Who will judge the judges?
Quis custodiet ipsos custodes? Fancy Latin for “Who will guard the guards themselves?” The Romans were onto something when they thought up the question, so much so that 20 centuries later, there is still no easy answer. And half the world away from the Holy Roman Empire, in everyone’s favourite Islamic Republic, the Long Night of the Judges drags on longer.
For context: A general deposes a judge. But the judge ends up deposing the general, and all of a sudden, everything is changed. The men in wigs, after an unhappy history, stand redeemed. They are back, and they want to make a difference. The all-seeing eye of the last chief justice Iftikhar Muhammad Chaudhry took notice of the entire realm: From battling brutes (the Taliban in Swat), to shaking down actresses (Atiqa Odho), little escaped the man. Democracy and accountability at all costs, we are told, is the court’s top priority.
Which makes the judiciary’s own democratic deficit so painful to watch. While (rightly) rectifying social ills, the courts turn prickly when it comes to their own. And the symptoms are growing, especially for the long-jealous appellate courts. The 18th Amendment could have put an end to this. Via its Article 175(A), our lawmakers tried to take the power to appoint judges away from the chief justice of Pakistan, and put it in the hands of a parliamentary committee. So enraged the judges became, the 18th Amendment almost never happened. Finally, in a jam-packed courtroom, the courts blinked. The article stayed. The politicians pinched themselves. They were, however, told to bring in the 19th Amendment to clip some powers the parliamentary committee had acquired.
The Public Accounts Committee fared even worse. When it came to opening the books, the courts politely informed the committee it was no one to judge the judges — or their purse strings. The Constitution’s preamble was pulled out as reason: “It is the will of the people to establish an order; wherein the independence of the judiciary shall be fully secured”. And for the sake of that glorious principle, the Public Accounts Committee was not seen as being worthy of a response.
To paraphrase a Pakistani novelist, the courts are unfortunately drawing attention to what they mean to hide. Just last month, four Islamabad High Court officers got the chop — of all the things, for leaking an audit report. “Not a single appointment [in Islamabad High Court] has been made on merit,” the report despairs. Nor are suspensions made on demerits, it seems. A pattern has emerged — much like the Pakistan Peoples Party equated hatred towards its government with hatred towards democracy, so the courts have blurred the lines between questioning judges and questioning justice. And when it comes to pesky critics, the state of play is the same: Stonewall institutions, send contempt notices to individuals.
MQM chief Altaf Hussain (apologised, got away). PTI chairman Imran Khan (didn’t apologise, got away). former prime minister from the PPP Yousaf Raza Gilani (didn’t apologise, didn’t get away).
But contempt, as one Lahori lawyer pointed out, is a common law offence past its expiry date. Held the bench in McLeod versus St Aubyn, “Committals for contempt of court by scandalising the court itself have become obsolete in this country … But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of court for attacks on the court may be absolutely necessary to preserve in such a community the dignity of and respect for the court.” By which we coloured populations must abide.
This is, of course, a win-win situation: The more accountable the judges become to the rest of the world, the greater independence it will eventually afford them. That means ‘accountability’ be seen as a stepping stone than stumbling block — a means to a more open, democratic society (opposed to more of the same turf war between judges and lawmakers). As certain Supreme Court justices have recently held their High Court colleagues responsible for over-exercising their discretion, hope is on the way.
Care should also be taken to distinguish between managing the courts well – that is, by registrars and accountants – and adjudicating wisely — that is, by judges. Never the twain should meet. By divorcing the court’s managerial body from the judges, it will become easier to open up to public scrutiny. Said Plato’s dumber older brother Glaucon, “It would be absurd that a guardian should need a guard.” Our judges know better than to agree.