An opinion piece by Reema Omer, ICJ legal adviser in Pakistan.
Chief Justice Anwar Zaheer Jamali has declared the year 2015-2016 as the year of judicial accountability.
Judicial independence has long been a flashpoint in Pakistan, as illustrated by the movement nearly a decade ago to reinstate the unlawfully deposed former Chief Justice Iftikhar Muhammad Chaudhry.
However, accountability has largely been absent from this discourse.
Without accountability, independence has the potential to act as a shield behind which judges have the opportunity to conceal possible unethical behavior.
Indeed, judicial accountability is part and parcel of judicial independence, since a judge whose conduct and decisions are influenced by extra-legal elements cannot be independent.
Under International standards, including UN Basic Principles on the Independence of the Judiciary, therefore, the independence and accountability of the judiciary are inextricably linked.
Chief Justice Jamali’s focus on accountability within the judiciary is welcome, as corruption in the judiciary is a longstanding and chronic issue in Pakistan.
Transparency International’s corruption perception surveys, for example, frequently place the judiciary as the most corrupt institution in the country (along with the police).
CJ Jamali’s focus on accountability in all tiers of the judiciary, including the high courts and the Supreme Court, is an important aspect of the accountability drive.
In the past, where judges have acknowledged corruption in the judicial institution, the focus has been limited only to judges in the subordinate judiciary.
The National Judicial Policy adopted by the Supreme Court in 2009, for example, recommended that strict action be taken against district and sessions judges who carry a “persistent reputation of being corrupt”.
However, while judges of the superior courts were encouraged to decide cases expeditiously, there was no recognition of corruption or other misuse of authority by judges of the Supreme and high courts in the policy.
The Chief Justice’s vision on accountability rests on “activating” the Supreme Judicial Council (SJC), which under Article 209 of the Constitution is tasked with carrying out inquiries into the capacity and conduct of Supreme Court and high court judges.
The SJC comprises the Chief Justice of Pakistan, the two most senior judges of the Supreme Court, and the two most senior chief justices of the high courts.
Disciplinary proceedings are initiated before the Council if there is information from “any source”, or it is the opinion of the President of Pakistan, that a judge from the superior judiciary is either incapable of performing his or her duties due to mental or physical incapacity, or that he or she may have engaged in misconduct.
A finding of guilt by the SJC is the only method by which a judge of the Supreme Court or of a high court can be removed.
The Chief Justice has acknowledged that the SJC has been rendered ineffective because of prolonged delays in deciding complaints: according to the CJ, 90 per cent of cases before the Supreme Judicial Council have become moot, as the accused judges retired while their cases were still pending.
In addition, especially in the recent past, military governments and judges of the Supreme Court have also undermined the authority and the constitutional role of the Supreme Judicial Council.
The most glaring (and damaging) recent example occurred after General Musharraf’s proclamation of emergency in 2007, when the unlawful sacking of then Chief Justice Iftikhar Muhammad Chaudhry and other judges of the high courts and Supreme Court was justified in the name of “judicial accountability”.
These judges were dismissed without the involvement of the Supreme Judicial Council.
Ironically, under the leadership of Chief Justice Chaudhry, the process of circumventing the Supreme Judicial Council continued.
Following restoration in 2009, the Supreme Court gave at least 72 judges who were accused of taking oath under General Musharraf’s provisional constitution the option of resigning or facing contempt of court charges. Their plea to appear before the Supreme Judicial Council for hearing was dismissed by the Supreme Court.
In this context, therefore, Chief Justice Jamali’s focus on rejuvenating the Supreme Judicial Council to perform its constitutional role is a welcome move.
The process of judicial accountability, however, will require much more. Some of these issues were highlighted at a conference of leading judges and lawyers convened by the ICJ in December 2015 on holding judges accountable for involvement in corruption, human rights violations and other misconduct:
First, measures must be taken to ensure that disciplinary proceedings are not used as a means of intimidation, harassment, or retaliation against judges for exercising their judicial functions independently and diligently.
At the minimum, this would mean that disciplinary proceedings against judges are strictly according to the provisions of the Constitution and international standards, and must meet all fair trial and due process guarantees.
Second, transparency should be a key aspect of disciplinary proceedings against judges. The number of cases referred to the Supreme Judicial Council; the legal and evidentiary bases for the complaints; the time taken for adjudication; and the outcomes of the proceedings must be made public – both to maintain the public’s confidence in the administration of justice and also to protect the interests of the parties involved.
Third, what amounts to judicial misconduct must be clearly defined and must be appropriate under the rule of law.
While the current understanding of misconduct seems limited to financial corruption, nepotism and misuse of authority, perhaps what is also needed is the recognition of the role of judges in undermining human rights protections or facilitating violations or impunity for such violations.
One of the ways this can be done is to revise the judicial code of conduct to bring it in line with international standards, including reflecting the duty of judges to guarantee and protect human rights.
And finally, judicial immunity under section 77 of the Penal Code and other provisions of the law, which protect judges from liability resulting from their “good faith” judicial actions, should never insulate judges from prosecution for serious crimes and crimes under international law.
If carried out fairly, expeditiously and transparently, the judicial accountability drive initiated by the Chief Justice can be a step towards restoring public confidence and trust in the judiciary, which has long suffered because of neglect of the problems plaguing the institution. It will also bring Pakistan closer to an independent judiciary, in a truer sense of the term.