Judges and accountability

Dr. Ikramul Haq

The process of accountability must start from those who judge others. 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, the 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 demonstrate before the public an image of the justice of the nation.

The starting point of across the board accountability in Pakistan should be making public declaration of assets/liabilities by the judges and high-ranking civil/military officials—those of politicians are published every year 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. We can learn a lot from India in this regards. 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 Supreme 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 limelight 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), 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 at 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. However, there have been controversies as to whether the term ‘court’ mentioned in this Rule 6 refers only to the court of that particular judge or the entire court where the relative works. 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 the honourable judges of Supreme Court making others accountable will end this practice through a suo muto case.

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The writer, Advocate Supreme Court, is Adjunct Faculty at Lahore University of Management Sciences (LUMS). Email: ikram@huzaimaikram.com; Twitter: @drikramulhaq