Judicial Independence Across the World: Pakistan

This is the third blog that looks at judicial independence in various countries. We have already examined the situations in Papua New Guinea, Nepal & Morocco. We now turn our attention to Pakistan, where one controversial court case has brought the judiciary, legislature, President and opposition parties into open conflict. In common with some of our other case studies, the separation of powers has become very blurred – the executive and legislature are ignoring court judgments, and the judiciary seem to be unusually active in their rulings over political & moral matters.

Pakistan: In April 2012 the Prime Minister of Pakistan, Yousuf Raza Gilani, was convicted of contempt of court by the nation’s Supreme Court. The judgment said that Mr Gilani had ‘wilfully flouted’ a court order.  The court had ordered Gilani to write to the Swiss authorities requesting them to open a corruption case against the Pakistani President, Asif Ali Zardari. In order to make this ruling the court had to, controversially, strike down the National Reconciliation Ordinance, a 2007 political amnesty law, on the grounds that it was unconstitutional.

Yousuf-Raza-Gilani

Yousuf Raza Gilani

Gilani’s lawyer, Aitaz Ahsan (who is also a senator for Gilani’s Pakistan Peoples Party), countered that reopening a case against a serving President would itself be unconstitutional, as incumbents benefit from legal immunity.

National Assembly members then requested that the Speaker of the National Assembly (Dr. Fehmida Mirza, also a PPP member) ask the Election Commission to have Mr Gilani removed from office and disqualify him as an MP. The opposition argued that under Article 63(1) (g) of Pakistan’s constitution, any person found guilty of defaming or ridiculing the judiciary is banned from being an MP.

On the 24th May 2012 the Speaker refused to refer the case to the election commission claiming that, “I am of the view that the charges… are not relatable to the grounds mentioned (in the constitution)”.

Both main opposition parties, Pakistan Tehreek-i-Insaf (PTI) and the Pakistan Muslim League-N (PML-N), then separately petitioned the Supreme Court. PTI’s petition asks the court to declare Speaker Mirza’s ruling unlawful and issue a stay order against Mr Gilani exercising Prime Ministerial powers until the court has reached a judgment. The petition also asks that the Election Commission decide Gilani’s eligibility. The PML-N simply asks that Mr Gilani is barred from performing further duties.

The petitions will be heard by a three member Supreme Court bench.

The judicial independence picture is further complicated by the fact that Justice Khosa, one of the seven member bench that convicted Gilani in April 2012, thought it appropriate to add a note to the judgment that was somewhat of a morality lecture to Pakistani’s. The note even goes as far as to compare the Pakistani executive with Stalinist Russia and encourages Pakistan’s populace to take note of the Arab Spring!

Judicial Independence Around the World: Nepal & Morocco

In a previous blog we looked at judicial independence in Papua New Guinea. Now, we turn our attention to judicial politics in Morocco and also in Nepal. The two nations are both facing constitutional upheaval, Nepal is currently ‘in-between Constitutions’ and Morocco has been in the process of wide-ranging reforms since July 2011, when a new constitution came into force.

Nepal: The caretaker Maoist government and opposition parties have recently been struggling to agree a new Constitution. Indeed, the Constituent Assembly was dissolved without a new Constitution in place. This was good news for Supreme Court judge Rana Bahadur Bam who was the subject of impeachment proceedings at the time – without a legislature the impeachment had to be abandoned. Mr Bam was allowed to remain as a sitting judge.

Rana Bahadur Bam had been accused of taking bribes in 2010 from suspects charged with abduction in exchange for giving them light sentences.

On 31st May 2012 gunmen on motorcycles attacked Mr Bam’s car as he left the Bagamukhi temple to drive to court in Kathmandu. Mr Bam was shot six times and later died in hospital.  Without a Constitution it could be argued that the judiciary are truly independent. However, without a legislature (to make law) and an executive (to enforce that law) the judiciary are left dangerously exposed to those in society who care little for justice, as was evidenced by the murder of Judge Bam.

Morocco: In May 2012 the Club of Moroccan judges, which represents more than half of the judiciary, launched a campaign to demand greater judicial independence. The Moroccan royal family and government currently have control of judicial promotions and salaries.

Approximately 2,900 judges then wore a red armband for a week as a form of protest.

Moroccan Judge Red Protest Armband

A red armband is tied to the robe of a Moroccan judge as a form of protest.

King Mohammed VI announced a new government panel, called the ‘supreme body for national dialogue on the reform of justice’. The panel is led by the Minister of Justice, Mustapha Ramid, and comprises forty members (including eight women). The aim is to draft a national judicial charter.

The panel did not get off to the most auspicious of starts when Taieb Nassiri (a former justice minister) suffered a heart attack at one of the panel’s first meetings. On a more positive note, the panel have already established a work schedule – seven topics to discuss and visits to ten cities, starting in Rabat on 7th & 8th June.

King Mohammed VI noted that “the independence of the judiciary, relative to the legislative and executive branches” is specified in the constitution. The monarch is the guarantor of judicial independence (see Article 107 Moroccan Constitution 2011).

Choosing the monarch as guarantor for judicial independence is an interesting concept. On one hand selecting the monarch is a wise choice; it provides a way to protect the judiciary without overtly politicising them – particularly as the integrity of the Monarch is taken as ‘inviolable’ by Article 46 Moroccan Constitution 2011.

At the same time, won’t the wave of democrats that have emerged in the Maghreb since the Arab Spring be troubled by the fact that the unelected judiciary is guaranteed by an unaccountable King?

Judicial Independence Across the World: Papua New Guinea

In a previous blog  we looked at judicial independence in Greece (where a judge has been appointed caretaker Prime Minister) and Hungary (where the ruling Fidesz have introduced constitutional reforms to place the management of the judiciary firmly in the hands of the executive).

We contrasted this with the stability of judicial independence in the United Kingdom. The debates in this country centre on some very abstruse technicalities, for example the changes to the composition of selection panels for Supreme Court judges proposed by the Crime & Courts Bill 2012. The constitutional position of the judiciary only very rarely enters the public consciousness – think of the recent Peter Hain case, although that was hardly a ‘stop the presses’ type story!

However, much as in Greece and Hungary, in many nations judicial independence is a ‘headline issue’. We are trying to avoid making value judgments on any of these particular cases, and we acknowledge that the judiciary aren’t always sacrosanct. Rather, this blog is just an observation on how judicial independence is a much more pressing political issue in some parts of the world.

We shall begin by looking at the recent, and very chaotic, events that have influenced judicial independence in Papua New Guinea. We hope that this is an appropriate starting point for blogs looking at global judicial independence – it is hard to think of a series of events that could violate the doctrines of the separation of powers more roundly!!!

Papua New Guinea: Two justices of the Papua New Guinean Supreme Court were recently arrested on charges of sedition. Chief Justice Sir Salamo Injia was apprehended by a police unit, led by the Deputy Prime Minister Belden Namah, which stormed into the Chief Justice’s court on 24th May 2012. Justice Nicholas Kirriwom was also detained and questioned by the authorities.

Mr Namah insisted that the Chief Justice was playing politics and was quoted as saying that “the Chief Justice is sick in his head”. The Chief Justice appealed to police and military personnel to abide by his ruling. “This country is being run by men who are happy to use force rather than the rule of law,” he said.

In late May 2012, the two judges had sat as part of a three man bench that ruled (for the second time) that Sir Michael Somare is the legitimate Prime Minister of Papua New Guinea, not Parliament’s choice, Peter O’Neill. Two other Supreme Court judges, Deputy Chief Justice Gibbs Salika & Bernard Sakora, had refused to hand down judgements, citing ethical reasons.  Justice Kirriwom was also accused of authoring an email (sent to other members of the judiciary) that referred to the O’Neill government as illegal.

In late 2011 Sir Michael, the long-time leader of Papua New Guinea, was out of the country receiving medical treatment. Parliament decided that (as Sir Michael had been absent for such a long time) the Prime Minister role was vacant. MP’s then elected Mr O’Neill as the new Prime Minister. In December 2011 the Supreme Court ruled that Sir Michael was the legitimate leader of Papua New Guinea, which briefly led to Sir Michael & Mr O’Neill being Prime Minister simultaneously!

Since then Mr O’Neill has been effectively running Papua New Guinea and it was his government that ordered the arrest of the judges.

Rather confusingly, the Deputy Speaker (Francis Marus) recently declared to Parliament that the court’s decisions would be accepted. However, Mr. Marus said that Sir Michael could not be reinstated as he had missed three sessions of Parliament since January. Nominations for a new Prime Minister were then thrown open.

This led to Mr O’Neill being elected (again) by Parliamentarians on 30th May 2012. The situation should become clearer after general elections in June 2012.

Greek politics and judicial independence

Panagiotis PikrammenosJudicial independence rarely comes to the forefront of contemporary European politics. Normally, the esoteric technicalities of how the judiciary interact with the other branches of government are not of interest to most people.

There are exceptions to this – a few months ago Viktor Orban’s ruling Fidesz party in Hungary was very publicly criticised by the Council of Europe’s Commission for Democracy through Law (the Venice Commission) for various constitutional reforms that placed powers for selecting, disciplining and allocating judges into the hands of the (politically appointed) president of the National Judicial Office, Tünde Handó. Mrs Handó’s appointment was even more controversial as she is married to József Szájer, a Fidesz founder and a current MEP for the party.

However, recent events in Greece have really put the politics back into judicial independence. A senior judge, Panagiotis Pikrammenos, has been appointed as caretaker Prime Minister. This has occurred in accordance with Article 37(3) of the Greek Constitution which holds that the Greek President, after giving various parties time to form coalitions (and then having a go at forming a cross-party coalition himself), can appoint the President of the Supreme Administrative Court of Greece (called the Council of State) to form a Cabinet in order to carry out elections and dissolve Parliament.

Mr Pikrammenos has recently appointed an interim Cabinet, mainly composed of diplomats, academics and former ministers. All sixteen members have agreed not to draw any salary for their work in the interim Cabinet.

Theoretically, the appointment of a judge as Prime Minister is a violation of major constitutional principles. It is more difficult, if not impossible, for the judiciary to be independent of the executive if a judge is in charge of the executive! The notion of the separation of powers is also ‘shot to pieces’ by the appointment of Mr Pikrammenos, especially when you consider that there is now no effective legislature from which the powers of the executive & judiciary should be separated.

However, on a more pragmatic level, there are several reasons why selecting Mr Pikrammenos’ was a relatively tidy solution to Greece’s constitutional problems. Firstly, the citizens of any democracy would, presumably, feel more comfortable with a judge in power. Control by the executive (the ‘machinery of state’) would smack too much of dictatorship, especially in Greece.

Secondly, the Greek Cabinet chose Mr Pikrammenos to become President of the Council of State in 2009 and so it could be argued that he has (very limited) democratic legitimacy.

Thirdly, Mr Pikrammenos is probably one of the most able candidates available. Mr Pikrammenos, an experienced administrative lawyer and judge, has knowledge of how government policy works in practice and how it impacts upon citizens.

Finally, it is important to remember that making a judge Prime Minister is a temporary solution and one that is only used in extremis. Greece is expecting to hold elections on 17th June.

Mr Pikrammenos’ name translates as ‘Mr Embittered’. It is likely that he will be after his month in office.

NHS Reform Under the X-Ray

“The person I trust most for my health, number one, is my GP. And I’ve always seen him or her as a kind of a gateway to any other services. And it’s his judgment, ultimately, or her judgment, that I would back.”  That’s what Eric Pickles told The Telegraph last Saturday. There’s something bucolic about the government’s attempt to put commissioning power into the hands of local GPs, and take it away from “faceless bureaucrats”  in the Primary Care Trusts; it comes from the England of Cameron’s mother, the Berkshire Magistrate, from John Major’s England of “cricket grounds, warm beer, green suburbs, dog lovers, and old maids cycling to holy communion”.  But, the government are also, as Hague once put it, “Thatcher’s children”. Andrew Lansley wants to empower patients, and by empower them, he means increase their choices, and by increase their choices, he means create a market, and by create a market, he means promote efficiency and cut NHS costs, and by cut NHS costs he means offset the effect of the £20 billion of savings required by 2015.

The leaked account of the Strategic Risk Register, which lists the potential pitfalls of the reforms, suggests it challenges both horns of the government’s approach. GPs, it is alleged to say, may lack the experience and skills to manage funds efficiently. Equally, the introduction of a market may lead to private companies failing to do more with less, and simply siphoning away public funds in profit. Consequently, the NHS could eventually prove “unaffordable”.If this is an accurate report of the contents of the Strategic Risk Register – if it seriously moots the possibility of the reforms rendering the National Health Service prohibitively expensive – then it is not surprising that Andrew Lansley does not want to publish the report until after the Health and Social Care Bill is enacted.

The government is appealing an Information Commission order that they should release the full document. The Department of Health has pointed out that Risk Registers express the dangers of policies in “worst case” scenario terms and so can be open to misinterpretation if read out of context. It suggests that Risk Registers in their current form could not be produced if they were subject to FOI requests, for fear of giving the public the wrong impression.This is a version of the chilling effect argument, which Blair put like this:

“Governments, like any other organisations, need to be able to debate, discuss and decide issues with a reasonable level of confidentiality. This is not mildly important. It is of essence. Without the confidentiality, people are inhibited and the consideration of options is limited in a way that isn’t conducive to good decision-making. In every system that goes down this path [FOI] what happens is that people watch what they put in writing and talk without committing to paper…’

The Information Commissioner recognises the danger of FOI causing a chilling effect.  However, in this case it emphasised the fact that, whatever information is released vis-a-vis health reform, officials will still be required to be fully frank when they produce Risk Registers. The Commissioner felt that publishing information about NHS reform might make officials less forthright on that particular subject during the current process, but that there would not be a chilling effect on the record of risk across the policy spectrum.

The appeal will be heard by the Information Tribunal on 5 and 6 March, which may or may not be before the third reading of the Health Bill in the House of Lords – the last chance to substantially amend it. However, Labour propose to discuss the publication of the Risk Register  in an opposition day debate on 22 February. It is possible that this move will prove more effective than the Freedom of Information Act in getting the Strategic Risk Register into the public domain.

Appointments and Diversity: A Judiciary for the 21st Century

The Judicial Independence Project has submitted a response to the Ministry of Justice consultation on ‘Appointments and Diversity: A Judiciary for the 21st Century’, which closed yesterday.

Summary

  • There is a legitimate role for the executive in the appointment of judges. Not onlydoes executive involvement provide a check on the decision-making of the JAC, and the selection commissions responsible for the most senior appointments, it also supplies an important mechanism of political accountability. Above all, executive involvement is critical for fostering the executive’s trust and confidence in the judges. Similar considerations apply to Parliament. If the executive and Parliament are wholly or largely excluded from the appointment process, they might be less inclined to respect the role and independence of the judiciary.
  • The Consultation Paper envisages the reduced involvement of the Lord Chancellorin appointments at the lower ranks of the judiciary, but increased involvement at the higher ranks, through participating in the ad hoc selection panels for the most senior judicial appointments.
  • On appointments to the lower levels of the judiciary, our view is that the goal ofincreasing diversity requires the continued involvement of the Lord Chancellor. Theexperience in a number of overseas jurisdictions, as well as in the UK, demonstrates that improving diversity does not happen automatically as a result of changes in the composition of the legal profession. There is no convincing evidence of a “trickle up” effect. Rather, increasing judicial diversity requires political will to push for reforms, some of which might not be supported by the judiciary or legal profession. Removing the Lord Chancellor from the process of selection to the lower ranks of the judiciary removes the opportunity for the exercise of this political will.
  • On senior appointments, we welcome the impetus to give the Lord Chancellor agreater role. We disagree, however, with the suggested way of doing so. Rather than the Lord Chancellor participating in the ad hoc selection commissions, we favour the commissions providing the Lord Chancellor a short-list of three candidates to choose from, each candidate having been identified by the commission as well qualified and suitable for appointment. This allows for an appropriate degree of executive input by providing greater scope for the Lord Chancellor to promote judicial diversity, whilst also maintaining merit-based selection. It also maintains the Lord Chancellor’s role as a “back-stop” in case of error or malpractice.
  • There should be no serving Justices of the Supreme Court on the panel that selectsany of the Justices (including the President and Deputy President). It is inappropriate for any members of the court to be directly involved in the selection of the other members.
  • A consistent theme in our interviews is that the Constitutional Reform Act is rigidand overly prescriptive. Several interviewees have cited the stipulation of the number of Commissioners in Schedule 12 as an example of this, and hence we welcome the proposal for greater flexibility in determining the composition of the JAC. We agree with the suggested approached to delivering changes to the appointment process.
  • As indicated at paragraph 2, we believe that there are good reasons for involvingParliament in the appointment of senior judges (e.g. the Justices of the UK Supreme Court, the Lord Chief Justice and the Heads of Division). Statements of our views on the scope for parliamentary involvement in judicial appointments and on the dubious strength of some of the arguments made against such involvement can be found in the written evidence we supplied to the House of Lords Constitution Committee as part of its inquiry into the judicial appointment process.

Read the full submission »

New edition of Government and Information: the law relating to access, disclosure and their regulation

A long-time friend of the Unit, Prof Patrick Birkinshaw, and Dr Mike Varney have just published the fourth edition of their book, Government and Information: the law relating to access, disclosure and their regulation. It is designed to be a guide for legal practitioners who work with information laws, and also covers reforms involving the web, protection of privacy, the role of grievance procedures and judicial review in assisting openness,  and the role of the courts in obtaining information.