For a truly independent higher judiciary
A very senior lawyer and one whose comments and views receive a lot of public attention, recently made some serious allegations against our High Court. For far less critical comments we in the media would have been hauled up for contempt, but that is a different matter, about which we reserve the right to talk another day.
The most scathing criticism against the higher courts made by the said lawyer is that judgments differ from court to court according to political bias. If this comment is even remotely correct then it clearly means that our higher courts are not the dispenser of justice that we want and believe them to be, but are dispensers of politically coloured legal positions. Given the acrimonious nature of our political parties and the confrontational character of politics, such a comment means that our higher court has become a part of the political fray
We the ordinary citizens are not in a position to pass such a condemning opinion about our higher judiciary. That is precisely why the views of such a highly respected barrister become a matter of public attention and grievous concern. As a society, as a democracy, as a people wanting to live under rule of law, such views of our judiciary are extremely worrisome, to say the least.
While the venerable barrister's views should be praised for both its freshness and boldness, the reported version of his speech however lacked suggestions as to how we can come out of this morass? We think the area that needs to be looked into first is the appointment process of the judges. It is through the door of appointments that the executive branch plays havoc with the judiciary. Given the divisiveness prevalent in our society there are partisan lawyers who wait for their respective parties to come to power and then to push them into the ranks of judges. The Chief Justice seems to be a mere spectator of the whole process. Though the process permits him to have a look at the list of possible appointees prepared by the law ministry, and even for him to add his comments and suggestions there is however no law that guarantees that the executive branch has to accept the CJ's recommendations. In terms of process our system is not unique. But in terms of abusing it there is perhaps no match.
Now that a special committee is looking at possible amendments to the Constitution, we suggest that this matter may also be looked at. Article 95(2) ( C ) provides us with an opportunity to prescribe a set of criteria for selection of high court judges in addition to the existing provisions. Once such a set of criteria is set up future appointments can be far more judicious and free from the whims of the executive branch.
We think the new Chief Justice may wish to express his views, as appropriate under the law and under the norms of higher judiciary, on this matter. We also think that former judges, eminent lawyers, citizens and scholars should express their views on this issue. Without the appointment process of high court judges being free from political manipulation, we are not likely to have a truly independent judiciary.
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