The Supreme Judicial Council: Comfortably Numb?

 Further probing may be needed

“Constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go. Is it not strange, though true, to say that virtue itself has need of limits? To prevent this abuse, it is necessary from the very nature of things that power should be a check to power.”

The quote above is by the much celebrated 17^th century French philosopher and political theorist, Charles Montesquieu, and negates the idea of concentration of unconditional powers in hands of an individual person or an institution. Montesquieu’s scheme gives theoretical foundations to doctrine of “separation of power” and “system of checks and balances’, originally propounded by the Greek intellectual giant Aristotle. The said doctrine envisages the theme that all organs of the state (executive, legislature, and judiciary) must operate through a system of checks and balances and work in their respective spheres. Also sometimes termed as “trichotomy of power” principle, it demands that no organ of the state should be conferred with unfettered powers. Every organ must have some influence on the other two organs in order to ensure independence of all three.

Montesquie’s political thought regarding diffusion of power is a significant part of the constitutional jurisprudence of many successful democracies. The system of “checks and balances” can effectively work only under one condition i.e.: there shall be an effective scheme of executive, legislative and judicial accountability present within the ambit of the constitutional arrangements. Amongst these three types, the most significant is judicial accountability. The reason for that is that judicial powers, especially in written constitutions (like Pakistan, USA), due to their very nature are far-reaching and more or less absolute. Under such circumstances, it is indispensable that a robust, judicial accountability system must exist to prevent colorable exercise of such broad powers. However, the tool of accountability by no means shall be employed to undermine and compromise the independence of the Judiciary.

There can be no quibble at all with the suggestion that the judiciary must be independent. Within our constitutional skeleton, the independence of the Judiciary depends on an institutional freedom from the Executive and the Legislature. This goal is achieved through ensuring that the practice of the appointment, removal, and security of the tenure of judges remains independent of the Executive and Legislature – except for such participations which promote and advance independence of the judiciary.  The independence of the judiciary is a hallmark of the Constitution of the Islamic Republic of Pakistan (“Constitution”) and has also been recognized by the august Supreme Court of Pakistan as one of the its salient features.

Through the enactment of Article 209 of the Constitution, the Supreme Judicial Council (“SJC”) was established with the purpose to inquire into allegations leveled against the Judges of the Supreme Court and various High Courts for either alleged misconduct, or an inability to perform their duties for reasons of mental or physical incapacity. However, despite the long existence of the SJC, the process of accountability of judges in Pakistan in recent years has been marked with sluggishness and futility; the performance of the SJC has not been satisfactory. The inactiveness on the behalf of the SJC has given birth to a perception that the institution is either dysfunctional, or is comfortable in remaining numb and anaesthetized towards these alleged incidents of judicial misconduct.

According to news reports, since 2005 around 200 references were filed for adjudication before the SJC, and there is no information available regarding the pendency and outcome of these references. The sad part of the story, is that the Chief Justice of Pakistan – while addressing the Islamabad Bar Council on 30.11.2015 – had himself admitted that 90 percent of the complaints filed against the Judges of the superior Judiciary had become obsolete because the SJC has been dormant for the past few years, and that the vast majority of References had become infructuous, as most of the Judges had retired after completing their terms.

The snail speed drain of accountability of judges in Pakistan has raised grave questions of public and constitutional importance – especially with reference to the enforcement of fundamental rights embodied in Articles 9, 10A & 19A of the Constitution. Is access to information such as the total number of References filed with the SJC and existing status of those References/Complaints not a fundamental right of every citizen as guaranteed by Article 19 A of the Constitution? Is the existence of an effective system of accountability as envisaged by Article 209 of the Constitution not a sine qua non for independence of the judiciary? Is the speedy disposal of all References filed before the SJC not one of the primary considerations for effectiveness of the system of accountability of Judiciary and precondition for enforcement of Article 10A of the Constitution? Can any Judge of the Supreme Court or a High Court against whom a Complaint or Reference is pending be expected to dispense justice freely and disinterestedly, without trepidation or favor?

The rationale behind this query is that an accused judge can be compelled to acquiesce to unjust demands and misuse; therefore, there is a high probability that he can readily compromise his integrity, impartiality and independence under such unfavorable circumstances – thus violating the right to fair trial.

Indubitably, the SJC’s performance has not been up to the mark and due to its indifference, many grave incidents of alleged judicial misconduct have gone in to a state of efflux. One such instance was the patent misapplication of the law concerning bail matters by a Judge of the Lahore High Court. What happened was that a person filed a bail application before the Lahore High Court, which was dismissed for non-prosecution. Later, another bail application was filed by the same person, and was withdrawn, due to the reason that the learned Judge was not persuaded to grant bail on the merits of the case. Subsequently, within a few weeks, another bail application was moved before the same honorable Judge, by the same person on precisely the same grounds as before, and the bail was granted. The only difference was that this time “a different counsel appeared on behalf of the Applicant”. On appeal stage in the august Supreme Court, a senior Judge found this granting of bail to be “somewhat colorable”. The Apex Court’s observation was absolutely correct as the established principles of criminal law demand that once bail has been rejected (on merits), a new bail can only be moved in case fresh grounds are pleaded.

Despite the commendable and supercilious ambitions of the SJC, it is noted with great anguish that this constitutional body has hardly been operational and useful since its establishment. In the last few days, we have seen the SJC becoming slightly active in relation to the references filed against three judges of the Lahore High Court. However, sadly, in response to the SJC activeness, some lawyers in collusion with the media have initiated a smear campaign against the senior judges of the apex Court with the ulterior motives to black mail the judges, obstruct the working of the SJC and destroy the positive signs shown by the SJC in the last few days. Under such circumstances, the Chief Justice of Pakistan must take the lead, and, in order to dispel the rising perception that the SJC is a deadened and insensitive institution; he must urgently take audacious measures and clean the judiciary from menaces hiding under the cloak of black robes.

It is therefore, crucial that all references or complaints under Article 209 of the Constitution must be decided as expeditiously as possible. All references or complaints must be fixed for hearing before the SJC within a week of receipt thereof, and those which are not worthy of proceeding further, must be rejected out-rightly while others must be decided within the period of one month. Meanwhile, if the facts and circumstances of the complaint so warrant, an appropriate order such as the removal of judicial work from the judge against whom a reference or complaint worthy of proceeding is pending, should be passed.

Filing of a reference against any Judge of the Superior Court is always a serious issue and needs to be considered just as seriously. The SJC must remember that Judges are – for all their reverence and might – after all, human and like all other human beings, are susceptible to the weaknesses of “partiality, fervor, passion, prejudice, mistake, unawareness, avarice or caprice”. Their judgments can frequently include a reflection of their passions, prejudices, thought patterns, and their political and religious ideologies. As Aristotle rightly said: “law is reason/logic without passion”, and the SJC must take notice that passions and prejudices have no significance in the law. The notion of conferring unbridled powers in the hands of humans is not only legally and psychologically flawed, but also absurd and pernicious. The prominent English Jurist Lord Acton once rightly observed that “absolute power corrupts absolutely”.  Being a student of law and political science has taught me that democratic societies are governed by the rule of law and not by the rule of judges.

The SJC – in theory – is an excellent institution of judicial accountability; however, in order to be effective and prove its institutional relevance, a vigorous and intrepid approach from the Chief Justice of Pakistan is required. In addition to that, a few amendments in the composition of the SJC are indispensable, i.e.: apart from judicial members, the SJC membership shall be extended to a representative from the Ministry of Law, the Parliamentary Committee on Law, the Pakistan Bar Council and the Supreme Court Bar Association. The demands of judicial accountability by no means amount to negating the independence of the judiciary. Rather, it helps in transforming the judiciary into a more responsible and autonomous institution. Only a judiciary, that is independent, accountable, impartial, capable and honest in all forms, can uphold the rule of law, safeguard fundamental rights, boost public confidence and dispense justice.