Ethical vs disciplinary codes

Published December 25, 2020
The writer is a legal adviser for the International Commission of Jurists.
The writer is a legal adviser for the International Commission of Jurists.

THE Supreme Court’s detailed judgement in Justice Isa’s case is significant for many reasons. One reason is that this is the first time the court has examined what amounts to misconduct for which judges can be removed from office in such great detail.

The court’s interpretation of misconduct, however, appears to be at odds with international standards on judicial independence. It does not appear to distinguish between breach of ethical guidelines and misconduct that could lead to disciplinary action, making the framework of judicial accountability in Pakistan susceptible to abuse.

One of the questions was whether a judge could be held accountable for “the financial affairs of his independent wife and adult children”, eg if a judge’s wife is unable to provide the source of funding for her properties, could the judge be held guilty of misconduct and removed from office? To some, the court appears to conclude in the affirmative and finds that judges have a “continuing obligation” to make reasonable efforts to be aware about the financial affairs of their family members. Failure to do so could amount to misconduct, which under Pakistani law makes a judge liable to be removed.

Under Pakistani law, judges can only be removed if they are “incapable of performing the duties of their office” or if they are “guilty of misconduct”. Removal is the only sanction expressly provided under the law, regardless of the severity (or lack thereof) of misconduct. The code of conduct for judges of the superior judiciary, however, includes terms that appear overbroad and too imprecise to serve as legal provisions intended to define the circumstances in which a judge may be removed from office.

A fundamental element of judicial independence is that judges should have security of tenure.

Article II, for example, provides that a judge should be, among other things, “God-fearing”, “wise in opinion”, “abstemious”, and “blameless”. In its judgement, the court relies on Article II to argue it is the duty of family members to ensure that “no controversy arises which may embarrass the Judge” as any “irresponsible act on the part of a family member may reflect adversely on the Judge”.

To further support its conclusion that judges have an obligation to be informed about the financial matters of their family members, the court relies on ethical guidelines from other jurisdictions as well as the Bangalore Principles of Judicial Conduct.

Rule 4.7 of the Bangalore Principles provides that a judge shall “make reasonable efforts to be informed about the financial interests of members of the judge’s family”.

However, as stated in the preamble, the principles are “intended to establish standards for ethical conduct of judges”. The commentary explains this further: “Not every failure of a judge to conform to the principles will amount to misconduct (or misbehaviour). Whether disciplinary action is appropriate or not may depend on other factors, such as the seriousness of the transgression, whether or not there is a pattern of improper activity, and the effect of the improper activity on others and on the judicial system as a whole.”

The court also relies on the Code of Conduct for United States Judges and the Guide to Judicial Conduct for Australian Judges. These standards too lay down only “ethical canons” or “guidance” to judges — their breach is not in itself considered misconduct for the purposes of disciplinary action, let alone removal.

International standards are clear that it is good practice for judges to be informed of financial matters of their family members. This is particularly important so that judges can recuse themselves from hearing cases that even indirectly involve their partners or children. However, they do not provide that every failure to do so will automatically constitute misconduct, let alone misconduct sufficiently serious to justify sanctions like removal.

Indeed, a fundamental element of the independence of the judiciary is that individual judges have security of tenure, ie they should not be subject to removal from office during their term of appointment unless such removal is for serious misconduct or incapacity.

The UN Human Rights Committee, an independent body of experts mandated by the ICCPR to interpret and apply its provisions, emphasises, for instance, that requirements of independence of judges mean that judges should be removed only on “serious grounds” of misconduct or incompetence.

Furthermore, the UN Basic Principles on the Independence of the Judiciary provide, among other things, that: “All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct” and that judges may only be removed for “incapacity or behaviour that renders them unfit to discharge their duties”.

Despite the necessity of clearly defined and appropriately high grounds and criteria for removal or discipline for judicial independence, these elements are not explicitly set out in law or the judgement.

Codes of conduct intended only to provide ethical guidance to judges can be broad and general, but when a system allows for any breach of their provisions to give rise to the gravest sanction of removal, the system becomes inconsistent with international standards and the risk of arbitrary or biased application becomes very high.

In his recent report to the UN Human Rights Council, the UN Special Rapporteur on the Independence of Judges and Lawyers clarified this distinction further and said “codes of ethics may serve as a supplementary source of guidance for judges in their work, but they should not be used as a primary source for establishing judicial liability”.

In some cases, serious violations of ethical norms could also imply fault that could lead to disciplinary sanctions. The court, however, does not appear to allude to such aggravating factors in its judgement — instead, it seems to place a high burden on judges, where even a minor breach of ethical guidelines could carry the penalty of removal.

Such a framework could undermine judicial independence by allowing the judicial accountability process to be used as a means of controlling or penalising judges.

It is imperative, therefore, that conduct that could lead to the removal of judges is formulated precisely in the code of conduct or another legal source, and courts as well as the Supreme Judicial Council interpret and apply grounds for removal of judges in a manner consistent with international standards on independence of the judiciary.

The writer is a legal adviser for the International Commission of Jurists.

Twitter: @reema_omer

Published in Dawn, December 25th, 2020



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