CHIEF Justice Iftikhar Chaudhry’s long-drawn-out term is winding down and in a few months we will have a new chief. While we have had one chief justice for the last eight-and-a-half years, we might see up to seven in the next eight-and-a-half.

Now that we have an independent and fiercely assertive Supreme Court, it might be a propitious time to evaluate the independence of the individual judge in view of the administrative functions of the office of chief justice that gravely impact the administration of justice by the apex court and the judiciary as a whole.

It is now settled that an essential component of judicial independence is the ability of a judge to rule without being influenced by peers, including the chief justice. Critics assert that lack of independence of the individual judge is evident in the near absence of dissent in our judicial verdicts. Can our national propensity to flatter the powerful explain this trend? Sociological inclinations notwithstanding, the prime reasons for entrenchment of the misconceived concept of chief justice being pater familias (owner of the family estate) are structural.

Lord Acton asserted that, “liberty consists in the division of power; absolutism, in concentration of power”. The civilised world through a process of trial and error has now learnt that the best defence against abuse of power is distributing it widely and making its exercise transparent and accountable by subjecting it to an institutional system of checks and balances. We have unfortunately not applied this wisdom when it comes to the chief justice’s office.

The framework of rules, procedures and traditions that enables a chief justice to establish dominion over judicial offices across Pakistan is neither in sync with our constitutional structure nor with best institutional practices. The judiciary is no army for which unity of command is a functional necessity. The chief justice ought to be the first among equals and no more. But concentration of administrative functions in the office of chief justice is such that it can transform any incumbent into an autarch with significant ability to influence judicial outcomes.

We have a federal constitutional structure that endows each high court with the power to superintend and control courts subordinate to it. The Supreme Court is vested with no supervisory jurisdiction over high courts or district courts. Other than its extraordinary Article 184(3) powers, it is only meant to exercise appellate jurisdiction in matters decided by high courts. Unfortunately, over the last two decades we have seen judicial power getting bloated at the top and ineffectual at the district level where ordinary folk interact with courts.

The authority of the chief justice as chairman of the Judicial Commission, chairman of the Law Commission and chairman of the National Judicial (Policy Making) Committee, and the manner of its exercise, seems to be transforming our federal judicial structure into a unitary one. Is excessive use of Article 184(3) jurisdiction by the Supreme Court under Chief Justice Chaudhry’s watch doing to the relevance of High Courts what liberal exercise of writ jurisdiction in the 1990s by the high courts did to the potency of district courts?

Exercise of authority under Article 184(3), especially on suo motu basis, exemplifies the lack of transparency in exercise of administrative functions by the office of the chief justice. While the Constitution vests Article 184(3) powers in the Supreme Court, the administrative procedure employed for its exercise has converted it into the chief justice’s power. There are no objective criteria to determine which of the innumerable matters of public importance involving fundamental rights ought to be taken up by the Supreme Court in its original jurisdiction, especially of its own volition.

There are no objective criteria to determine how benches are to be constituted, how many judges will comprise a bench, what will their composition be, and which cases are to be fixed before each bench. During the last months of chief justice Sajjad Ali Shah the size of the bench headed by him that heard all consequential matters began to shrink. The tradition of dispatching judges out of favour with a chief justice away from the principal seat to hear decades-old appeals as sanction is well known, as is the practice of reconstituting benches midweek should a chief justice so desire.

The 18th Amendment introduced a detailed procedure to make the judicial appointment process deliberative, transparent and vigorous, while giving the Judicial Commission the power to regulate its own procedure. And what did the commission do? It made a rule stating that only the chief justice can nominate candidates for the consideration of the commission.

In other words through this procedural rule the chief justice has been given an absolute veto over all superior judiciary appointments across high courts as well as to the Supreme Court. His overarching authority within the Judicial Commission also gives him considerable ability to determine whether to elevate a high court judge to the Supreme Court or retain him as a high court chief justice and for how long.

The obligation to act in a fair and transparent manner imposed by law on all public office holders and enforced by the judiciary, applies with equal vigour, if not more, to the office of the chief justice. We need to introduce efficient and transparent case and court management systems in the Supreme Court and high courts to replace the existing system of unaccountable discretion of the chief justices.

“Justice is not a cloistered virtue,” Lord Atkin had observed back in 1936. As we approach a change of guard at the Supreme Court we must seek wider distribution of the administrative powers of chief justices amongst senior-most judges of the court to oust arbitrariness in the administration of justice and strengthen the independence of the individual judge. It is not the fame and power of a chief justice, but the integrity, efficiency and effectiveness of the ordinary magistrate that is the gauge of a functional justice system.

The writer is a lawyer.

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