Independence Of Judiciary A Constitutional Challenge

INDEPENDENCE OF JUDICIARY﷓﷓A CONSTITUTIONAL CHALLENGE INDEPENDENCE OF JUDICIARY‑‑A CONSTITUTIONAL CHALLENGE By Asif Saeed Khan Khosa, Barrister‑at‑Law, Advocate Supreme Court of Pakistan In his address a few days ago during a Full Court Reference at the eve of his retirement the outgoing Chief Justice of Pakistan had referred to the Objectives Resolution of 1949 wherein the founding fathers of Pakistan had resolved to frame a Constitution for our beloved homeland which establishes an order wherein, amongst other ideals, "the independence of the Judiciary shall be fully secured". The honourable Chief Justice was pleased to observe that, after more than four and a half decades of our journey and after experimenting with a number of Constitutions, wading through various Constitutional crises and overcoming enormous difficulties, we have reached a stage in our nationhood when we can proudly proclaim that at least this ideal of our founding fathers regarding independence of the Judiciary has finally been accomplished. Having said all that his Lordship hastened to add that the question now being faced by us as a nation is whether this painstakingly -achieved independence of the Judiciary has also been, according to the aspirations of the founding fathers, "fully secured"? His Lordship further remarked that the price of independence of a nation is constant vigil and the same equally applies to independence of the Judiciary as well. In order to protect and sustain its independence the Judiciary has to constantly watch against the factors or actors trying to invade the same. Such remarks, coming from none else than retiring Chief Justice, indeed call for very serious thought and consideration. I venture here to focus on some of the provisions of the Constitution itself which have been utilized and misused by such factors or actors over the last many years for consciously undermining the independence of the superior Judiciary in our country. It may always be kept in mind in this respect that the aspirations of the founding fathers qua fully securing the independence of the Judiciary have nr been translated into the Constitution itself by virtue of inclusion of Article 2‑A therein which unmincingly provides that "The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly". Thus, any action which hampers or impedes the full securing of the independence of Judiciary will not only defeat the relevant principle and provision of the Objectives Resolution but will ipso facto be unconstitutional. Independence of any institution is directly related to its functioning with full strength of its personnel. A Judiciary functioning with substantially deficient or depleted manpower can never be able to discharge its required functions normally and produce satisfactory results. A constant and ever- increasing backlog of cases will not only undermine its image in the eyes of the public but will also put it under constant latent pressure from within. Therefore, the need for appointing Judges to the full strength of the Court cannot be over‑emphasized. Article 176 of the Constitution provides that "The Supreme Court shall consist of a Chief Justice to be known as the Chief Justice of Pakistan and so many other Judges as may be determined by Act of Majlis‑e‑Shoora (Parliament) or, until so d1termined, as may be fixed by the President." Likewise Article 192(1) of the Constitution provides that "A High Court shall consist of a Chief Justice and so many other Judges as may be determined by law or, until so determined, as may be fixed by the President." A bare reading of these constitutional provisions shows that legally the very existence of the Supreme Court or a High Court is doubtful if at any given time these are not manned by the number of Judges determined by the law or fixed by the President. Thus, the State is under a constitutional obligation to keep the said Courts manned by the required strength of Judges all the time. This is further evident from the fact that the Constitution provides for appointment of an Acting Judge of the Supreme Court under Article 181(1) "to act temporarily as a Judge of the Supreme Court" at any time when the office of a Judge of the Supreme Court is vacant or when a Judge of the Supreme Court is absent or unable to perform the functions of his office due to any other cause. Similarly Article 182 of the Constitution provides for appointment of an Ad hoc Judge of the Supreme Court whenever it is not possible for want of quorum of Judges of the Supreme Court to hold or continue any sitting of that Court or whenever, for any other reason, it is necessary to increase temporarily the number of Judges of the Supreme Court. For the same reasons Article 197 of the Constitution provides for appointment of an Additional Judge of a High Court to cater for such an emergent situation. All these provisions clearly show that it is Constitutionally imperative to keep these Superior Courts manned to their full strength all the time. It is unfortunate that this important Constitutional requirement, nay obligation, has neither been fulfilled nor cared about by our State for a long time. It hardly needs a mention here that obedience to the Constitution is an "inviolable obligation" under Article 5(2) of the Constitution; a wilful disregard of a Constitutional obligation amounts to "subversion" 'of the Constitution attracting High Treason under Article 6 of the Constitution and "violation of the Constitution" is a ground under Article 47(1) for impeachment of the President who is under an oath to discharge his duties and perform his functions "faithfully in accordance with the Constitution" and to "preserve, protect and defend the Constitution". Knowingly keeping the Judiciary under manned for a long time with a resultant undermining of its independence can, therefore, attract grave consequences not just for the Judiciary but also for all those responsible for bringing about that predicament. I sometimes wonder as to why people think that the abovementioned punitive provisions of the Constitution are merely academic threats which will never be translated into action. On the other hand I believe that the day may not be far away when the said provisions will play a major role in forcing recalcitrants to obey the Constitution in its letter and spirit. The greatest danger of the independence of superior judiciary lies in an uncontrolled power of the executive in the matter of appointment of Judges. In respect of appointment of Judges of the superior judiciary the words "after consultation with the Chief Justice" appearing in Articles 177(1), 193(1) and 203‑C(4) of the Constitution have to be given their due significance and weight. The word "consultation" necessarily denotes a meaningful, and not just a casual, consultation or a mere formality. For all practical purposes the word "consultation" is used here in the context of a concurrence or approval. After all it is the Chief Justice (representing the cumulative impressions and experiences of the entire judiciary) who can be the best Judge of a lawyer's or a member of the subordinate judiciary's ability, experience and suitability for holding a high judicial office. Absence or disregard of his recommendations in that respect surely open doors for political interference of the executive in the important matter of appointment of Judges which clearly militates against the concept of independence of the judiciary which the Constitution mandates to be "fully secured". The concept of separation of the judiciary from the executive espoused by Article 175(3) of the Constitution can also be pressed into service for this argument as a free hand given to the executive in the matter of appointment of Judges of the, superior judiciary renders the cherished separation merely wishful and nugatory. Next comes the question of the nature of initial appointment of a Judge of the superior judiciary. It goes without saying that all permanent vacancies must be filled with permanent appointments. No doubt Articles 181 and 182 of the Constitution provide for the appointment of Acting Judges and ad hoc Judges in the Supreme Court but those provisions clearly show that such an appointment can be made only when, under the given exigencies, it is required to increase the number of Judges of the Supreme Court "temporarily" when the full strength of the Court is depleted for a short time. Similar is the position regarding appointment of Additional Judges in the High Courts under Article 197 of the Constitution. These provisions presuppose that these Courts must always be functioning with their full strength of Judges. This is why any occasion of falling short of the full strength is catered for through a stop‑gap arrangement. Unfortunately the letter and spirit of these provisions have not been correctly understood or the same have for the past many years been consciously misused or misapplied and normal vacancies have usually been filled by Acting/Additional appointments which continue for years together. A thread of non‑confirmation, thus, constantly keeps on hanging over the heads of such appointees for years together. Looked at in the above context the concept of appointment on probation and confirmation of the Acting/Additional Judges of the superior Judiciary is alien to the Constitution and nothing could be more abhorrent to the independence of Judiciary than this unconstitutional practice. It may be pointed out here that there is no dearth of authority in Pakistani case‑law that a permanent vacancy cannot be filled through ad hoc, officiating or temporary appointment and that .it is not the form or nomenclature used for such appointment but the substance which determines the true nature of one's appointment to a public office. It has also been held in many cases that an appointee's acceptance of the office under such limitations does not estop him from claiming his true status. If that be the declared legal position then the Executive's ploy of tinkering with the independence of Judiciary through such unconstitutional actions can be effectively resisted and fought against. Even otherwise the so‑called non‑confirmation of the Judges of the superior Judiciary without any effective consultation with or approval of the Chief Justice is another objectionable factor which can also be made an additional ground for resisting this unconstitutional practice. After their appointment the Judges of the High Courts and the Federal Shariat Court are also vulnerable to transfers. A bona fide transfer may not be exceptionable but a motivated transfer of a Judge of the superior Judiciary not only victimizes that Judge but also intimidates the entire Judiciary. Unfortunately practical examples of such victimisation or intimidation are not lacking in our judicial history. The provisions of Article 203‑C (4‑B) of the Constitution which empower the President to modify the term of appointment of a Judge of the Federal Shariat Court, to assign him any other office, to require him to perform such other functions as the President may deem fit, and to pass such other order as the President may consider appropriate, are nothing but preposterous and outrageous. Such sweeping powers, introduced by a military dictator make a mockery of the independence of Judiciary. Unfortunately our judicial history has also witnessed the exercise of these draconian powers by the President against a Serving Chief Justice of the Federal Shariat Court. Nothing could be more debasing to, the independence of Judiciary than that. It is true that Articles 177, 193 and 203‑C of the Constitution empower the President to appoint the Chief Justices of the Supreme Court, High Courts and Federal Shariat Court respectively and there apparently is no constitutional requirement to appoint the senior‑most Judge as the Chief Justice whenever a permanent vacancy to that office occurs in these Courts. However, it is equally true that an uncontrolled power of the Executive in the matter of appointment to such a crucial judicial office necessarily militates against the concept of independence of Judiciary. The Judiciary can neither be effectively "separated" from the Executive (Article 175(3)) nor can the independence of the Judiciary be "fully secured" (Article 2A) as long as this ostensible power of the Executive is allowed to remain unbridled. A way has to be found to harmonize the said power of the President with the Constitutional mandate unambiguously spelt out in Articles 175(3) and 2A thereof. Although Article 180 of the Constitution provides for appointment of the most senior of the other Judges to act as Chief Justice of the Supreme Court of Pakistan whenever the need for appointment of an Acting Chief Justice of the Supreme Court arises yet Articles 196 and 203‑C(8) of the Constitution do not restrict the President's choice in that respect qua the High Courts and the Federal Shariat Court. Thus, these provisions cannot help much to deduce a general constitutional principle that the post of a Chief Justice can only be filled by the senior‑most Judge of that Court available. In this kind of a situation one can fall back and rely on Constitutional conventions which develop over a period of time because of continuous usage and practice. No Constitution, even if reduced to a written document, can possibly be all comprehensive and there is always a scope for expansion of meanings, filling up of gaps, developing of a practice and adopting of afresh interpretation so as to give currency or acceptability to the written words or expressions used years ago or to cater for the present aspirations of the people. Articles 8(1) and 203‑B(c) of our Constitution also. clearly recognise that apart from the written law some usages also do attain a force of law. If, as a matter of principle, it is recognised that, by prescription or otherwise, usages also are sanctified as laws then, by the same principle, finding a place for Constitutional conventions within our written Constitutional framework does not remain difficult. Fortunately we do have a convention of appointment of the senior‑most Judge as the permanent Chief Justice whenever that high office falls vacant. If this convention also advances the letter and spirit of the Constitution itself (Articles 175(3) and 2A) then the apparently uncontrolled power of the President under Articles 177, 193 and 203‑C of the Constitution can be harmonised with the rest of the Constitution by interpreting it to be a function of the President which has to be exercised only in accordance with the said Constitutional convention and not otherwise: Any other interpretation in this respect will surely disturb the equilibrium between the three organs of the State, violate the concept of separation of powers and grievously injure the independence of Judiciary which the Constitution itself requires to be "fully secured". Articles 180, 196 and 203‑C(8) of the Constitution provide for appointment of Acting Chief Justice of the Supreme Court, High Courts and Federal Shariat Court respectively. Even the concept of an acting capacity denotes a temporary arrangement for an emergent situation. The language of the abovementioned Articles of the Constitution also depicts the same spirit. During the days of Martial Laws one may expect a departure from the letter and spirit of the Constitution in this respect but during normal times appointment as Acting Chief Justice against a permanent vacancy and unnecessarily continuing such an appointment for a protracted period of time is unconstitutional besides being a naked and unconscionable attempt to violate the independence of Judiciary. Apprehensions of non‑confirmation or expectations about confirmation as permanent Chief Justice may impair the independence of an Acting Chief Justice and may also adversely affect the smooth and satisfactory working of the Court as a whole for reasons of uncertainty, lack of confident leadership or internal conflict of competing interests. These factors, individually as well as collectively, not only destroy the public image of the Judiciary but also seriously undermine its independence because people can then start attributing motives to every action or judgment of different Judges of that Court. Embarrassment for the Judiciary apart, nothing could be more demeaning for an Executive to shamelessly try to manipulate the Judiciary than this unconstitutional practice. It may be added here that although Article 196(b) of the Constitution also permits the appointment of a Judge of the Supreme Court as an Acting Chief Justice of a High Court yet this power should also be very sparingly used by the President as the same also gives rise to a lot of misgivings, shows uncalled for lack of confidence in the serving Judges of that High Court and is also open to the same vices as have been mentioned above. Another serious matter needing attention in respect of the independence of Judiciary is the disparity between the retiring ages of the Judges of the High Courts and Supreme Court. According to Article 195(1) of the Constitution the retiring age for a Judge of a High Court is sixty‑two years whereas the retiring age for a Judge of the Supreme Court has been fixed by Article 179(1) of the Constitution to be sixty‑five years. It goes without saying that a Judge of a High Court nearing his retiring age naturally may wish to be appointed as a Judge of the Supreme Court because, apart from the obvious honour and dignity of such an appointment, he can then get the period of his service and official facilities extended for another three years. Availability of such an opportunity can possibly make such a Judge fall prey to this temptation and to the vile allurements of the political Executive. Such a gap has to be plugged if such possibilities are to be ruled out. Therefore, for the sake of fully securing the independence of Judiciary this disparity between the ages of retirement of the Judges of the High Courts and the Supreme Court has to be done away with. I must register here that judicial independence cannot be achieved or sustained without provision of better facilities and job conditions for the Judges. It must be appreciated that only a Judge who is comfortable‑ and at peace with himself can attend to his work in a satisfactory and independent manner. A Judge who is in physical discomfort or hard‑pressed for his financial needs is never in a proper frame of mind to settle others' problems or disputes. The importance of freedom from financial and other worries and its bearing upon dispensation of justice cannot be over‑emphasized. Therefore, it is about time that the State must also look into it and take immediate remedial steps in this respect in furtherance of its Constitutional mandate qua independence of Judiciary. My conclusions for the present purposes are that the real danger to the constitutionally guaranteed independence of the Judiciary is from within the Constitution itself which, alongside the provisions ensuring independence of the Judiciary, also carries provisions which can be misused or misapplied by the Executive for interfering with the independence of Judiciary. Now it is for the Superior Courts themselves to ensure that independence by interpreting those provisions in a manner which harmonizes different provisions of the Constitution so as to advance the spirit of the Constitution and to accomplish the Constitutional mandate of independence of the Judiciary being "fully secured".