The chief justice has reached beyond constitutional questions and matters of legal reasoning in his criticism of high courts’ judgments. He challenged the Lahore High Court for misreading basic evidence in the Khadija stabbing case. In Aasia Bibi’s case, he observed that the courts below had failed to address “downright falsehood” in evidence. He questioned an Islamabad High Court ruling regarding the grant of bail to former prime minister Nawaz Sharif. He lamented over the performance of lower courts and high court in ignoring important evidence or discrepancies in criminal cases.
The CJP has consistently expressed his dismay over the performance of our lower courts. He said, “If the lower courts could deal with the matters carefully, many cases would not come to the apex court.” He categorically stated that those who cannot dispense justice must go home. These remarks by the top judge indicate an urgent need for judicial introspection and reform.
The question remains: how can the judiciary be purged from inefficient or incompetent judges? At the superior-court level, it may involve two judicial institutions outlined in our constitution: the Supreme Judicial Council (Article 209) and the Judicial Commission of Pakistan (Article 175-A).
The Supreme Judicial Council (SJC) is mandated to proceed against a judge of the Supreme Court or High Court if a judge is incapable of performing duties of his office for the reason of mental ‘incapacity’ or has been found guilty of misconduct.
The Supreme Judicial Council Procedure of Enquiry 2005 provides that “Incapacity will include all forms of physical or mental incapacity howsoever described or narrated, which render the judge incapable of performing the duties of his office.” It further provides that “Misconduct includes: conduct unbecoming of a judge (and) he is found to be inefficient or has ceased to be efficient.”
Given the mystique surrounding judicial appointments and persistent fragility in the removal of inefficient judges, our justice system is weak
The procedure also includes conduct that “Is in disregard of the Code of Conduct issued under Article 209-8 of the Constitution.” This code prescribes that, “In his judicial work, a judge shall take all steps to decide cases within the shortest time…through proper written judgments. A judge who is unmindful or indifferent towards this aspect of his duty is not faithful to his work, which is a grave fault.” (Article X)
Ex-CJP Anwer Zaheer Jamali marked 2015-2016 as “a year of judicial accountability.” Outgoing Chief Justice Mian Saqib Nisar admitted his failure to set his own judicial house in order. A sign of judicial introspection and accountability emerges from the statements of our new CJP amidst a new focus on accountability in the country. The legal fraternity has repeatedly urged that pending complaints before the SJC may be decided expeditiously. It is high time, therefore, to strengthen the judiciary by enforcing the Code of Conduct and actualizing the provisions of “incapacity” and “misconduct” against those who are unable to deliver justice.
There should be across-the-board accountability—without any kind of victimization. While inefficient judges should be held accountable; competent ones must be appreciated for their commitment and devotion to the cause of dispensation of justice. Additional training and support may also be provided to judges.
The Judicial Commission of Pakistan (JCP) is empowered to appoint those who are able to provide justice to the people of Pakistan. Article 175-A (appointment of judges) and the Judicial Commission of Pakistan Rules 2010 could be revised to make appointments more transparent and competitive manner.
The existing rules provide a chief justice with discretion to nominate a candidate for appointment as a judge. These rules may be amended to ensure that this discretion is exercised objectively. For example, the first nomination may be made by a body of judges headed by a chief justice. Further, the whole process of appointment should require candidates to go through a multi-stage process of appointment. It may include short-listing of candidates on the basis of assessment reports, written tests and interviews.
In the UK, for example, judges of the high courts and the supreme courts are appointed in an open competition by the Queen on the advice of both the Lord Chancellor and the Prime Minister. The Judicial Appointments Commission of the UK recommends a candidate to the appropriate authority for appointment after considering reports written by the panels (comprising of judicial and non-judicial members), evidence provided in independent assessments, and comments.
In Pakistan, however, the appointments process remains opaque and non-inclusive, as the first nomination is made at the subjective discretion of a chief justice of a high court. An effective institutional consultation is neither made with the parliamentary committee nor with the bar. Even the basic attributes of judgeship that is judgment writing skills, legal reasoning, and judicial aptitude are not assessed in any systematic manner.
Given the mystique surrounding judicial appointments and persistent fragility in the removal of inefficient judges, our justice system is weak. It is hoped that our current CJP ushers in an era of judicial reforms—starting with reforms in the SJC and the JCP.
The writer is a lawyer