How the Legal Establishment is Undermining Judicial Independence
By Arsalan Khan
When lawyers took to the streets in defiance of a brutal and illegal military regime in 2007, they became the champions of our deep and long held desire for democracy and a fair judicial system. It is then tragic that some of the very people that symbolized our democratic spirit and our commitment to the rule of law only a few years ago are now exhibiting that same dictatorial mentality that has undermined our political institutions for so long. This time it is being done in the name of “judicial independence,” a concept that our legal establishment—the courts and bar associations—do not seem to understand very well.
For them, judicial independence has come to mean a Judiciary that is entirely autonomous from other branches of government. Towards this goal, they are demanding that Article 175-A of the 18th Amendment, which establishes parliamentary oversight in the appointment of Supreme Court justices, be struck down. They’d like to see a return to the pre-Musharraf era when the legal establishment proposed nominees for the Supreme Court and Parliament was expected to simply accept their proposals. By granting a parliamentary committee the authority to vet and approve Supreme Court nominees proposed by a judicial commission, Article 175-A has gone a long way towards empowering Parliament. But, the legal establishment sees this as a threat to judicial independence and the health of our legal system, and they seem determined to declare it unconstitutional. Theirs is a horribly flawed argument. To have a strong and independent Judiciary, we need to link it to the democratic process and specifically to the organ of government to which the people have a direct channel of communication—the Parliament.
There are two reasons why the legal establishment’s position would compromise judicial independence and the health of our legal system. First, if the legal establishment selects its own, decision making would quickly become concentrated in the hands of a few people at the top of their institutional hierarchies, especially the Chief Justice. These powerful few are likely to select jurists who share their ideals and/or have demonstrated personal loyalty to them. This would incentivize ideological conformity as jurists try to gain favor with their seniors in the legal establishment. Our judiciary would surely become a fiefdom style institution controlled by a few men. This would jeopardize, rather than promote, judicial independence because, as we all know, individuals are easier to manipulate than internally diverse and dynamic institutions. This has been the problem throughout our history. Our Judiciary has consistently endorsed unconstitutional military regimes and excused their criminal undertakings, and this is in no small part due to the concentration of power at the top of the Judiciary. The Judiciary can only have the wherewithal to resist the encroachments of the military if it is internally diverse and comprised of jurists with cross-cutting political loyalties.
The second problem follows logically from the first. People in Pakistan generally feel that the law is a tool in the hands of the few, not a possession of all Pakistani citizens. It is not surprising then that so many of our citizens see the law as something that should be ignored, circumvented or resisted. This understanding of the law is the product of years of abuse at the hands of our elite political classes, both democratic and military, who fail to enforce the law or change it at will, or outright exempt themselves from the law altogether. This is precisely what we must try to change. If the judiciary is allowed to select its own, then power will become concentrated at the top, and this will lend further credence to the view that the law is an instrument of the few rather than a force that reflects collective morality and sentiment. People will come to see the Judiciary as just another political faction vying for power, which will further undermine people’s belief that the law represents the common good.
Parliamentary oversight in the nomination and appointment process would strengthen our legal system by introducing diversity into the Supreme Court and lending much needed moral authority to the law. It goes without saying that Parliament is the most diverse of our political institutions in terms of language, ethnicity, and ideology, and as long as we have free and fair elections, this will always be the case. Parliamentary oversight would ensure diverse membership within the Supreme Court as political factions compete and compromise over appointments. This bartering and trading will necessarily result in a more diverse Supreme Court, and a more diverse Supreme Court is a more independent one. Moreover, regardless of where one stands on the current government, Parliament is the only representative organ of government. If people are going to see the law as their own, as something that reflects their ideals and interests, then it is necessary that they can and do contribute to its making. Parliament is the only institution capable of forging a link between citizens and the law, and its involvement will force the issue into the public arena. In the long term, a public discussion can help restore faith in the law, which is something we in Pakistan desperately need.
If there is a criticism to be made of Article 175-A, it is that it grants too much power to judges and lawyers in the nomination process and too little to elected representatives. It forces Parliamentarians to select judges from a smaller pool of candidates than should be the case. Nevertheless, it is a step in the right direction. Yes, it is possible, even probable, that our politicians will use Article 175-A for their own personal gains. But, the failures of our democratically elected representatives should lead us to hold them accountable and strengthen our democratic institutions and processes, not discard them for a system of one-man-rule, be it a dictator or a Chief Justice.
