A process of accountability

A system lacking credibility and transparency is bound to fail

According to a press report, Justice Syed Mansoor Ali Shah of the Supreme Court of Pakistan suggested during the hearing of review petitions in Justice Qazi Faez Isa case on March 8, “live streaming of its proceedings to full public view when no secrets are involved and let common people from across the country have easy access to justice”.

He added: “The judiciary should open up for the world and let the people decide how we run our institutions as the Judiciary is a public institution and we, judges, are the trustee(s) of the people doing adjudication on disputes. This is something futuristic, but we are not isolated, rather living in a global village. We deprive an individual who is interested in hearing some particular case, but cannot afford to come from Gwadar or Khyber Pakhtunkhwa because of financial constraints”.

The additional attorney general, representing the Federation, pleaded for rejection of the petitioners’ plea. He requested the Supreme Court to decide whether to allow live streaming or live telecast of the case after weighing all options, “but such a decision should only be in an administrative policy matter rather than judicial”.

This case has raised vital issue of access to justice, transparency and the process of accountability. Any process of accountability lacking credibility and transparency is bound to fail, even bounce back. For sustainable democracy, accountability of all through an impartial and competent Judiciary is essential. For a judiciary to be independent, the judges must be men of integrity, blameless and free from all kinds of pressures.

The starting point of across-the-board accountability in Pakistan should be making public the declarations of assets/liabilities by judges and high-ranking civil/military officials - like those of politicians that are published annually in the official gazette. The civil society and media should join hands to press the parliament to abolish all laws providing for secrecy and/or immunity and enact a law in terms of Article 19A of the Constitution for compulsory disclosure of assets/liabilities/taxes paid by judges/generals.

The live telecast of cases of public importance should be allowed under Article 19A of the Constitution which says, “Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law”.

The issue of asset disclosures by judges in India came in the limelight when a Right to Information Application was filed by Subhash Agarwal with the Supreme Court seeking to know if judges of the High Courts and the Supreme Court were complying with the 1997 Code of Conduct. The public information officer of the court claimed that “no such information exists in the Supreme Court registry”.

Later on, an appeal was submitted before the Central Information Commission (CIC) arguing that the Supreme Court was making a distinction between information available with the Chief Justice’s Office and that of the Supreme Court. The CIC, while rejecting this distinction, directed the public information officer of the Supreme Court to secure this information from the Chief Justice’s Office and hand it over to Subhash Agarwal.

The Indian Supreme Court challenged the order of the CIC, filing a writ petition in the Delhi High Court. The CIC had merely directed release of the information about whether judges were disclosing their assets to the chief justice, but in the writ petition, the Supreme Court apprehended that the exercise might pave the way for people to know about asset disclosures under the Right to Information Act.

It was claimed that asset disclosures by judges were exempted under this Act as information was lying with the chief justice under a “fiduciary relationship”. The second contention was that being “personal information”, it had no relationship with the public domain. The chief justice feared that public access of such declarations would amount to “an unwarranted invasion of the privacy” of his brother judges. Finally, it was argued that the chief justice was not a “Public Authority”, amenable to the Act.

The issue came under the spotlight when the Indian government introduced a bill in the parliament providing for asset disclosure of judges, but with a protection clause that the same would not be accessible to the people and that judges would not be made liable for any action on the basis of their disclosure. This led to commotion in the parliament — the members rising above party lines vehemently and collectively condemning this clause, forced the government to withdraw the bill.

In the wake of the debate in the parliament and a public campaign, a number of High Court judges made their assets public (in Pakistan only Mr Justice Mansoor Ali Shah did so as chief justice of Lahore High Court), dissociating themselves from the Chief Justice of India’s stand that asset disclosures would lead to harassment of judges at the hands of disgruntled litigants. Eminent former judges and leading jurists joined the civil society in demanding public declaration of assets by judges.

The entire civil society and media, unanimously and vocally, opposed the stand of the chief justice. Succumbing to opposition — both from inside and outside, he ultimately yielded announcing that the asset declarations of the judges would be placed on the official website. Soon thereafter, twenty one judges of the Supreme Court, including Chief Justice of India KG Balakrishnan, declared their assets, giving details of movable and immovable property owned by them and their spouses.

In India, even in the wake of such declarations, there was a sharp criticism of asset disclosures of the judges and their spouses. It was argued that disclosure of information about the assets of other close relatives, like sons and daughters, was also important in the Indian context. This is also valid in the Pakistani context as after elevation, the law houses of many judges are run by their relatives.

In order to avoid conflicts of interest and the misuse of the prestige of the office, judges must give up their political, charitable and business activities when they take the bench. Until 1961, in India, there were instances of lawyers appearing in the courts over which their relatives were presiding. But after the Advocates Act, 1961, empowered the Bar Council of India to frame rules on the matter, such incidences became rare. Under Rule 6 of this Act, the Bar Council provided that “no lawyer can practice in a court where any of his relatives functions as a judge”. The list of such relatives included his/her father, grandfather, son, grandson, uncle, brother, nephew, stepbrother, husband, wife, daughter, sister, aunt, niece, father-in-law, brother-in-law or sister-in-law. In Pakistan, no such prohibition exists.

When in India, Justice P Balakrishna Iyer became a judge of the Madras High Court, his son, Advocate PB Krishnamoorthy, shifted his practice to another state. When Justice VR Krishna Iyer became a Supreme Court judge, his son who was a lawyer as well, chose not to practice in any court in India and opting for private employment. Justice V Sivaraman Nair of the Kerala High Court had worked as a junior to Justice Krishna Iyer. But as soon as his daughter and daughter-in-law started practicing in the Kerala High Court, he requested the president of India to transfer him to another state.

Such examples are unheard of in Pakistan. On the contrary, many serving judges have their kith and kin practising in the same court. This is a far cry from the days when the sons and other relatives of judges could derive no benefit from their relationship and had to struggle at the bar like any other lawyers. One hopes that ten honourable judges of Supreme Court hearing the review petitions in case of Justice Qazi Faez Isa, first of all, make public their assets, and those of their spouses and children. This will be a starting point for across the board accountability.

The writers, lawyers and authors, are Adjunct Faculty at Lahore University of Management Sciences (LUMS)

A process of accountability