For an independent judiciary
IN the wave of accountability in the country, it seems timely to submit before the Honorable Chief Justice of Pakistan ( CJP) to make the judiciary accountable as the CJP earmarked the New Judicial Year 20152016 as “a year of judicial accountability”. The outgoing chief justice also pointed out significant flaws in our judicial system. The Pakistan Bar Council ( PBC) has recently asked the Supreme Court ( SC) to restrain all those judges of the superior judiciary against whom complaints are pending before the Supreme Judicial Council ( SJC) from performing their duties. It is the first time that a voice for judicial accountability has echoed in the SC and PBC. So, this opportunity should be availed to reform and strengthen our justice system.
At the outset, it may be stated, however, that judges cannot be held accountable like the manager of a football team or an employee of a corporate body. The very nature of the judicial function requires the independence of the judiciary so that judges can decide cases without fear and favour. If a judge could be removed just because a politician or a senior judge does not like his decision, that will undermine the possibility of a fair trial. It may also lead judges to make decisions pleasing those who could remove or promote them. Therefore, judges should be accountable in different ways: accountability to senior judges through the system of a writ, appeal, and revision; accountability to the public through the publication of judicial decisions and annual judicial statistics; accountability through the SJC. These means to ensure a considerable degree of accountability in the judiciary. The judiciary may also promote accountability in its own ranks making the appointment process more transparent. It will lend institutional credibility and independence to the judiciary.
The 18th amendment attempted to make the appointment process of judges more inclusive by allocating some role to a Parliamentary Committee ( Art. 175- A) which was diluted through the 19th amendment. In the SC judgement on the 18th and the 21st amendment, due attention has not been brought to the matter of judicial appointments suggesting a double- ended constitutional mechanism for the nomination of judges. It may be argued that nomination of judges by the concerned Chief Justice of High Court alone amounts to a sort of discrimination in the selection process. Under this process, only those are considered for appointment who are nominated at the sole discretion of chief justice of High Court. So, a nomination at the first instance should be made by a constitutionally composed body of judges and lawyers to make the first nomination an objective process.
In the United States, the Senate Judiciary Committee consisting of eighteen members has a significant role in the process of appointing Supreme Court justices. In Canada, the lawyers submit a written application to a screening committee consisting of judges, lawyers, government officials and other public members before their appointment as judges. In Pakistan, the recommendation of the Judicial Commission and the Parliamentary Committee may also be made public. The people should know why a particular lawyer has been preferred for nomination and appointment on others.
The judicial appointments may not be treated as a ‘ state secret’ as doing justice begins with an objective and open procedure of appointments of judges. Mystique, if any, in the judicial appointments may not foster judicial accountability. The process of accountability should begin from the bench and bar both. In keeping with the promise of our Constitution ( Article 37) to provide ‘ inexpensive and expeditious justice’, the bar should hold lawyers accountable for their professional negligence in the conduct of cases and behaviour towards litigants and courts, and the bench should hold fellow judges accountable for violating the judicial code of conduct. Bar councils should constitute effective disciplinary committees to decide pending applications against lawyers quickly and the SJC should decide pending complaints as per mandated by the Constitution.
Finally, our justice system can be reformed only if members of the legal profession implement their farewell sermons and speeches in letter and in spirit. Thus, we can hope that the declared Judicial Year 2015- 2016 ushers an era of institutional accountability in Pakistan. If the bench and bar succeed to initiate the process of accountability in our legal institutions, it will go a long way to uplift the legal professions and make other institutions accountable to an independent judiciary. — The writer is Advocate High Courts of Pakistan.
Email: yasirkayani1@ gmail. com