Daily Times

The Chief Justice has reached beyond constitutional questions and matters of legal reasoning in his criticism of high courts’ judgments. He challenged the Lahore High Court for misreading basic evidence in the Khadija stabbing case. In the Asia Bibi case, he observed that the courts below failed to address “downright falsehood” in evidence. He questioned an Islamabad High Court ruling regarding the grant of bail to former prime minister Nawaz Sharif. He lamented over the performance of lower courts and high courts in ignoring important evidence or discrepancies in criminal cases.

The CJP has consistently expressed his dismay over the performance of our lower courts. He said, “if the lower courts could deal with the matters carefully, many cases would not come to the apex court.” He categorically stated that those who cannot dispense justice must go home. These remarks by the top judge indicate an urgent need for judicial introspection and reform.

The question remains: how can judiciary be purged from inefficient or incompetent judges? At the superior-court level, it may involve two judicial institutions outlined in our constitution: The Supreme Judicial Council (Art.209) and the Judicial Commission of Pakistan (Art.175-A).

The Supreme Judicial Council (SJC) is mandated to proceed against a judge of the Supreme Court or High Court if a judge is incapable of performing duties of his office for the reason of mental ‘incapacity’ or has been found guilty of ‘misconduct’.

The Supreme Judicial Council Procedure of Enquiry 2005 provides that”[i] ncapacity will include all forms of physical or mental incapacity howsoever described or narrated, which render the Judge incapable of performing the duties of his office”. It further provides that”[m] is conduct includes (i) conduct unbecoming of a Judge, (ii) is found to be inefficient or has ceased to be efficient” (Rule 3). The Procedure also includes conduct that “is in disregard of the Code of Conduct issued under Article 209(8) of the Constitution”. This Code prescribes that, “[i]n his judicial work a Judge [of the Supreme Court or the High Courts] shall take all steps to decide cases within the shortest time…through proper written judgments. A Judge who is unmindful or indifferent towards this aspect of his duty is not faithful to his work, which is a grave fault” (Article X).

It is high time, therefore,to strengthen the judiciary by enforcing the Code of Conduct and actualizing the provisions of “incapacity” and “misconduct” against those who are unable to deliver justice. There should be an across-the-board accountability-without any kind of victimization

Ex-CJP, Anwer Zaheer Jamali marked the Judicial Year 2015-2016 as “a year of judicial accountability”. The outgoing Chief Justice Mian Saqib Nisar admitted his failure to set his own judicial house in order. A sign of judicial introspection and accountability emerges from the statements of our new CJP amidst a new focus on accountability in the country. The legal fraternity has repeatedly urged that pending complaints before the SJC may be decided expeditiously. It is high time, therefore,to strengthens the judiciary by enforcing the Code of Conduct and actualizing the provisions of “incapacity” and “misconduct” against those who are unable to deliver justice. There should be an across-the-board accountability-without any kind of victimization. While inefficient judges should be held accountable; competent ones must be appreciated for their commitment and devotion to the cause of dispensation of justice. Additional training and support may also be provided to judges.

The Judicial Commission of Pakistan (JCP) is empowered to appoint those who are able to provide justice to the people of Pakistan. Article 175-A (appointment of judges) and the Judicial Commission of Pakistan Rules 2010 (the Rules) could be revised to make appointments more transparent and competitive manner.

The existing rules provide a Chief jJustice with discretion to nominate a candidate for appointment as a judge. These rules may be amended to ensure that this discretion is exercised objectively. For example, the first nomination may be made by a body of judges headed by a Chief Justice. Further, the whole process of appointment should require candidates to go through a multi-stage process of appointment. It may include short-listing of candidates on the basis of assessment reports, written test, and interview etc.

In the UK, for example, Jjudges of the High Court and the Supreme Court are appointed in an open competition by Tthe Queen on the advice of both the Lord Chancellor and the Prime Minister. The Judicial Appointments Commission of the UK recommends a candidate to the appropriate authority for appointment after considering reports written by the panels (comprising of judicial and non-judicial members), evidence provided in independent assessments, and any comments from statutory consultees.

In Pakistan, however, the appointments process remains opaque and non-inclusive, as the first nominationis made at the subjective discretion of a Chief Justice of a High Court. An effective institutional consultation is neither made with the parliamentary committeebnor with the bar. Even the basic attributes of judgeship i.e., judgment writing skills, legal reasoning, and judicial aptitude are not assessed in any systematic manner. The appointment of lower-court judges should also be made more competitive on the pattern of provincial and federal superior services.

Given the mystique and lack of competitiveness surrounding judicial appointments and persistent fragility in the removal of inefficient judges at each level, our justice system is weak. It is hoped that our current CJP ushers in an era of judicial reforms-starting with reforms in the appointment and removal of judges.

The writer is a Managing Partner at Jurist Panel™ -, Advocates & Legal Consultants

Published in Daily Times, February 17^th 2019.