An Ideal Legal System? – Pakistan

The PML-N-led coalition wants to introduce a package of judicial reforms through a constitutional amendment to extend the retirement age of Supreme Court judges by three years. Meanwhile, a country in North America is making waves by revolutionizing its own judicial appointment mechanism and coming up with unique reforms.

The appointment of judges in our country has been a point of contention for decades, but especially before the Judicial Commission of Pakistan was established in 2010. This forum was set up to nominate judges to the high courts and the Supreme Judiciary. However, the appointment process remains a subject of debate within the higher judiciary: should judges be appointed on the basis of the ‘principle of seniority’ or simply on merit? The formalisation of objective criteria for assessing the merit of judges is still under discussion.

It is easy to understand why both the executive and the judiciary want to reform the judicial appointment mechanism. Whatever the reasons behind these reforms, they could be a blessing in disguise if they serve the broader public interest and ensure timely justice.

On the same day that a press release was issued by Chief Justice of Pakistan’s Secretary Muhammad Mushtaq Ahmad, clarifying a misunderstanding about the CJP’s off-the-record conversation with journalists, Mexico introduced groundbreaking judicial reforms in its parliament. The press release explained that during the September 9 debate, the Chief Justice had stated that he had informed the Minister of Justice that if a proposal for an extension of his tenure was meant to be specific to an individual, he would not accept it. Newspapers and TV channels had widely misquoted the Chief Justice as saying that he would refuse an extension of his tenure.

The implications of a democratically elected judiciary in Pakistan are intriguing.

On September 11, Mexican senators approved a judicial overhaul spearheaded by outgoing President Andrés Manuel Lopez Obrador. The changes would make Mexico the first country to allow voters to directly elect judges at all levels, including the Supreme Court. Until now, the appointment of justices to the country’s Supreme Court had been confirmed by the Senate based on a presidential shortlist.

The reform will see the election of more than 6,500 judges, magistrates and ministers, while the number of Supreme Court judges will be reduced from 11 to 9 and their terms of office will be reduced to 12 years. In addition, the minimum age of 35 will be abolished and the required work experience will be halved to five years.

As the debate on judicial reforms was taking place in Congress, hundreds of protesters stormed the chamber, chanting, “The judiciary will not fall.” They said the plan would undermine the independence of the judiciary and threaten the system of checks and balances. In fact, elected judges would be easily exploited by criminals in a country where powerful drug cartels routinely use bribery and intimidation to influence judges. Those who support the reforms argue that the Mexican justice system has become corrupt and only serves the interests of a few power elites.

It is fortunate that Pakistan does not have powerful drug cartels that can influence the judiciary as in the case of Mexico. But there are others who are often seen as doing so. While the motives of the Mexican ruling party are questionable, they do have some merit: a democratically elected judiciary would likely act in the public interest, as it would be held accountable by voters.

There is no telling how long the reforms will last or whether other states will follow suit. But suppose the system were to be implemented in Pakistan — how would it function? The implications of a democratically elected judiciary in Pakistan are intriguing.

The primary concern would be holding free and fair elections for an elected judiciary, which would require neutral institutions and an independent election commission — the latter itself might require a democratically elected leadership. If Pakistan were to have an elected judiciary, it could trigger a debate about the supremacy of Parliament versus the Supreme Court. The current Chief Justice is a firm believer in the supremacy of Parliament and he proved that by attending the Golden Jubilee of the 1973 Constitution in Parliament. The question remains, however, what are the feelings of an elected Chief Justice on this issue? And what about another powerful institution in the country that has veto power — how would that institution react to such reforms?

People will always dream of an ideal system, especially in times of critical challenges. In times of chaos, unconventional ideas often emerge. Recently, I had a conversation with an official dealing with Afghanistan, who said that the TTP issue cannot be resolved without establishing the rule of law.

His perspective suggests that there may be no military, political or diplomatic solution to TTP terrorism in Pakistan. Even in the unlikely event that the Afghan Taliban refused to support the TTP, the group could flourish by exploiting sociopolitical fault lines within Pakistan. A similar dynamic can be seen in the case of the Baloch insurgency. The TTP has built its ideological and social capital by offering a tribal, speedy justice system, and in Swat the main demand of fundamentalist elements has consistently been the establishment of an Islamic legal system.

In this context, the official’s views are remarkable. However, the panacea he proposed implies that the “mother of all solutions” lies in fully implementing the rule of law — without which all other efforts are doomed to failure.

As we look at Mexico’s experiment with a democratically elected judiciary, the key question is whether it can truly guarantee the rule of law, meet public expectations, and remain immune to criminal influence. If successful, it could provide a model for Pakistan, a country in dire need of fresh ideas to address its own internal challenges.

The writer is a security analyst.

Published in Dawn, September 15, 2024