- Seasoned lawyers prefer present mode of proceedings; young advocates call for open, public hearings
Lawyer community turns out to be divided over the question whether the Supreme Judicial Council – the supreme body empowered by the constitution to hear cases of misconduct related to sitting judges of the Supreme Court and high courts – should conduct its hearing in open courtroom or in-camera proceedings should continue as per routine.
Recently, a flurry of references against the judges of the Islamabad High Court and the Lahore High Court pending with the Supreme Judicial Council came to the fore. With at least two judges demanding that their trial should be held in open courtroom for greater transparency. A member of Pakistan Bar Council Barrister Raheel Kamran Sheikh suggested that the press releases be issued or press briefing be conducted after every hearing.
Pakistan Today asked notable jurists, former judges and advocates about their take on the matter. “The rule of the Supreme Judicial Council is to conduct in-camera trials. If there is some exceptional reason then they opt otherwise. I don’t know on what grounds a judge has said to conduct them in open,” said SM Zafar, senior jurist and notable constitutional lawyer.
“The reason for conducting these proceedings in-camera is to save the judges from slender and disrepute, open proceedings can bring a bad name for all parties involved. Those judges against whom the cases are underway can take advantage from the open hearings by giving them popular angles. It is a person’s wish to paint a picture portraying him as innocent and those judging him as biased against him,” he said.
Justice Wajihuddin Ahmed, former Supreme Court judge, drew parallels between higher judiciary and the armed forces and called them two institutions that still hold some respect and popularity among the masses. “They both (judiciary and the army) are playing a very vital role in Pakistan,” he said.
He said that some people believe in unfettered, unchecked liberty and aim to destroy the remaining unifying forces of Pakistan that can play a role in improving the country. “The direction in which they are headed, next they’ll say that disclose minutes of the meetings of the corps commanders’ conference and other highly sensitive issues,” he said.
Justice Wajih agreed that cases of misconduct against the judges should be taken seriously. However, he insisted that the matters related to higher judges should be resolved away from the public gaze. “Judges themselves are conscientious about allegations against them and many judges have resigned in the past like Fazl-e-Ghani, father of Makhdoom Ali Khan and others,” he said.
“For young and immature lawyers who are foreign qualified nothing is sacred under the sun,” he said. “Supreme Judicial Council is empowered to form its own rules by the constitution. The council had decided to hold its proceedings in camera. Now, what is the rationale behind it? Firstly, we have to see what is the nature of the trial? The nature of the trial is that SJC conducts trial of a peer by the peers. The judge in the case is not on trial and no punishment is to be given to him,” said Justice Naseem Sikandar, corporate lawyer and former judge of the Lahore High Court siding with the views of SM Zafar and Justice Wajih.
Sikander said that traditions handed down to us from time immemorial can’t be brushed aside by exigencies of present. “They have to amend the rules. It is not the choice of the accused judge to opt for open or in-camera trial. The younger generations are not aware of the implications of open trial involved in this case. If a judge comes clean out of the Supreme Judicial Council, the proceedings he came out clean from will keep on haunting him for the rest of his career,” he concluded.
However, the younger lawyers differed immensely from their senior colleagues. “We should think about the public at large. They don’t see our judges as judges alone, they see them as Qazi as well,” said Barrister Syed Irfan Raza Naqvi. “Wrongdoing, be it committed by anyone, should be punished accordingly. I fully support that the hearings of the Supreme Judicial Council should be conducted openly,” he said.
Advocate Chaudhary Faizan, who works at the Islamabad District Courts, mirrored the views of Barrister Naqvi, adding that the judiciary should be cleared of corrupt elements. “The litigant, be it in lower courts or higher courts, want quick disposal of cases and couldn’t afford a judge whose integrity has been compromised. The proceedings (of SJC) should be held in open to ensure transparency of process,” he said.
“If you make SJC’s hearing open and allow media to report on them, day in, day out. Then every reference against a judge will become another Panama and another Ayyan Ali case,” said Advocate Nasrullah Shah, a young lawyer who practices at Rawalpindi. “We will do a great harm by making SJC’s hearing public and open. As an ancient maxim reads, the trial of a peer should be held by his peers in the close confines of the chamber, away from the public gaze,” he concluded.
