Judges and accountability

Huzaima Bukhari & Dr. Ikramul Haq

“The live coverage of court proceeding will not benefit me but the people of Pakistan. The live broadcast of court proceedings will expose some bad lawyers who do not come prepared. The live broadcast of the court proceedings will give the public access to the truth”— Justice Qazi Faez Isa, Justice Isa Case: SC issues notices to federal government, The News, March 4, 2021.

According to a Press report, the honourable Justice Syed Mansoor Ali Shah of Supreme Court on March 8, 2021, during the hearing of review petitions in Justice Qazi Faez Isa case, by a 10-judge Supreme Court bench, “suggested live stream of its proceedings to full public view when no secrets were 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 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 constraint”.

The Additional Attorney General representing the federation, while pleading for rejection of plea of the petitioner, 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 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 independent judiciary, judges must be men of integrity, blameless, and free from all internal and external pressures. Since justice should not only be done but seen to have been done, the prime duty of a judge is to present himself as justice personified before the public.

The starting point of across-the-board accountability in Pakistan should be making public declaration 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 force the parliament to abolish all laws of 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 disclosure of 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 “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 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 over the same to Subhash Agarwal.

The Indian Supreme Court challenged the order of CIC filing a writ petition in the Delhi High Court. The CIC 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 lead to paving the way for people to know about asset disclosures under the Right to Information Act. It was claimed that asset disclosures by judges was 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 public domain. 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 Chief Justice was not a “Public Authority”, amenable to the Act.

The issue came in further spotlight when the Indian government introduced a Bill in 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 parliament—the members rising above party lines vehemently and collectively condemned this clause, forcing the government to pull out the Bill.

In the wake of debate in Parliament and public campaign, a number of High Court judges made their assets public (in Pakistan only Mr. Justice Mansoor Ali Shah did as Chief Justice of Lahore High Court as he was then), dissociating themselves from the Chief Justice of India’s stand that asset disclosure would lead to harassment of judges at the hands of disgruntled litigants. Eminent former judges and leading jurists joined the civil society—they openly and publicly demanded public declaration of assets by judges.

The entire civil society and media, unanimously and vocally, opposed the stand of Indian 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 K.G. 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 over asset disclosures of the judges and their spouses. It was demanded that information about the assets of other close relatives, like sons and daughters, was also important in the Indian context. It is also valid in Pakistani context as even after elevation, the law houses of many judges are run by their relatives.

It is undisputed that in order to avoid conflicts of interest and the misuse of the prestige of office, judges must give up their political, charitable, and business activities when they take the bench. Until 1961, in India, there were instances in which lawyers appeared in the same court 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 prohibited 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 till today.

When in India, Justice P. Balakrishna Iyer became a judge of the Madras High Court, his son advocate. P. B. Krishnamoorthy shifted his practice to another State. When Justice V. R. Krishna Iyer became a Supreme Court judge, his son who was a lawyer as well, chose not to practice in any court in India opting for private employment. Justice V. Sivaraman Nair of the Kerala High Court had worked as a junior of 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.

Any such example is unheard of in Pakistan. On the contrary, many serving judges have their kith and kin practicing in the same court, and within a few years of starting practice have accumulated substantial assets/enjoying a luxurious life. 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, including their spouses and children. This will be a starting point of across the board accountability.

In 2020, members of Women’s Action Forum (WAF) sought under the Right of Information Act, 2017, information regarding assets, salaries and perks of honourable judges of Supreme Court and High Courts as well as of military leadership. However, none responded, except Justice Qazi Faez Isa, who provided the details.       

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