Daily Times

In the 1924 R v. Sussex Justices case, Lord Chief Justice Hewart laid down one of the world’s most well-known dictums: “Justice should not only be done, but should manifestly and undoubtedly be seen to be done”. In the same year, the American Bar Association (ABA) put forward the ‘Canons of Judicial Ethics”. Canon 4 of this document stipulates: “A judge’s official conduct should be free from impropriety and the appearance of impropriety; he should avoid infractions of law; and his personal behaviour, not only upon the Bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach”.

Article 184(3) of the Constitution of Pakistan lays out the original jurisdiction of the Supreme Court and establishes the powers of the Supreme Court to deliver such judgments and orders that relate to questions of “public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II” of the Constitution. No reading of this provision can prompt one to arrive at the conclusion that the Supreme Court has any authority to impose policy decisions upon the executive or the legislature.

In Pakistan’s judicial history, some honourable members of the Bench have, through their professional and personal conduct, severely tarnished public confidence in the independence and impartiality of the judiciary. Any legitimate criticism of this behaviour has been deemed an effort aimed at undermining the dignity and sanctity of the Bench, without necessary attention being paid to the fact that improper judicial conduct itself is what is undermining the stature of the Bench.

The theory and practice that has evolved on judicial impropriety ultimately arrives at one focal point: that judges must act, at all times, whether in their professional or personal capacity, in a manner conducive to promoting public confidence in the integrity and impartiality of the judiciary. The United States Supreme Court, in Liteky v. United States (1994), encapsulated this idea rather aptly: “In matters of ethics, appearance and reality often converge”.

In 2011 SCMR 1743, where the current Chief Justice was a Justice presiding over the matter, the judgment provided that the “Supreme Court does not interfere in every issue of public concern under Article 184(3) of the Constitution but only where the action/order of the executive authority raises the question of enforcement of a fundamental right”. Moreover, the Honourable Supreme Court clarified that while “it is painful to sit back and watch the successive marches of folly”, “the constitutional constraint reflected in the trichotomy of powers obliges the Court to observe judicial restraint”. Unfortunately, the Honourable Chief Justice seems to have neglected his own dictum today, with his increasing involvement in the dam fund, impromptu visits to hospitals and controversial interactions (at home and abroad) with politically-affiliated persons.

The theory and practice that has evolved on judicial impropriety ultimately arrives at one focal point: that judges must act, at all times, whether in their professional or personal capacity, in a manner conducive to promoting public confidence in the integrity and impartiality of the judiciary

The Women’s Action Forum (WAF), along with several members of civil society, filed a reference before the Supreme Judicial Council in October this year, against the Honourable Chief Justice for his “remarks and actions” that have “politicised the judiciary”, breached the principle of separation of powers and “demonstrated negligence and inability to adjudicate in any independent, neutral, non-partisan and impartial manner”. This reference clearly aspires to hold accountable the Honourable Chief Justice who has repeatedly, and without remorse, violated the Code of Conduct for Judges of the Supreme Court (2009).

Article III of this Code clearly establishes that judges are “to be above reproach” in all matters, whether “official” or “private”. Further, Article V stipulates that judges “should not seek more (publicity)” or “engage in any public controversy”. Even “extrajudicial duties or responsibilities, official or private should be generally avoided” by judges, as per Article VII of the Code.

It is, therefore, with due respect that the Honourable Chief Justice be reminded not only of his own dictum pronounced in 2011 but of the resignation of Justice Abe Fortas from the US Supreme Court in May 1969. Justice Fortas had reached an agreement with the Wolfson Family Foundation to assist in the organisation and planning of educational and other undertakings of the Foundation for a fee of $20,000. Loius Wolfson, the director of the Foundation, was being investigated by the US Securities and Exchange Commission at the time that Justice Fortas had received this fee. Although Justice Fortas returned the fee and cancelled the agreement after Wolfson was indicted (for the sale of unregistered stock), he eventually had to resign not because he had committed any wrong, but because his conduct was no longer above reproach.

Similarly, taking into consideration political statements made by the Honourable Chief Justice, as well as his interactions with politically-affiliated persons (most recently, in London), there is no question as to whether this constitutes conduct disrespectful to the dignity of the Bench. Moreover, the Honourable Chief Justice had an obligation to avoid raising, through his words and conduct, even the mere suspicion of improper conduct, whether professional or personal.

There are pictures circulating on social media of the Honourable Chief Justice dining in London with Mr Aneel Mussarat, a British-Pakistani entrepreneur known for his close friendship with Pakistan’s Prime Minister. As if it wasn’t improper enough that the head of the judiciary of our country was engaging in fundraising for a dam project, the circulation of these pictures makes it impossible for the public to have even the slightest shred of confidence in the Honourable Judge’s ability and will to deal with matters before the Bench in an unbiased and impartial manner.

None of the above is meant to assert or imply that the Honourable Chief Justice has actively engaged in any wrongdoing but it is meant to argue, in no uncertain words, that he has given more than enough evidence of impropriety to warrant his removal or resignation. This is exactly why judges are discouraged from engaging in conduct of this kind in the first place. How can the senior most judge of the country be trusted to act as a neutral arbiter in matters before him when he is consistently giving out political statements and enhancing his interactions with persons associated with the ruling party? In no civilised country of the world would such conduct go unchecked. It is, with due respect to the Honourable Chief Justice, conduct unbecoming of the senior most judge of the country and quite frankly, damaging to the image of the judiciary as a whole.

The writer is a lawyer

Published in Daily Times, November 23^rd 2018.