Judicial independence — 2 By Asma Jahangir - Monday 4th April 2011

THE performance of the commission as well as the committee must constantly be watched by bar associations. So far, their performance raises concerns.
Initially, the PC simply went along with the JC. Perhaps it recognised that a slight disagreement could cause a judiciary that believes it can do no wrong to flare up. For example, the PC confirmed very few additional judges but was hasty in confirming Justice (retd) Abdul Aziz Kundi, who after a few weeks retired with a handsome pension of Rs370,000 per month for life. What was special about this particular individual to earn a lifelong pension after a few weeks of service?
The comments were produced in court. In one case, the chief justice of the Sindh High Court wrote that “the conduct, attitude and behaviour” of the judge under consideration were not qualities ingrained in a judge and therefore senior judges did not approve or recommend his extension. For another, he wrote that the conduct and attitude was unbecoming of a judge. The chief justice of the Lahore High Court had similar comments. In fact, in one case he wrote that the candidate for confirmation was “not inaccessible and indulges in loose talk”.
In another he described the judge as a slow worker, indecisive yet opinionated. In yet another he said the person was a “novice in main legal stream” and required commitment and dedication. He added that the candidate had limited knowledge of the laws. He described yet another candidate as a slow worker, status-conscious, moving in ultra-modern circles and with indifferent behaviour towards the public. These are not traits that can be altered within a few months of training, nor can they be ignored.
Additional judges (who are not confirmed) are kept on extension. Their numbers are overwhelming. For example, only one out of five judges of the Balochistan High Court is confirmed. Out of 28 judges of the Lahore High Court, four permanent judges are made dysfunctional, four others are confirmed and the rest are working on extension.
In Peshawar, three confirmed judges are working while one is dysfunctional and six judges are on extension. Sindh does not fare any better. Out of 18 judges only five are confirmed but one is dysfunctional.
Confirmation of a judge is central to the independence of the judiciary. Yet the JC and the PC continue to extend the tenure of non-confirmation rather than spare the institution of those who are unfit to sit on the bench and grant worthy judges their right to confirmation.
The present chief justice of Pakistan may well be trusted with every decision he makes. However, constitutional amendments are not made around a single individual but to suit all situations. A minority of non-judges in the JC cannot be expected to check judicial nepotism, especially as they too are part and parcel of the legal community and would hesitate to be on the wrong side of their lordships.
The role of the PC must remain measured but rooting it out would be reverting to Al-Jehad, which was often bypassed by the judiciary itself and gave the judiciary unbridled powers over appointments of their peers. The SC judgment has asked that the six controversial additional judges be restored. It is obvious to anyone — sane or insane — that these judges were behind the filing of petitions for their restoration. Such over-keenness should disqualify anyone from elevation. Despite the comments made against them, which are public knowledge, they remain eager to be elevated.
This begs the question of whether the elevation of such persons will indeed add or detract from the very principles of the independence of the judiciary so eloquently written about in our judgments. All one can say is, three cheers for the independence of the judiciary and may our lordships live long enough to see what they sow.
— Concluded
The writer is the president of the Supreme Court Bar Association.

Source : http://www.dawn.com/2011/04/04/judicial-independence-2.html

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