Daily Times

I remember I had once been having a discussion with a former Supreme Court Justice about the state of the judiciary. The man is remarkable, and considered by me to be one of the most honourable judges to have graced the Supreme Court. He was and always will be my mentor.

This discussion was taking place well after the restoration of an ‘independent judiciary’, with its glory being in full display. I had been telling him that the biggest threat to the judiciary is not any external influence, but rather its lack of internal accountability. He rebuffed me by saying that there was internal accountability, but it simply was not apparent to the public. To this day, of the many things we discussed, this one comment gnaws at me.

Although stated in defence of the system in place, the statement was the exact reason why things were not right, and aren’t even now. The very fact that we did not know what went on in such proceedings was a part of the problem, and this was giving rise to a series of questions. For example, how can an accountability process shrouded in secrecy ever be free of suspicion? How can an institution censure others for lack of transparency and inability to take action against black sheep amongst them, when it can barely tolerate the mere mention of impropriety in its own institution?

How can the system ever be improved if the judiciary is not seen to be responsive to criticism, complaints, and the pain and helplessness of litigants who have been at the receiving end of discredited judges?

How can non-transparent disciplinary proceedings, which allow judges to resign before sentencing, and then purportedly keep their pensions, and in all likelihood, their ill-gotten gains, ever be a deterrent for any other members of the judiciary? Would it not merely serve to embolden them?

How is it that the concept of ‘justice not only being done, but must be seen to be done’ applies to all but the judiciary itself? Surely this great institution, which mandates the public needing to see justice take place so as to repose faith in its existence can understand how having different rules for itself can be seen in a negative light?

How will the judiciary, with a straight face, convince a concerned litigant that everyone is equal before the law, when all they can see is the judiciary repeatedly refusing to open up its internal disciplinary proceedings and show to the world that it has nothing to hide?

How can the system ever be bettered if the judiciary is not seen to be responsive to criticism, complaints, and the pain and helplessness of those litigants who had been at the receiving end of discredited judges? These and many other questions remain to be answered by the proponents of the closed off disciplinary system. What has been afforded by them, however, are a series of justifications as to why proceedings should not be opened up.

They often say that opening up disciplinary proceedings to public scrutiny would irreparably damage the reputation of a judge who was wrongfully accused. However, the argument seems somewhat problematic. The very purpose of a transparent accountability process is to show the allegations to the world for what they really are, that is, if false, such allegations would be unequivocally laid bare on the touchstone of such transparency. If anything, the lack of transparency in the process would have a greater adverse effect on the reputation of judges, who even if found to be innocent, would still be subject to suspicion in the public.

It has also been argued that in corruption or misconduct being discovered and made public, the judiciary as an institution would come into disrepute for maintaining such individuals in its midst. However, the argument is non-sensical, and perhaps even circular. To sacrifice transparency to save repute is tantamount to sacrificing the citizenry to save the arbiter of their disputes. And such arguments are also somewhat ironical, considering that transparency is the one thing which could ensure that the moral authority of the judiciary to adjudicate is preserved.

In any case, the concerns relating to the collective and individual reputes of the judges, as epitomised by both arguments above, can be easily neutralised and addressed by putting in place a system in which the media is prohibited from commenting or reporting on such disciplinary proceedings, whilst ensuring that all manuscripts, documents, and records of such sessions are nonetheless publicly available on their website for public and private perusal.

As is clear from the above, for every justification in support of a non-transparent system, there shall arise multiple questions as to the purposes of such a closed system. A progressive judicial set-up with regressive practices is a dichotomy which will dissuade even the most ardent of supporters from unflinching support. And all that the ardent shall be left with, will be questions of what, why, who, and ‘how’.

The writer is a practicing lawyer based in Karachi. He tweets @basilnabi and can be reached at basil.nabi@gmail.com

Published in Daily Times, October 14^th 2017.