders of a military regime – the bulk of the law in this country can be traced to one or the other of these sources). In simple words, we only seek protection from purely arbitrary, whimsical and nakedly self-serving action by the executive.

It is in this context that the suspension of the Chief Justice – who was rendered ‘non-functional’ to be precise – is so egregious. This is not the first time that a Supreme Court judge, or even a Chief Justice, has been disposed off, but on previous occasions patently legal means were resorted to, such as asking judges to take oaths of allegiance under a PCO (Provisional Constitutional Order) or reductions in retirement ages, etc. The fact that the executive did not even deem it necessary to even attempt to justify its actions in accordance with the Constitution (which has been mutilated on several occasions since 1973) is offensive: it snatched away from our eyes the last veneer of rule by law. Subsequent feeble attempts by the executive to justify this action, (i) by proffering a strained interpretation of Article 180 which provides for the appointment of an acting Chief Justice when the Chief Justice is ‘absent or is unable to perform the functions of his office due to any other cause’; (ii) a resort to a 1975 statute, a remnant of the military regime that ended with the dismemberment of Pakistan in 1971, to send the Chief Justice on ‘forced leave’; and (iii) pleas that the matter be left to the Supreme Judicial Council, whose decision the government now promises to abide by, have thus far failed to put us back to sleep.

Rule of Law and the Independence of the Judiciary

If this movement continues to gather momentum and garners the support of civil society and the intelligentsia, other than the lawyers who are already on the streets, then we shall create the possibility of building constitutional rule from the ground up. It shall then not be sufficient to settle upon the nominal re-instatement of the Chief Justice. We should instead demand sufficient constitutional reform to strengthen the independence of the judiciary. Although, there shall be no guarantees that extra-constitutional measures shall not be resorted to at the pretext of a false emergency at any time in the future, such constitutional reform should seek to ensure that so long as there is rule by law the judiciary may remain sufficiently independent to keep the executive under some check.

Such constitutional reform should focus on three aspects. First, we should seek to establish mechanisms whereby competent and politically impartial judges may be appointed to the superior judiciary. In this regard, we may look to the UK, which recently replaced its patronage-based appointments by the executive with an independent commission responsible for recommending qualified individuals for judicial appointments. The US model of vetting judicial appointments by the Senate may be even more appropriate, since approval by a three-fourths majority in the Senate would ensure that judicial appointees have the approval of all the major political parties as well as at least three of the four federating units of Pakistan. The government should also be mandated to fill all vacancies within a short period. Second, the judges should be paid adequate salaries, and be given sufficient perks and protocol, during and after the end of their t
erms of appointment, to minimize the incentives for corruption. All other means whereby the judiciary may be influenced by the executive, such as through ad hoc re-appointment of retired judges, should be prohibited. Lastly, and minimally, the executive cannot be allowed to have any role in the removal, transfer, or suspension (whether by rendering non-function or sending on forced leave) of a sitting judge. The removal of a judge may only be for cause (gross misconduct) after a judgment of his/her peers. The executive should have no say in initiating or advocating such proceedings. Ideally, such proceedings may only be initiated after impeachment by a similar majority in the Senate which would have earlier approved such an appointment.

Moeen Cheema is an Assistant Professor of Law & Policy at the Lahore University of Management Sciences in Lahore, Pakistan
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