Refoming the process of removal of judges

When the country’s Constitution was being drafted, little would its framers have imagined that a judge of a superior court, saddled with tremendous responsibility, would one day rise to such prominence and position of influence which has been demonstrated ever since the suspension of the then incumbent chief justice in March 2007. The superior judiciary, since then, has wielded unprecedented power to become the fulcrum of our fledgling system. The rise of the judiciary has had obvious detractors too, some of whose advances have been thwarted and stifled by the judiciary. However, an arguably legitimate criticism of the judiciary, even from its own rank and file and the bar, has centered around the lack of self-accountability and the defects in the prevalent system of accountability which is taken recourse to in the form of Article 209 of the Constitution and the procedure made thereunder.

Most jurisdictions, including ours, recognise the judiciary’s independence and provide that a judge shall not be removed, except in accordance with the procedure stipulated in the applicable law. While this generally appears acceptable, there is reason for discord and clamour when there is a comparison between the stipulated procedures in vogue in a number of jurisdictions. As far back as 2005, the Supreme Judicial Council in Pakistan formulated the Supreme Judicial Council Procedure of Enquiry, 2005 for regulating all inquiries to be undertaken by the Supreme Judicial Council pursuant to Article 209. The Procedure of Enquiry prima facie covers all relevant aspects without any specifics. The lack of codification, thus, may fall short of providing an accused — an honourable judge in such instances — the cushion and comfort of knowing that his reputation, credibility and service as a judge shall be based on a comprehensive set of principles rather than the vague concept of the principle of natural justice which would be devised by five peers in their own wisdom and logic.

In neighbouring India, the powers of removal of a judge are now subject to parliamentary oversight/input since a house of parliament has to pass a motion to refer the investigation into the misconduct/incapacity of a judge to a three-member committee, albeit two of whom are judges. In India an accused judge pursuant to the Judges (Inquiry) Act of 1968 is statutorily granted certain rights, including the right to cross-examine witnesses, adduce evidence and be heard in defence. More so, the committee has the powers akin to a civil court in respect of summoning and examination of witnesses, requiring the production of evidence, recording of evidence, etc.

In Australia, federal judges are removed upon the passage of a motion by both houses of parliament praying for removal on the ground of proved misbehaviour or incapacity. However, prior to such a motion, the chief justice or his nominee judge carry out preliminary investigations which may lead to the constitution of a conduct committee of the judiciary. If the chief justice, assisted by the findings of such a committee, considers the existence of viable grounds justifying removal, the chief justice may approach the attorney general to initiate the process of parliamentary removal, who can then appoint a commission to conduct a public hearing and determine whether grounds for removal exist or not. The system of accountability of judges which catches one’s fancy is New Zealand’s Judicial Conduct Commissioner and Judicial Conduct Panel Act of 2004, which lives true to its stated purpose of, inter alia, providing a robust investigation mechanism and a fair process that recognises and protects the requirements of judicial independence and natural justice. To augment the stated objects of the Act, a judicial conduct commissioner is appointed who investigates complaints about judicial misconduct and, if so warranted, may recommend to the attorney general that a judicial conduct panel be appointed to conduct a public hearing, unless decided otherwise for compelling reasons, inquiring into the allegations. Upon their recommendation, the attorney general may take steps to initiate the removal of the judge who is ultimately removed upon an address of the House of Representatives’ by the sovereign or the governor general.

A review of other Commonwealth jurisdictions would further reveal that parliamentary oversight is now commonplace not only in the appointment of judges but also in their removal. So, why has Pakistan not been able to evolve the mechanism of removal of judges especially when the procedure of appointments was overhauled through the eighteenth constitutional amendment? Is our legislature anticipating a judicial introspection of the process of removal of judges or do they simply not want to upend the judiciary? Today when the Supreme Judicial Council is apparently regularly hearing, albeit belatedly, references against at least four honourable judges of high courts, questions should be asked, after due credit having been given to the current dispensation for actually following through unlike their predecessors, about the prolonged delay in adjudication of such references, some of which are pending for more than two years.

As established by the Privy Council in their 1994 judgment delivered in Rees vs Crane, a judge’s ability to command the confidence of litigants is paramount in the delivery of justice. So, can a judge entangled in a myriad of allegations and having to defend himself over a period of years command the respect of litigants? Further, does the delay not create an impression in the minds of the public that the pace of adjudication is in fact deliberate to save a peer or provide him a way out? There is also the rather interesting facet of clandestine hearings which are a double-edged sword, if there ever was one! On the one hand is the notion that due to peers of a judge adjudicating in his cause, he is being protected whereas on the other hand such secrecy makes a judge susceptible to murmurs of various allegations forming part of a reference against him– which may never have been — and, resultantly, erode his moral credibility. On the neutral plain, if the allegations and resultant proceedings against a sitting prime minister can be conducted in the public domain, then why should judges have the refuge of closed-door hearings?

There are several other observations and questions being raised in relation to the accountability of the judiciary. This reflects the gravity of the issue; after all, post-2007 the judiciary has now attained incomparable prominence and enjoys a pivotal role in the state machinery. This requires exercise of greater care and caution, and a cohesive codified system of not only appointment of judges but also the procedure for their removal. Would it then be fair to expect our parliament to come out of its self-imposed exile and legislate on judicial reforms, including the process of removal of judges or would a judicial messiah initiate a judicial review of the extreme urgency of a comprehensive judicial reform? To quote Winston Churchill: “It is not enough that we do our best; sometimes we must do what is required.” Now, more than ever!

Published in The Express Tribune, October 18^th, 2017.

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