IN any institutional framework, talk of transparency is seen as something to aspire to and emulate. But when it comes to the bar and the bench, it becomes a divisive concept, with some considering it pivotal for growth and others calling it a red herring aimed at reducing judicial independence.
Transparency is a simple enough concept to understand. All it really stands for is that an institution renders its decisions in a manner which is open for all to see. If you could capture transparency in a single phrase, it would be, ‘this is what I think, why I think it, and what should be done’. The openness in decision-making is symbolic of a judiciary having nothing to hide, showing restraint and cognisant of its actions being subject to scrutiny.
Some fear that too much transparency may open up judges to ridicule and contempt. After all, how can judges be expected to perform their duties when they are being persistently scrutinised and doubted, whether the issue relates to their competency, integrity or even temperament?
Take the case of judicial appointments and elevations. It is often pointed out that if the complete discussions of the Judicial Commission of Pakistan (JCP) were published or telecast, the no-holds-barred remarks could adversely affect the judges’ credibility and legitimacy before the public.
Let alone the fact that most of the damning comments, if any, usually find their way to the media anyway, or that the mere act of supersession is already seen by many as a blow to the credibility of superseded judges, I have a more fundamental issue with this viewpoint which conflates transparency with non-transparent decision-making and ascribes the consequences of the latter to the former. Non-transparent decision-making causes damage to the credibility of a sitting judge, who is subject to a narrative formed not by an institutionalised process, but rather rumours based on titbits of information leaked arbitrarily to the media.
In such a situation, transparency is not the cause of embarrassment, but rather the solution to it. It attempts to limit the harm that non-transparent decision-making can potentially have on the reputation of judges and the judiciary itself by structuring it, streamlining it and taking the narrative away from the rumour mill and squarely positioning it within the judicial process itself.
A case in point are the recent controversial nominations and appointments to the Supreme Court. Whether one sides with wholly subjective criteria for elevation, objective checklist criteria, or simply loose objective criteria to manage subjective decision-making, the lack of an open process has dented the legitimacy of the proceedings themselves, and has rendered the judges involved collateral damage, whether they have been elevated or superseded.
If transparency had been ensured, the damaging effects of such decision-making could have been limited. For example, what if each JCP member is required to provide written reasons for his decision? Such written notes may possibly inject an element of accountability and public scrutiny into the overall process, which would also provide greater impetus for discussion and debate among various stakeholders.
Such a concept is not totally alien to the processes of the JCP, as is clear from the attorney general of Pakistan’s recent written note in relation to the ad hoc appointment of the Sindh chief justice to the Supreme Court. In doing so, the AGP was in fact lauded by many, and the explanation of his decision only served to increase the credibility of the decision-making process, not take away from it.
Additionally, in a situation where the chief justice of Pakistan nominates a junior judge in any particular high court resulting in certain superseded judges not consenting, the JCP could perhaps provide the latter judges an opportunity to have their cases submitted and considered along with the chief justice’s nominee.
In this way, the matter would be less about supersession and more about the factors which lead a majority of members to choose one candidate over another. The discussion would shift from a perceived lack of competence to one revolving around selecting the best amongst the more promising. It would also allow members to actively select candidates not merely on the basis of their past record, but also in terms of the needs of the apex court itself, whether it pertains to a judge with certain specialisation, from a certain province, or of a certain gender.
As such, even though transparency may be considered the judiciary’s bogeyman or a red herring, its utility in increasing credibility and legitimacy should not be underplayed in the name of thwarting an ever-illusory threat to the independence of the judiciary. After all, I am sure we’d all agree, the ‘independence’ of the judiciary is not the same thing as its ‘impunity’.
The writer is a Karachi-based lawyer.
Published in Dawn, September 15th, 2021