Accountability in Pakistan’s superior judiciary

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By Zia Ullah Ranjah

Conduct unbecoming a judge of the superior courts should be penalized. Equally, judges of good conduct and reputation must be protected. Given the increased push for accountability in the country, we should perhaps not be surprised by references against judges of the superior courts. The reference against Justice Qazi Faez Isa alleges misconduct. More specifically, he is accused of concealing his property in London in his wealth statements.

The reference cannot be judged without its background and context. Few would dispute Justice Isa’s professional reputation. His independence, integrity, and honesty have been beyond doubt. He is known as a fearless, plain-speaking, and upright person. He was a leading lawyer before his elevation to the judiciary. Throughout his career, there was not a single complaint of professional misconduct or dishonesty against him. He always stood for truth, justice, and moral values. He taught professional ethics, both to those who worked with him as junior colleagues and to those who served as opposing counsel.

Inevitable differences of opinion as to the content and tone of his judgments notwithstanding, he spoke for constitutionalism, fundamental rights, democracy, and freedom of expression. A judicial commission, comprising Justice Isa, which investigated the August 8, 2016, terrorist attack in Quetta, revealed institutional and procedural flaws in terms of their effect on the security of citizens. He also proposed a way forward for institutional reforms. In the Faizabad sit-in case, he tried to establish the writ of the state within constitutional parameters. It might have ruffled a few feathers, but the context of the reference against Justice Isa is important for any student of law and every independent observer.

The Senate has already adopted a resolution demanding the withdrawal of the reference against Justice Isa. The resolution says, “There is a lingering suspicion that the arbitrary and suspicious filing of references is linked with some recent verdicts of these judges.”

The resolution calls the filing of the references “a direct attack on the independence of the judiciary aimed at stifling the voices of reason, truth, and justice in the highest judiciary.”

The Senate expressed solidarity with “the judges under siege.”

The resignation of Additional Attorney General Zahid F Ebrahim further supports the argument that these references are not a straightforward matter of judicial accountability. Rather, they appear to be part of something bigger and more complex.

Ebrahim has called the references “a reckless attempt to tarnish the reputation of independent individuals and browbeat the judiciary.” Further, the manner in which Justice Isa’s identity was revealed to the public through a media leak, even before the Supreme Judicial Council’s notice to the judge, raises questions about transparency. Justice Isa himself felt compelled to write to President Arif Alvi, noting that, “Selective leaks amount to character assassination, jeopardise my right to due process and [a] fair trial, and undermine the institution of the judiciary.”

Under Article 209 of the Constitution, the SJC is mandated to proceed against a judge of the Supreme Court or High Court if the judge is incapable of performing the duties of his office for the reason of mental incapacity or has been found guilty of “conduct unbecoming of a judge…”

The SJC Procedure of Enquiry (2005) also discourages conduct that is in disregard of the Code of Conduct issued under Article 209, which dictates inter alias that a judge has “to be above reproach, and for this purpose to keep his conduct in all things, official and private, free from impropriety as expected of a judge.”

The reference against Justice Isa is built around “misconduct,” i.e. he is accused of concealing his property in London. The SJC is constitutionally mandated to examine the evidence. The legal fraternity has always urged the SJC to hold judges accountable for misconduct provided that the accountability proceedings are bona fide, transparent and all-inclusive. A reference filed with any kind of prejudice jeopardises the independence of the judiciary and tarnishes the dignity of honourable judges. That is why lawyers demand that “accountability” proceedings should never be an avenue for targeted retribution or selective victimisation. While raising this demand, the lawyers should uphold the law. Concerns that the accountability measures against Justice Isa, and perhaps more widely, have taken a disturbingly selective turn have already provoked much criticism. While conduct unbecoming of a judge should be penalised, judges of good conduct and reputation must be protected.

Given the context of the reference against Justice Isa, hasty judgments and scurrilous remarks should be avoided. Judicial integrity and the process of law are sacrosanct. The media should observe the requirements of the law when commenting and reporting on our state institutions including SJC proceedings.

(The writer is a Pakistan based freelancer.)