“The real threats to independence of judiciary are from within — stemming from the personality of the judge himself”. — Justice Asif Saeed Khosa.
AN interesting aspect of media and political narrative is the virtual consensus among the media and political elite on the solution to the problem of corruption and accountability. The messiah, when it comes to the issue of corruption, is an exercise in accountability overseen by the higher judiciary ie the high courts and the Supreme Court. But this confidence in the higher judiciary is based on the premise that the higher judiciary itself is not corrupt, that it is beyond influence and acting in a transparent manner.
But the issue of the non-corruptibility of the higher judiciary is critically linked to the system of self-accountability of the higher judiciary itself. So, is the higher judiciary itself accountable within any system? Is that system of judicial self-accountability transparent? Does that system of judicial self-accountability deliver in actual practice? The focus here, of course, is on judicial corruption through money, or influence, or bias/ prejudice for personal benefit and not on other aspects of judicial misconduct, for example incompetence.
It is troubling to note allegations of favouritism in the higher judiciary.
Accountability only in theory: The system of accountability of the judges of the high court and Supreme Court has the following key aspects.
Firstly, under Article 209 of the Constitution, judges of the higher judiciary can only be removed as judges by the Supreme Judicial Council.
Secondly, the Supreme Judicial Council is composed of specified judges of the Supreme Court and specified chief justices of the high court. In other words, it is a system of internal accountability as opposed to external accountability by the legislature or the executive.
Thirdly, the role of the Supreme Judicial Council is limited only to recommending the removal of the judge, or dismissal of the complaint or allegation.
Fourthly, no proceedings for corruption can be initiated against a sitting judge of the higher judiciary under the NAB law in view of the Supreme Court judgement in the Khan Asfandyar Wali case.
In view of the troubled history of the Pakistani judiciary with repeated interference in judicial independence by the military and political elites, such a system of self-accountability is good in theory to protect the court’s independence. But a system which seems ideal in theory has failed when it comes to actual practice.
Consider just one fact: since the enactment of Article 209 in 1973, no judge of the high court and Supreme Court has been removed from office. Are we to believe that there has been, or is, no judge of the higher judiciary who has been, or is, guilty of corruption? Sadly, the potential threat to judicial independence by state and societal vested interests has become an excuse to put on hold judicial accountability — an absolute necessity.
Secretive System: The high courts and the Supreme Court have in numerous judgements declared that the true essence of good governance is transparency in procedure and process and this higher judiciary examines other institutions and officials of the state on grounds of transparency. It is, therefore, surprising that there is absolutely no public record of how many complaints have been filed against judges of the higher judiciary and what has happened to these complaints.
Such judicial accountability has all the hallmarks of a secretive system, which is publicly justified on the grounds that judges will be scandalised because of frivolous complaints. But what about genuine complaints of corruption into which the Supreme Judicial Council decides to conduct an inquiry? How will a judge be scandalised because of limited disclosures of such inquiries? How will judges be scandalised if it is publicly disclosed how many complaints were filed, what were these complaints and how many of these were frivolous complaints?
Even Rule 13 of The Supreme Judicial Council Procedure of Inquiry, 2005, requires all findings to be reported and also gives the Supreme Judicial Council the option to publicly report the proceedings themselves. Also, Rule 14 of the same procedure gives power to the Supreme Judicial Council to act against frivolous complaints. Sadly, the potential threat to judicial independence has become an excuse to keep back transparency in judicial accountability.
Kinship and justice: “Your wealth and children are surely meant as trial for you” (At-Taghabun, 64:15) warns the Quran. Not heeding this warning of the Quran and despite the tremendous contributions of Iftikhar Chaudhry to judicial independence and towards providing access to justice for the powerless, the events relating to his son, Arsalan, and property tycoon Malik Riaz, severely damaged the credibility of the higher judiciary. It is precisely for this reason that Justice Khilji Arif of the Supreme Court in the Arsalan case had perceptively warned that family members of judges should exercise “extreme caution and discretion in their private and public dealings and conduct”.
It is again troubling and disheartening to note that allegations of a resort to favouritism in order to further the legal careers of the kin of sitting judges are presently being heard in the corridors of justice and among lawyers. It is irrelevant whether this alleged favouritism is intentional or not; the public perception of it damages judicial credibility.
It is in this connection that Article IV of the Code of Conduct for Judges of the Supreme Court and the High Courts directs that a judge must “decline resolutely” to act in a case in which there is a personal interest or connection, even a connection with the lawyer or law firm appearing before him, to “ensure that justice is not only done but is also seen to be done”.
The purpose here is not to condemn the higher judiciary, nor to suggest theoretical solutions. It is to make the point that if we are to honour the tremendous sacrifices of lawyers, judges, political and civil society activists for judicial independence then the judiciary must embrace, and not fear, transparent judicial accountability.
The only real protection against military and political interference in judicial independence is public legitimacy and support, and not merely constitutional protections for judges. And I fear that in the next attack on judicial independence, the people and lawyers will only save a judiciary which is accountable.
The writer is a lawyer.
Published in Dawn, August 1st, 2016