Huzaima Bukhari, Dr. Ikramul Haq & Abdul Rauf Shakoori
“The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people”— Elena Kagan, Associate Justice, Supreme Court of the United States.
An independent and impartial judicial system ensures rule of law in the country. The World Justice Project (WJP) Report listed Denmark, Norway, and Finland at the top of its Rule of Law Index ranking 2021. Denmark is known for having the best judicial system in place and its citizens have more faith in it than even the parliament. They strongly believe in transparency; therefore, the judges have to pass through a strict scrutiny process and all information about them is made public.
A report by Denmark Domstole, titled ‘A close look at the courts of Denmark’, shows that in Demark between 2018 to 2020 on an average 800,000 cases per year were decided. Norway’s judicial system’s independence is exemplary as well. They opted for the best prisoner reforms following Sweden’s example offering free legal assistance in civil suits. However, the supervisory Judicial Committee, an independent disciplinary board, monitors the judges’ unprofessional conduct and misbehavior. Similarly, Finland follows strict laws to ensure transparency and accountability within its judicial system. Chapter 40 of the Finish Criminal Code which deals with offenses in the office is equally applicable to judges.
The United States, in a recent Judicial Conference, adopted various transparency measures, including automating the release of judges’ financial disclosure reports, as well as an amended conflict screening policy that requires judges to sign a model conflict certification statement twice in a year. Besides, the judicial conference requires consistency of approved model plan by each circuit council with the implementation of the mandatory conflict screening.
It may be noted that although these countries’ judicial system is independent and its public acceptance level is greater than underdeveloped country yet they believe in ensuring transparency and adopt strict accountability mechanisms for their judges. Therefore, people of these countries trust their judicial system more than any other public office. Another factor that is very important for maintaining independence is based on the behaviuor and the quality of the decisions. In underdeveloped countries, judges normally ignore this principle. They hardly believe in transparency in the appointment of judges. Moreover, decisions pronounced without legal substance only to favour a particular party merely invite public criticism.
Pakistan’s judiciary, known for judicial activism, was ranked among bottom performing countries (130th out of 139th) on the Rule of Law Index ranking 2021 by the WJP Report. According to the Constitution of Islamic Republic of Pakistan [“the Constitution”], the judicial system operates independent of the executive. However, past and recent events corroborate the perception that the establishment has a degree of influence over judiciary and has been hand in glove in all supra constitutional steps taken in the last 75 years, except judicial martial law of General Perevez Musharraf. Constant interference in the executive’s working has paralysed the functional efficiency of government while at the same time they have failed to perform their own duties in a timely manner. According to a media report, in mid July of this year, 2.144 million cases were pending in the country’s superior and lower judiciary.
Despite established underperformance, the tax-free [see clauses (55) and (56) of Part I of Second Schedule to the Income Tax Ordinance, 2001] benefits extended to judges are perhaps uparralleled. Judges of superior court can have a chauffeur-driven car with 600 liters of petrol, free medical treatment along with family, and rent-free residence maintained by the government with the provision of prescribed limit of electricity, gas, and water, and air tickets of wife on a journey if traveling together. Judges are also given a transport grant equal to one month’s pay. After retirement, a judge is entitled to the minimum amount of pension equal to 70% of the salary determined by the President from time to time payable to the Chief Justice, or a Judge plus 5% of the said salary of each completed year of service either as Chief Justice or Judge not exceeding the maximum amount of pension equal to 85% of the said salary. For their protection and safety, the government also deploys one security guard at the retired judge’s residence round the clock. A Judge of the Supreme Court of Pakistan is entitled to purchase an official vehicle at depreciated value on retirement.
Such elevated emoluments have not been helpful in improving their efficacy in terms of dispoposal or improvement in quality of decisions. Some judgments passed by the superior courts failed to withstand the test at the level of international judicial forums where Pakistan had to face embarrassment as well as monetary loss. A classic example that brought us international embarrassment was the Supreme Court of Pakistan’s decision in the Reko Diq case wherein the country was slapped with a $6 billion penalty, while in the Karadeniz Elektrik Uretim A.S case, the International Centre for Settlement of Investment Disputes (ICSID) Tribunal disagreed with the Supreme Court’s findings and concluded that there was no specific corruption.
Although the Constitution is very clear about separation of powers in determining functions and boundaries of each organ of the state to avoid any conflict but it appears that our judiciary has used unbridled suo muto powers. Their recent involvement in executive matters which continues till today started consequent to lawyers’ movement for restoration of judiciary. Checks and balances for use of these powers is weak and there is no certainity of accountability. Even the Superior Judicial Council’s role raises many questions about its credibility. Justice Shaukat Aziz Siddiqui and Justic Faez Isa cases are quoted as prime examples.
In Justice Siddiqui’s case the council removed him as a judge without investigating the veracity of the claims he made in a speech before Islamabad High Court Bar Association. In Justice Qazi Faez Isa’s case doubts arose in the minds of many when the Supreme Court ordered the Federal Board of Revenue to conduct an inquiry into Justice Isa’s wife’s income statements even though she was not a part of the petition taken up by the bench. Another classic example is that of Rana Shamim, former Chief Judge of Gilgit-Baltistan Supreme Appellate Court, who levelled allegations against a sitting judge of the Islamabad High Court. However, the Chief Justice not only initiated contempt proceedings against Rana Shamim but also gave remarks favouring the judge named in the affidavit, without any proper investigation.
Each organ of the state needs to operate within its boundaries. Independence of the judiciary is important for rule of law but subject to accountability. The honourable judges of the superior courts should review their performance, conduct, and the quality of justice being dispensed. Their appointments and removal should be made through parliament after comprehensive public hearings and screening and not by chief justices or judges alone. The parliament should also establish a supervisory board of retired judges of impechable repute to check the performance of each judge with reference to their conduct and judgements including formation of the benches by the chief justices. Without introducing these vital judicial reforms, Pakistan cannot achieve political as well as economic stability.
Huzaima Bukhari & Dr. Ikramul Haq, lawyers and partners of Huzaima, Ikram & Ijaz, are Adjunct Faculty at Lahore University of Management Sciences (LUMS), members Advisory Board and Visiting Senior Fellows of Pakistan Institute of Development Economics (PIDE).
Abdul Rauf Shakoori is a corporate lawyer based in the USA and an expert in ‘White Collar Crimes and Sanctions Compliance’. They have recently coauthored a book, Pakistan Tackling FATF: Challenges and Solutions