THE PML-N-led coalition wants to introduce a judicial reform package through a constitutional amendment in order to extend by three years the retirement age of the judges of the Supreme Court. Meanwhile, a country in North America is making waves by revolutionising its own judicial appointment mechanism and coming up with unique reforms.
The appointment of judges in our country has been a contentious issue for decades, but particularly before the Judicial Commission of Pakistan was established in 2010. This forum was created to nominate judges to the high courts and the apex judiciary. However, the appointment process remains a subject of debate within the superior judiciary: should the judges be appointed on the basis of the ‘seniority principle’ or simply on the basis of merit? The formalisation of objective criteria for assessing judges’ merit is still under debate.
It is easy to understand why both the executive and judiciary seek 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 the chief justice of Pakistan’s secretary, Muhammad Mushtaq Ahmad, clarifying a misunderstanding about the CJP’s off-the-record conversation with journalists, Mexico introduced landmark judicial reforms in its parliament. The press release explained that during the Sept 9 discussion, the chief justice had stated that he had informed the law minister that if a proposal for an extension in his tenure were intended to be individual-specific, he would not accept it. Newspapers and TV channels had widely misquoted the chief justice as saying he would refuse an extension to his tenure.
The implications of a democratically elected judiciary in Pakistan are intriguing.
On Sept 11, Mexican senators approved a judicial overhaul spearheaded by the outgoing President Andrés Manuel Lopez Obrador. The changes would mean that Mexico will become the first country to allow its voters to directly elect judges at all levels, including to the apex court. Hitherto, the appointment of supreme court judges in that country had been confirmed by its senate from a presidential shortlist.
The reform will see the election of more than 6,500 judges, magistrates, and ministers, while lowering the number of supreme court judges to nine from 11, and reducing their tenure to 12 years. It will additionally abolish a minimum age requirement of 35 years, and halve the required work experience to five years.
While the debate on the judicial reforms was underway in parliament, hundreds of protesters stormed the chamber, chanting, “The judiciary will not fall.” According to them, the plan would undermine judicial independence beside threatening the system of checks and balances. In fact, the elected judges could be in a position to be easily exploited by criminals in a country where powerful drug cartels routinely turn to bribery and intimidation to influence judges. Those favouring the reforms claim that the Mexican judicial system had become corrupt and only served the interests of certain power elites.
It is lucky that Pakistan doesn’t have powerful drug cartels that can influence the judiciary as in the case of Mexico. But there are others who are often perceived as doing so. While the motives of Mexico’s ruling party are debatable, they do carry some weight: a democratically elected judiciary would likely act in the public interest, as it would be held accountable by the voters.
There’s no knowing how long the reforms will last or if other states will follow suit. But suppose the system were introduced in Pakistan — how would it function? The implications of a democratically elected judiciary in Pakistan are intriguing.
The primary concern would be the holding of free and fair elections for an elected judiciary, requiring 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 spark a debate about the supremacy of parliament versus that of the apex court. The current chief justice firmly believes in the supremacy of parliament, and he proved it by attending the golden jubilee of the 1973 Constitution in parliament. However, the question will remain as to the sentiments of an elected chief justice on the issue. And what about another powerful institution in the country holding veto power — how would that institution react to such reforms?
People will always dream of an ideal system, especially at times of critical challenges. In times of chaos, unconventional ideas tend to 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 thrive by exploiting sociopolitical fault lines within Pakistan. A similar dynamic can be observed in the case of the Baloch insurgency. The TTP has built its ideological and social capital by offering a tribal-style, speedy justice system, and in Swat, the main demand of fundamentalist elements has consistently been the establishment of an Islamic judicial system.
In this context, the official’s views are noteworthy. However, the panacea he suggested implies that the ‘mother of all solutions’ lies in fully implementing the rule of law — without which all other efforts are bound to fall flat.
As we observe Mexico’s experiment with a democratically elected judiciary, the key question is whether it can truly ensure the rule of law, meet public expectations, and remain immune to criminal influences. If successful, it may offer a model for Pakistan, a country which is in dire need of fresh ideas to address its own internal challenges.
The writer is a security analyst.
Published in Dawn, September 15th, 2024
