A few weeks back, the Supreme Court refused to admit for hearing a constitutional petition on strengthening procedures for judicial accountability in the country.
Among other things, the petition requested the court to direct the Supreme Judicial Council (SJC) to disclose information regarding the total number of complaints or references registered with the SJC since its inception as well as their current status.
In his two-page order, Chief Justice Anwar Zaheer Jamali justified the refusal to admit the petition on the ground that “it is one of the important aspects of proceedings before the SJC that at every stage of its proceedings…complete confidentiality and secrecy is to be maintained about the actions taken by the council.”
The decision is troubling for its sweeping and overbroad assertion of non-disclosure that is out of step with open and transparent governance. The reasoning also falls afoul of international standards on the independence and accountability of the judiciary, as well as principles related to the fair administration of justice.
The Supreme Judicial Council is a constitutional body comprising five senior SC and high court judges. It has jurisdiction to hold inquiries related to allegations of misconduct or incapacity against judges of the superior judiciary and to make recommendations to the president of Pakistan, who subsequently may remove the judge from office. This is the only way through which judges of the superior judiciary can be removed.
As noted by the petitioner, the SJC has been “barely functional since its establishment”, which has led to the perception that judges tend to shield their own. Chief Justice Jamali too has acknowledged that the SJC has been rendered ineffective because of prolonged delays in deciding complaints: according to the CJ, 90 percent of cases before the Supreme Judicial Council have become moot as the accused judges retired while their cases were still pending.
In this context, it appears all the more important that the Supreme Court ensure that the SJC operates in a transparent way so that public confidence and trust in the institution can be restored.
The court’s decision is problematic on a number of other grounds as well.
First, it is a key imperative of rule of law that those who exercise public power hold themselves open to account and there is a presumption of full disclosure for all issues relating to public administration. This does not mean that all aspects of cases referred to the SJC should be publicised, but that any measures seeking confidentiality must be individually justified as necessary and proportionate.
The Supreme Court’s decision that “complete confidentiality and secrecy is to be maintained about the actions taken by the Council” – including information of public interest such as the number of complaints referred to the Council and the time taken for the complaints to be adjudicated – is plainly overbroad. It is unnecessary, disproportionate to purpose and therefore unreasonable.
Second, international standards call for keeping accountability proceedings against judges confidential only at the initial stages, and that too for the specific purpose of protecting the reputation of the judge against unwarranted damage. Article 17 of the UN Basic Principles on the Independence of the Judiciary, for example, provides that in processing of any “charge or complaint made against a judge in his/her judicial and professional capacity”, “the examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge”.
Information such as the number of cases being considered by the SJC without naming individual judges and the time taken for the council to reach a decision on the complaints clearly do not risk damaging the reputation of the individual judges or the judiciary as a whole. In fact, other important interests such as the effective administration of justice, the right to information of the public at large, and the rights of the complainants make it imperative that, at the very least, such information is made public.
Moreover, neither the public nor the other branches of the state can exercise their functions in providing checks and balances if they do not have access to information on what the Supreme Judicial Council is actually doing. Such considerations have informed the Consultative Council of European Judges, for example, in their call on judicial accountability bodies to undertake the “publication of decisions taken which are both formal and final, in order to inform, not only the whole of the judiciary, but also the general public of the way in which the proceedings have been conducted and to show that the judiciary does not seek to cover up reprehensible actions of its members.”
Finally, if allegations against a judge involve judicial human rights violations or corruption, the alleged victims have rights that go beyond what has been requested for in the petition. International law mandates that victims have access to an effective remedy for human rights violations. In such cases, judicial accountability bodies should recognise both procedural and substantive rights to information and participation in the accountability process for the victims, including in cases where a finding of no violation is made.
To this end, the Supreme Judicial Council’s Procedure of Inquiry, 2005, including Rule 13 that stipulates that “proceedings of the Council shall be conducted in camera and shall not be open to public”, should be amended to expressly recognise the right of alleged victims of human rights violations to participate in such proceedings, subject to certain safeguards.
Last week, the petitioner filed for a review of the court’s refusal to admit the petition on strengthening the Supreme Judicial Council. As Chief Justice Jamali and the Supreme Court reconsider their ruling, they must ensure their decision promotes transparent and effective procedures for accountability of judges that are in line with international standards on the independence and accountability of the judiciary.
The writer is a legal adviser for the International Commission of Jurists. Email: reema.omericj.org