For an in­de­pen­dent ju­di­ciary

Pakistan Observer - - OPINION -

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.

M Yasir Kayani

Email: yasirkayani1@ gmail. com

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