Need of the hour

Appointment and accountability of judges should be through the parliament

Need of the hour

“The people before you were destroyed because they used to inflict legal punishments on the poor and forgive the rich”—Hadith by Prophet Muhammad (peace be upon him), Sahih Bukhari, Volume 8, Book 81, Number 778.

Our jurisprudence and legal system should have taken this path of light in its pursuit of dispensation of justice. The courts and honourable judges are entrusted with one of the most sacred responsibilities. With a stroke of the pen, they can impact the present and future of individuals as well as the state.

Judiciary represents the only forum where people can seek justice. An effective justice system is vital to ensure rule of law, and provide a mechanism to address grievances arising from offences against individuals and society.

The justice system should operate in a way that people can resolve their disputes peacefully and efficiently. Litmus tests for good judicial systems include accessibility, affordability and freedom from discrimination and influence of the powerful elite. Unfortunately, the current system in Pakistan fails on these yardsticks.

Court proceedings are frequently delayed beyond a reasonable duration of time. The common man is often unable to bear the attached financial costs and emotional trauma. A consolidated statement as of August 31, shows pendency surpassing 2.1 million cases in the Supreme Court of Pakistan, the Federal Shariat Court, the high courts and the district judiciary.

The recent order passed by the apex court for the demolition of certain residential buildings in Karachi has stirred a new debate, mainly because of a different decision in similar cases. The judgment directs the relevant authorities to remove all occupants from the building, take possession of the premises and start the demolition process immediately, preferably using controlled explosion(s).

The owners, who presumably invested their lifelong savings in these projects and expected to enjoy a respectable life are left homeless with their rights as “innocent bona fide third parties” being ignored while government bodies have begun implementing the possession and demolition orders.

Only a few years back, the lease for a famous high-rise building was cancelled by the Capital Development Authority (CDA) for violating its terms. Apartments in this building were owned by the powerful elite of the country. The apex court, in that case, ruled in favour of property owners and imposed a penalty that was to be paid in installments to the CDA.

It may be mentioned that one of the judges on bench had previously served as legal counsel for the property developers. This is tantamount to conflict of interest besides being a violation of the judges’ code of conduct. These factors made it one of the most controversial judgments. The disregard for the basic principle about conflict of interest continues to date.

Following a recent balloting by the Federal Government Employees’ Housing Authority (FGEHA), a few of our judges and their spouses were notified as lucky winners. The Islamabad High Court (IHC) then issued restraining orders against the allotment of plots to the extent of judicial officers who were serving or had served in the IHC and its district courts. The order was challenged in the Supreme Court and one of the honourable members of the bench was among the recipients of the plots. Such decisions and actions are detrimental to the citizens’ faith in the justice system.

The rendering of questionable judgments by the superior judiciary is not a recent development. Pakistanis have faced this issue since 1947. Although the founder of the country was a strong believer in equality, justice and fair play, the judiciary has not always acted in line with these principles. Courts in Pakistan have often been accused of judicial activism and some of the judges have indicated that they feel proud of deviating from their legally-assigned scope and powers. Judicial activism has never brought any good for the country or its citizens or delivered justice to the aggrieved.

The doctrine of necessity propounded by Justice Munir has haunted us for decades, opening the doors for dictators and usurpers of power. In Dosso case, Justice Cornelius gave a concurrent judgment legalising the action that helped him secure his appointment as chief justice of Pakistan. In return, it appears, he obliged Ayub Khan by protecting his illegal actions against dissenting voices and the use of the PRODA and the EBDO to suppress the opposition. Undue favours by the superior judiciary to the powerful continued in the Zia era when the judiciary not only helped him enforce his presidential orders but also legitimised his overthrow of the elected prime minister, Zulfikar Ali Bhutto. During the Musharraf era, some judges upheld the abrogation of the constitution by allowing him to make changes therein.

The most controversial era in judicial history started when a judge blatantly used the honourable office to run political campaigns and settle personal scores. He deliberately violated the code of conduct by interfering in administrative matters, meeting with politicians and participating in election campaigns. We saw him appearing on TV as chief justice; in live shows advocating the building of a large dam and asking for funds from litigants in open court, making another inroad on the credibility of our judicial system.

During his tenure, the judiciary decided the famous Panama case by introducing a new logic in legal and accounting history by calling receivable salary an asset, which was a write-off of bad debts in terms of the Income Tax Ordinance, 2001. Section 132 of the same ordinance does not require reporting of receivable incomes by individuals.

Also, a judge was removed without investigating the shocking claims he made. More recently, Justice Qazi Faez Isa case created doubts in the minds of many when the Supreme Court ordered an inquiry by the FBR into his wife’s assets, even though she was not a part of the petition taken up by the bench.

At times, there have been tactical delays in the hearing of important cases involving the ruling party. Most recently, a retired chief judge of Gilgit Baltistan has signed an affidavit alleging that a former chief justice verbally directed another judge not to release certain politicians ahead of the general elections.

All these examples show that Pakistan needs to revisit its judicial system. Some of the judges have been blatantly violating their code of conduct and passing questionable judgments without a fear of accountability.

Appointment and accountability of judges should be through the parliament. We cannot restore people’s confidence in our judicial system without establishing strict accountability procedures. Civilised nations ensure that judges are not biased and uphold the Constitution. Ethical principles for judges, issued by the Canadian Judicial Council, state that:

“Judges should disqualify themselves in any case in which they believe that a reasonable, fair-minded and informed person would have a reasoned suspicion of conflict between a judge’s interest (or that of a judge’s immediate family or close friends or associates) and a judge’s duty.”

The global ethical principles about conduct and impartiality of judges are very clear. We need to take inspiration from such references. Our honourable judges need to ponder over the amortising public trust level and bring about reforms in their institutions. Justice is an indispensable pillar of the society. Judicial reforms should not be ignored.

Abdul Rauf Shakoori is a corporate lawyer based in the US. Huzaima Bukhari is an advocate of high court, and adjunct faculty at the Lahore University of Management Sciences (LUMS)

Need of the hour