The SC has treated judicial independence as a static concept

December 8, 2013

The SC has treated judicial independence as a static concept
Anil Kalhan is an Associate Professor of Law at Drexel University, USA. Before coming to Drexel, he was a Visiting Assistant Professor of Law at Fordham University and an Associate in Law at Columbia University.

A serious student of Pakistan’s judicial history, Kalhan’s article Courting Power in last month’s Herald has been discussed and appreciated at length in the legal circles of Pakistan. His law review article on the judiciary in Pakistan, Gray Zone’ Constitutionalism and the Dilemma of Judicial Independence in Pakistan appeared in the January 2013 issue of the Vanderbilt Journal of Transnational Law and is available here

The News on Sunday: How would you, in a nutshell, assess the role of judiciary under Iftikhar Chaudhry?

Anil Kalhan: Chief Justice Iftikhar Chaudhry has presided over what arguably has been the most dynamic and transformative period for the Supreme Court and higher judiciary in Pakistan’s history. But it would be misleading to speak in the singular of "the Chaudhry Court", as a continuous institution during the entirety of his tenure as Chief Justice. In many ways, there have been two separate "Chaudhry Courts", each playing a distinct role under very different political circumstances.

On one hand, from the time that Chaudhry ascended to become Chief Justice of Pakistan in 2005 to his unlawful ouster during General Musharraf’s extra-constitutional state of "emergency" in 2007, the Supreme Court moved decisively away from its historical role as an institution that has validated military usurpation. During this period, the Court asserted an unusual degree of assertiveness vis-à-vis the Musharraf’s military regime -- for example, expanding its use of public interest litigation and suo motu powers, invalidating the regime’s privatisation of state-owned enterprises, and investigating disappearances arising from the US-led counter-terrorism campaign.

On the other hand, since Chaudhry’s restoration to office in March 2009, what previously had been a conflict over judicial autonomy from the military has rapidly morphed into a conflict over judicial autonomy from an elected, post-Musharraf parliament. The Court has continued to assert its autonomy, as it had before Musharraf’s emergency in November 2007 -- and under a relatively simple understanding of "judicial independence" we might be inclined to understand those assertions of autonomy as comparable, if not equivalent. But in asserting itself, the Court has often elided any distinction between the autonomy and power it claimed vis-à-vis Musharraf’s military regime and the autonomy it now began to assert, even more forcefully, vis-à-vis the post-Musharraf civilian government.

Even though these assertions of autonomy might look similar in some ways, they carry very different implications.

TNS: In your article in monthly Herald, ‘Courting Power’ last month, you said that the concept of judicial independence is not a static concept and arises from various institutional relationships. Do you think there is a realisation within the judiciary of the serious imbalance between independence and restraint?

AK: Whether we are lawyers, judges, or members of the general public, we often speak in short hand about "judicial independence" as if it were an all-or-nothing concept: either the judiciary is "independent" or "not independent," full stop. But in reality, the concept is much more nuanced and multifaceted than that. Even speaking about judicial independence as varying along a one-dimensional continuum between "independent" and "not independent" does not fully capture what it means to assess and speak of the judiciary’s independence.

What judicial independence really involves is an evolving balance between judicial autonomy and constraint across a multiplicity of relationships and dimensions, including, for example, the relationships between the judiciary and other government actors, private interest groups, lawyers and bar associations, the media, the people at large, and, certainly for Pakistan, the military.

No one of these relationships, by itself, fully determines the judiciary’s independence or lack of independence. And within each of these relationships, there are lots of points of potential influence that also contribute to the overall balance between judicial autonomy and constraint, such as the structure of the judiciary as an institution, the processes of judicial appointment and removal, the regulation of judicial conduct, the administration of judicial business, and the means of responding to substantive judicial decisions.

Obviously, I can’t fully speak to what individual judges might think about the overall balance between judicial autonomy and constraint across these many relationships. However, at least based on the published decisions in recent years, in which the Supreme Court has invoked "independence of the judiciary" as a justiciable constitutional principle, the Court has tended, like all of us do from time to time, to treat judicial independence as a relatively static, decontextualised, and undifferentiated concept.

What the Court has appeared to do in those cases is to try to adjudicate this broader, overarching concept of judicial independence in a piecemeal fashion, in the context of specific issues and particular institutional relationships. However, that kind of approach is not likely to pay sufficient heed to the overall balance between judicial autonomy and constraint across all of the relationships and dimensions from which judicial independence arises.

It’s not entirely clear that this broader understanding of judicial independence lends itself well to the kind of concrete specification, through case-by-case adjudication of particular issues, by which courts invariably make their decisions.

TNS: You have also talked about the Supreme Court understanding itself as directly legitimated by the people and, of all institutions, seeing the media as a marker of political will. Do you think this is a reaction to the judiciary’s erstwhile image and this perception that it has of itself will neutralise over time?

AK: I think the Supreme Court’s conception of itself as being directly legitimated by the people of Pakistan has arisen primarily from the Lawyers’ Movement. Certainly, the institutional seeds of this self-conception were sown well before that, when the Supreme Court began to expand its use of public interest litigation and suo motu powers in the 1990s. But in the wake of anti-Musharraf movement’s popular mobilisations in support of the judiciary, this self-conception deepened much further, especially since the Lawyers’ Movement’s strategies were self-consciously designed to sensitise judges to issues of concern to the legal community and the public. And certainly, you are correct to suggest that these strategies simultaneously sought to draw a contrast to the role that the higher judiciary has traditionally played in legitimising military rule.

How the Supreme Court’s conception of its role and identity will continue to evolve remains to be seen. That will depend in significant part on how the various institutional relationships between the judiciary and other actors continue to evolve. Some of that will be a function of the Court’s own actions and decision-making, but some of that will depend upon how other institutions themselves seek to define their relationships with the judiciary.

TNS: In the context of Pakistan, judiciary’s role has been crucial, as you say, to validate military regimes and consolidate status quo interests. Can we say that the judiciary has managed to weaken the role of military in Pakistan’s political context, judging especially by the Memo Case?

AK: The judiciary certainly does not have the power to weaken the military’s political role by itself -- the power of the military and its affiliated interests is too entrenched and too strong. In the long term, Pakistan’s transition away from authoritarian military rule and toward civilian democracy depends on representative institutions with strengthened governance capacities and power to rein in those entrenched military interests. So the more important question ultimately is whether the judiciary will reinforce the military’s entrenched position of political power, as it traditionally has in various ways throughout Pakistan’s history, or instead align itself with Pakistan’s still fragile civilian representative institutions and reinforce democracy and constitutionalism.

TNS: Do you see how the appointment and removal procedure has evolved as a problem in any way?

AK: The power over appointments to the Supreme Court and High Courts has become highly concentrated in the hands of the judiciary itself. This concentration of power stems from a 1996 decision in which the Supreme Court, following precedent from India, held that recommendations for appointment by the chief justice in the constitutionally required process of "consultation" with the executive ordinarily would be binding.

But just as in India, this process has been criticised for concentrating excessive power over judicial appointments in the judiciary, without sufficient transparency, scrutiny, or meaningful engagement by parliament, the legal profession, or the public at large. It’s particularly striking that at the very moment in 2007 that the Lawyers’ Movement in Pakistan was actively campaigning on behalf of judicial independence, a campaign was simultaneously taking shape in India advocating for improved judicial accountability, and concerns about the judicial appointments process were a big part of that campaign.

In fact, the judiciary in Pakistan has even greater autonomy over appointment and removal of judges than its Indian counterparts, for while Indian judges may be removed by parliament, in Pakistan removal is constitutionally assigned to a judicial body, the Supreme Judicial Council.

In this context, the reforms unanimously adopted by the Eighteenth Amendment were notable, in that they sought to place some modest constraints upon the judiciary’s autonomy and power of its own composition by enhancing the role of parliament in the appointment of judges. However, the Supreme Court pushed back against these reforms pretty sharply, suggesting that parliament’s efforts to reform the appointments process might be inconsistent with a "salient feature" of the constitution -- namely, once again, "independence of the judiciary" -- and, therefore, beyond parliament’s constitutional amendment power altogether.

At least nominally, the Court stuck a cooperative tone in its ruling, but the subtext of the decision was forceful and reasonably clear: if parliament did not revise the provisions to the Court’s liking, then the Court would be prepared to invalidate the provisions. Parliament got the message and acquiesced by adopting, again unanimously, many of the Court’s "suggestions" in the Nineteenth Amendment, which had the effect of restoring the judiciary’s primacy in the appointments process.

On balance, the net result might still be a more inclusive judicial appointments process than existed before -- but that result has come hand-in-hand with at least the suggestion that the judiciary might aggressively assert its authority, as in India, to place limits on parliament’s power to amend the Constitution. While it remains to be seen whether that suggestion might develop into a more open and direct assertion of that power, it certainly appears that most Pakistani lawyers, scholars, and other observers have little enthusiasm for that possibility.

TNS: The present Supreme Court under Iftikhar Chaudhry has also been criticised for not engaging in any meaningful reform of the institution, particularly the subordinate judiciary. Some think reform is a long-drawn process and could not have been effected overnight. Your comments.

AK: It is, undoubtedly, the case that reform of the subordinate judiciary will take a sustained, ongoing effort. But the disconnect between that need for a sustained commitment to reform in the lower courts and the Supreme Court’s increasingly populist institutional self-identity is striking. Even with mechanisms like public interest litigation in the Supreme Court, ordinary Pakistani citizens are still much more likely to interact with the lower judiciary, and those courts continue to suffer from huge case backlogs, widespread corruption, uneven quality, and other problems that inhibit access to justice. A judiciary animated by such a strong sense of direct accountability to and legitimation by the Pakistani people might be expected to prioritise those reform efforts to a greater extent than the cases involving the elite political classes that have instead consumed so much of the Supreme Court’s time and attention in recent years.

A shorter version of this interview appeared in the print issue of The News on Sunday, December 8th, 2013.

The SC has treated judicial independence as a static concept