Ever since restoration of the deposed Supreme Court judges, in 2009, the judiciary in Pakistan has been enjoying unprecedented autonomy and ‘independence’. In this regard, certain episodes of judicial conduct and its consequences (e.g. the Arsalan Iftikhar case), have been criticized by legal scholars and political participants, as an exercise of unfettered discretion by the honorable Judges.
In recent years, there have been several attempts to infuse a sense of accountability into the functioning of our judicial system. The most aggressive of such attempts was made during the enactment of the Eighteenth Constitutional Amendment, which proposed a change in the judicial appointment process. Through the said Amendment (insertion of Article 175A of the Constitution), all political parties agreed that the appointment of a judge to the superior Courts must go through a rigorous process of being approved by a Judicial Commission and a Parliamentary Committee. The expressed intention of the legislature was that through this procedure, a certain degree of transparency could be instilled in the judicial appointment process, and that review by the Parliamentary Committee would allow the ‘people’ to have a say in the appointment of their supreme arbiters.
The Amendment was challenged before the honorable Supreme Court, and almost struck down on the ground that the insertion of this new method of judicial appointment, violated the sacred principle of ‘independence of judiciary’. It was observed that judicial accountability could only be entrusted to members of the judiciary itself.
Since then, extending the same idea of resisting ‘outside’ accountability of judicial conduct, the honorable Courts have issued contempt notices to those insolent enough to question the Court’s conduct, and even rebuffed attempts by the PAC to look into matters of Court expenditures and material assets of the honorable Judges. In so doing, it was most poignantly asserted by an Iftikhar Chaudhry led Supreme Court, that all judicial accountability must rest with the judges alone, and any attempt of outside interference in this regard would undermine the ‘independence of judiciary’.
This paradigm could perhaps have worked, under some stretched conception of judicial independence, except that the judiciary, over the recent years, did not seem interested in holding its peers accountable. And thus, under the stewardship of former Chief Justice Iftikhar Chaudhry, the honorable Courts wrote a legacy of unchecked judicial superiority, even beyond the boundaries of law and the Constitution.
This past week, however, in a welcomed break from the practice of past years, Justice Asif Saeed Khosa of the honorable Supreme Court, authored a passionate and erudite judgment that, inter alia, discusses and holds an honorable Judge of the Lahore High accountable for the exercise and application of his judicial discretion. Justice Khosa, known for his legal acumen and jurisprudential bent, brings to bear his consummate knowledge of criminal law and prolific writing style to discuss the misapplication of law concerning bail matters, by an honorable Judge of Lahore High Court.
As it transpired, the bail application of a person convicted for murder (pending appeal), was filed before the Honorable Lahore High Court and dismissed for non-prosecution (non-availability of the Petitioner, or his counsel, to press the matter). Subsequently, another application was filed by the same convict, and was withdrawn (prior to decision) “after arguing the case at some length”, apparently for the reason that the honorable Judge was not persuaded to grant bail on the merits of the case. Thereafter, within a few weeks, another bail application was moved before the same honorable Judge, on exactly the same grounds as before, and bail was granted. In this last application “the only difference… was a different learned counsel…” appearing on behalf of the Applicant. In appeal, Justice Khosa found this granting of bail to be “somewhat colorable”, since the established principles of criminal law demand that once a bail has been rejected (on merits), a new bail can only be moved in case “fresh grounds… not available or in existence at the time of decision of the earlier application” are pleaded.
Against this observation (“colorable exercise”) of Justice Khosa, a review was filed by the honorable Judge of the Lahore High Court, praying for expunction of the said remarks. Dismissing this review Petition, Justice Khosa’s judgment launches into a lengthy analysis of the relevant legal principles, and tackling each of them in detail, enunciates (unequivocally) the correct position in law, to now be followed by all subordinate courts across Pakistan.
Leaving aside the technicalities of law – which can frequently be argued in several different directions – the most important aspect of this judgment has been the willingness – ‘nay compulsion’ – of one independent judge of the honorable Supreme Court to hold others accountable for exercise of judicial power. It is all the more significant that this honorable Judge is Justice Khosa, one of the few judges who were frequently seen as a voice of reason (and dissent?), in the Eighteenth Amendment case. This principled stance of Justice Khosa – of reviewing and critiquing the exercise of judicial power – if emulated by others, will now be the key to judicial accountability in our land.
The truth is that our honorable judges, for all their respect and might, are still human beings who are prone to mistake and biases. Their judgments can frequently include a reflection of their passions and prejudices. Such passions and prejudices, however, find no place in law – which, in the words of Aristotle is “reason without passion”. Since, the past some years of jurisprudence by Iftikhar Chaudhry led Supreme Court has all but extinguished the possibility for us (lesser people?) to critique the conduct of judges, it is now up to the judicial stalwart to put their house in order.
This process, hard as it might be to imagine in a Supreme Court of yester years, is necessary for the supremacy and independence of judiciary. Without this sort of accountability of judicial conduct – by the judges themselves – we will soon find ourselves in a place of disintegrated judicial credibility.
Let us start by accepting that judges are not infallible, and nor should they be deemed as such. And then let us stand with Justice Khosa, to encourage accountability of judicial conduct, if not by the rest of us, then at least by the judges themselves.
The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.