May 15, 2024
By Alefia T Hussain
LAHORE:
In recent days, there has been a surge of interest in reform among those within the judiciary and the legal fraternity. Discussions on everything from the appointment to the retirement of judges are taking place across numerous platforms, spanning from conferences to judicial commission meetings.
Most of these discussions are sparked by the developments since Justice Faez Isa took charge. They include the implementation of live streaming for Supreme Court hearings, the convening of full court meetings, and the limitation of the chief justice’s authority in bench formation under the Process and Procedure Act of 2023. These changes have also instilled hope for amendments to Article 175-A of the constitution that deals with the appointment of judges to the superior judiciary.
But a critical question remains: does anyone truly understand the scale and complexity that reforming the judiciary entails? Let us try to understand the issue from the standpoint of a recent speech that was made on the subject, and how jurists and lawyers view it.
During his 35-minute speech at the 5th Asma Jahangir Conference in Lahore last month, senior puisne judge Syed Mansoor Ali Shah, slated to assume the office of Chief Justice of the Supreme Court of Pakistan later this year on October 26, offered some answers to the question at hand.
While acknowledging the “dark patches” in the history of judiciary, he expressed the need to transform the judiciary as an independent institution, “not reliant on individuals but a strong judicial system”. Citing numbers – 4000 judges decided roughly 1.69 million cases in 2023, and 2.4 million cases are pending in Pakistan – he accepted that the system was sluggish, it needed to be made expeditious and, on top of that, most of the judgments were not credible.
Justice Shah emphasised the necessity for courts to embrace new-age information technology and artificial intelligence. He disclosed that the Supreme Court was planning to review the judges’ appointment process and make it more rigorous. The judges not performing well must be asked to leave, which would require the Supreme Judicial Council to be strengthened, he said – “It must not tolerate corruption and inefficiency.”
The implementation of the Practice and Procedure Act was a significant advancement, he added, that would minimise individual adventurism within the judicial process”. Other points of reform mentioned by him included including women in judiciary, training of judges, building a firewall where the institution is well guarded, and moving towards alternate dispute resolution and commercial court.
Justice Shah was addressing the largest conference dedicated to law in the country. Perhaps it was an appropriate platform to launch his reform agenda about the institution he would soon lead. Perhaps the agenda is too dreamy or visionary to revitalise the sluggish institution into a vibrant one. What’s the harm in aiming high?
But not everyone shares the same perspective. Yasin Azad, former president of the Supreme Court Bar Association thinks the Supreme Court is a judicial platform; it should continue to function as it has in the past. “Those advocating for change may encounter resistance and challenges along the way.”
Discussing Justice Shah’s ideas regarding the removal of judges not performing efficiently, Azad explains, “the constitution allows judges to be removed for misconduct only under section 209 through the recommendation of the Supreme Judicial Council. For this process to change, the parliament will have to approve the amendment, and with flux in the current parliament, that seems unlikely.”
Lawyer Saqib Jillani welcomes Justice Shah’s agenda in most parts. “He introduced an automated case management system during his tenure as the chief justice of the Lahore High Court. This innovation has significantly curbed corruption, ensuring that petitioners cannot influence which judge will hear their case.”
Another lawyer Abdul Moiz Jaferii says Justice Shah tried to bring about similar changes as chief justice of LHC and he faced the most friction from the lawyers’ bodies. “He has been advocating for the end of opaque nature of decision-making and become more reliant on technology.”
Reema Omer, lawyer and a legal adviser for the International Commission of Jurists, says it appears there’s a shared understanding among the Supreme Court and major political parties that the judicial appointment process needs to become more inclusive and diverse. “It is a positive step forward”.
However, she adds, the crucial question remains: “what specific reforms are being contemplated to address these concerns, and how far are both the Judicial Commission of Pakistan (JCP) and the government willing to push for these changes?”
She finds it perplexing that the JCP delayed a decision on altering their rules because the law minister mentioned the government’s contemplation of a constitutional amendment regarding judicial appointments. Currently, “the government lacks the majority required to pass such an amendment, rendering it purely speculative. In light of this, why would the JCP postpone implementing changes within its own authority to address issues that fall within its purview?” she questions.
She adds that as for the government, there’s still a lack of clarity regarding the specifics of the proposed reforms and how receptive they will be to get input from key stakeholders in the process. To ensure that the appointments process fosters diversity, several changes are imperative. “This entails reforming the composition of the JCP, which currently consists entirely of men and is anticipated to remain so in the foreseeable future,” says Omer.
She adds that the appointment process needs to enhance transparency. “Though Justice Shah underscores the necessity for an inclusive and diverse judiciary, as well as bolstering the judiciary’s credibility and legitimacy, regrettably, such understanding is often missing in the legal professions, and diversity and inclusion are considered to be in opposition to the idea of merit.”
Expanding on the issue of competence of the judges, lawyer Saqib Jillani thinks, “while appointing judges the committee should also evaluate a judge’s stance on social issues – their commitment to the rule of law, democracy, and human rights, both in their role as a lower judiciary judge or as a lawyer, is crucial.”
“Resources and time are needed to see these changes in the system,” says Azad.
“Reform is not a pipedream. We have seen some examples – such as live streaming of hearings, full court meetings, and changes in the Process and Procedure Act of 2023 – in the recent past,” concludes Reema Omer.