Judiciary’s role Chief Justice of Pakistan (CJP) Iftikhar Muhammad Chaudhry, while addressing the roll signing of new Supreme Court (SC) lawyers in Lahore on Saturday, took the opportunity to dilate on the role of the judiciary in a democratic dispensation. In such a system, the CJP argued, every institution has to recognize and respect constitutional norms. The three main organs of the state, the judiciary, executive and legislature, cannot transcend their constitutional circumference through the abuse of authority. The success and efficacy of a democratic system, inter alia, depends on the independence of the judiciary. The judiciary, he emphasised, being the custodian of the constitution, had been specifically equipped with the power of judicial review to check the arbitrary exercise of power by any authority or institution. He argued that the SC on his watch had attempted to fulfil its responsibility as the apex of the judicial hierarchy and the final arbiter of constitutional and legal controversies to bring legal and judicial reforms by prudent interpretation of laws through various landmark judgements and judicial policies. The National Judicial Policy, revised from time to time in consultation with all the stakeholders at national and international levels, has set out guidelines for judges and lawyers for the prompt and fair dispensation of justice. The hard work of the courts, the CJP said, had strengthened public trust in the justice system and more and more people were approaching the courts for redressal of their disputes and grievances. The CJP underlined that a strengthened and independent judicial system plays an assertive and decisive role for the promotion of the rule of law that is the basic substance of democracy, necessitating the supremacy of the constitution, equality before and equal protection of the law. It is the statutory and constitutional responsibility of the judiciary to safeguard fundamental rights and restore entitlement to their owners and grant relief to the aggrieved. While there is little in the remarks of the CJP with which anyone can take issue, they represent the theoretical framework of the role of the judiciary in a democratic system, or at best its highest aspiration. However, the gulf between the principle and the reality is still glaring. Take for example the National Judicial Policy. While it has much to recommend it and its achievements cannot and should not be belittled, it has failed to address the grave issue of the huge backlog of cases in the judicial system that are the bane of litigants’ lives. One of the reasons why more and more people are encouraged to approach the courts is perhaps the freer use of suo motu powers that have convinced shy litigants that redress of their grievances is possible under the umbrella of a hyperactive judiciary. The downside of this phenomenon is that whether through petitions or the frequent use of suo motu powers, the judiciary has not always adhered to the time honoured principles the CJP also reflected on of all the organs of the state remaining within their constitutional powers and perimeters. The last four years since the restoration of the judiciary have seen may instances of controversy surrounding the courts’ transcending their proper purview and intervening in spheres that arguably belong within the jurisdiction of the executive, and sometimes even parliament. The most serious and current controversy swirling around the judiciary is the issue of judges’ appointments to the superior judiciary. Under the 18th and 19th Amendments to the constitution, the Judicial Commission of Pakistan (JCP) is charged with recommending the names of judges to be appointed to the superior judiciary. Although in theory a parliamentary committee composed of both treasury and opposition members is supposed to exercise oversight over such appointments, the lawyers’ community has been agitating for some time that the JCP gives too much power to the CJP and is therefore fundamentally non-inclusive as far as the other members of the JCP, particularly its members drawn from the Bar, are concerned. The JCP controversy has by now spilt over to the parliamentary oversight committee’s role too. After the 19th Amendment, the parliamentary committee’s ability to reject any name proposed by the JCP for appointment as a judge of the superior judiciary has to come with a three-fourths majority and in writing, and is still subject to judicial review by the superior courts. Given this track record of a hyperactive judiciary and the controversies in the JCP, etc, it would perhaps be wise to consider the project of an independent and credible judiciary as still a work in progress.