Given a flawed system for appointment and accountability of judges, there should be no surprise if Pakistan is penalised with six billion dollars by an international tribunal as a contract with a foreign company was annulled by a former chief justice, or if a video is leaked about the exceptional conduct of an accountability court judge.
Our judiciary has noble and the finest judges; however, the conduct of judges like Malik Qayyum and Arshad Malik bring our justice system under the cloud. In the context of this crisis in the judiciary, the role of judicial policymakers becomes more important. It is time that the Supreme Judicial Council (SJC) plays its role in letter and spirit of Article 209 of the Constitution. Otherwise, suspicion as to the credibility, competence, and the independence of the judiciary would get strengthened.
If a judge can be allegedly influenced, bribed or blackmailed even under the direct monitoring of a Supreme Court judge, how and where would people depose trust for a just adjudication of their cases? When judgments given by a Supreme Court judge are reviewed by colleague judges after the retirement (in case of judge Saqib Nisar) or set aside by international tribunals with heavy fines (in case of judge Iftikhar Chaudhry), how would people appreciate the legal acumen of judges? When cases are delayed for years or dismissed without a fair opportunity of hearing, how can one believe in the efficiency and impartiality of our justice system? Finally, when some lawyers with allegedly poor professional and personal character are appointed as judges, how can others be convinced as to the unbiased, meritious, and effective role of the Judicial Commission of Pakistan?
What is at stake is not a particular judge or a specific case, but institutional role, capacity, conduct and independence of the judiciary. I sought the indulgence of the legal fraternity in an earlier piece as to the state of affairs in our lower courts and conduct of unbecoming a judge. With more forethought, timely decisions, and confidence this judicial dilemma could have been averted. Alas! It could not happen in Pakistan so far due to the reasons best known to the SJC. It is urged, again, to remove ‘inefficient’ and ‘pliant’ judges without further delay to save our justice system. Justice is the foundation of society. Without a fair, impartial, independent and strong justice system, it is impossible for any society to sustain. It must now be realised by our judicial policymakers.
Transferring, censuring, or punishing a judge occasionally or selectively is not a permanent solution
Salahuddin Ahmed has rightly noted in daily Dawn that “The Supreme Court — and all its judges — are now at crossroads. They must navigate through the dark clouds that hang around their institutional credibility and public legitimacy as well as the positions they shall occupy, collectively and individually, in the public pantheon.” Hamid Khan, in his book, A History of the Judiciary in Pakistan, paid tribute to some judges as honest and upright, and at the same time, called a few others as corrupt, incompetent, and spineless. The difference with Hamid Khan’s opinion regarding a particular judge notwithstanding, his overall analysis of our judicial history seems convincing.
With mixed baggage of history and the present context of scandal and suspicion about the conduct of a few judges, our chief justice and other upright judges need to show their strength and reform our justice system on priority. After all, they are the protectors of the Constitution, fundamental rights, the rule of law, democracy, and the fountain of justice. The people trust and look towards the judiciary with the highest esteem and respect. Judicial institutions are always the last hope for those whose voice is not heard elsewhere. This hope must be kept alive. The independence, integrity, and respect of the judiciary must be upheld. The bar and the civil society must support the judiciary in the face of any intrigue, conspiracy and allegation aimed to weaken this institution. Our honourable, independent, honest, upstanding, and ethical judges must be appreciated and protected.
Chief Justice Khosa once stated that those who cannot dispense justice must go home. These remarks indicate an urgent need for the accountability of judges and long-term judicial reforms. The SJC is mandated to proceed against judges on the grounds of mental incapacity and misconduct; so, SJC may conduct a judicial review of the capacity and conduct of judges based on their performance and behaviour. In this regard, SJC may collect information from its sources and also conduct public perception surveys amongst the bar members and the litigants.
Transferring, censuring, or punishing a judge occasionally or selectively is not a permanent solution. Overhauling of the justice system is needed—that does not seem possible without making a robust procedure for the appointment and accountability of the judges. In this regard, Article 175A (appointment of judges) and Article 209 (accountability of judges) may be revised with the consultation of bar councils and a select committee of the parliament. The appointment and performance review procedures given under other judicial systems may also be studied to recommend an effective reform and amendment in the Constitution.
The writer is a lawyer