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Saturday Nov 04 2017

Legal eye: Cloistered virtues

It is inexplicable that in a democracy criticism of the judiciary or military should be prohibited

Idealists within the PPP were the only ones seeking across-the-board accountability. And they lost out. The demand for including judges and generals within the new accountability law has now been dropped. That’s the way the cookie crumbles. If we step beyond our historical context where these institutions have wielded the power to ‘control’ democracy, it is unfathomable that there is complete political consensus that the tremendous power exercised by these two institutions must remain outside the scope of public accountability.

Is there something sacred about the power vested in judges and generals that they ought to be treated as holy cows? Devoid of our historical context, it is inexplicable that in a democracy criticism of the judiciary or military should be prohibited. Our constitution fetters our freedom to speak freely and critically. One hopes our successor generations will be uninhibited enough to amend Articles 19 and 63(g) of the constitution and erase the duplicity that treats some state authority as sacrosanct and the rest as fair game.

Conceptually, citizens are allowed to hold public officeholders to account for exercising delegated state authority on their behalf. That functions of judiciary and military are hallowed is neither a guarantee against abuse of power vested in them, nor reason to carve them out of a public accountability system. The military exercises the state’s police power. Other than the logic of power (it has directly ruled this country for almost half of its existence and still remains the most powerful institution), there is no reason to create an exception for it.

The judiciary’s case is even weaker. As an institution interpreting and enforcing the law against citizens and state institutions, it has tremendous power. A judge can take away from a fellow citizen his most foundational rights: rights to life, dignity and equality. Whether the scope of fundamental rights expands or shrinks and whether rights are enforced without fear or favour depends on the thinking and actions of judges. Judges aren’t gods. They are fallible like the rest of us, but they discharge godly functions. Such functionality demands greater scrutiny, not less.

Judges and generals are not elected. They face no political accountability. That leaves us with the two remaining modes of accountability: legal and moral. They come from amongst us. Their moral core is no better or worse than that of the rest of society. This makes moral self-accountability inadequate. Thus when we place them beyond the pale of legal accountability, we essentially declare them unaccountable and endorse institutional apartheid.

The counter-arguments are that these institutions have a system of robust internal accountability and exposing them to public accountability could undermine their functional autonomy. Both arguments are flawed. If the public accountability system (overseen by the judiciary) is abusive, why should anyone be subjected to it? The solution is to make the system just for all and impervious to abuse instead of creating carve-outs for members of the more powerful state institutions.

Two, notwithstanding the claim that judiciary and military have robust internal accountability systems (backed by scant evidence re superior court judges and generals), publicly holding to account the manner in which state authority is exercised in the name of citizens is a right of citizens. That judges and generals sit in big boys’ clubs and hold their own to account isn’t good enough, even if true. The ‘right to know’ how the errant are held to account, and for what, is a constitutional right. This is no private matter, but one of public interest.

If accountability is through secretive institutional arrangements, how are heads of these institutions to be held accountable? Let’s assume that an army chief or chief justice is corrupt or liable for abuse of authority. How will he be held to account in an internal accountability scheme that he oversees and controls?

Our constitution has created a Supreme Judicial Council (SJC). But its inefficacy is evident from the fact that over the course of our history only a couple of times have judges been held to account. Hardly any jurisprudence has been developed on what amounts to judicial misconduct. Judges who lay down law everyday on abuse of authority by other state officials have laid down almost no law on what constitutes abuse of authority by them and what must become of those who do.

The Supreme Court is currently hearing a constitutional challenge by a high court judge who has been asked by the SJC to show cause why he should not be removed for judicial misconduct. The judge wants his inquiry/trial to be public. The SJC insists it must be behind closed doors. The justification for such secrecy has traditionally been that it is essential to protect the dignity of the judge, pending outcome of accountability proceedings, as he is still in office, since that is essential to maintain sanctity of the judiciary and public faith in it.

Jeremy Bentham famously said that “publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.” Lord Atkin held in Ambard v Attorney-General for Trinidad and Tobago that “justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful…comments of ordinary men”. Wasn’t it due to this settled principle that Article 10-A was introduced to guarantee everyone’s constitutional right to fair trial and due process?

Justice Black explained (in re Williams): “Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognised as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.” Does transparency enhance public faith in dispensation of justice or secrecy?

In 1998, Keane J stated in The Irish Times v Murphy that, “justice must be administered in public, not in order to satisfy the prurient or inquisitive, but because, if it were not, an essential feature of a truly democratic society would be missing…The most benign climate for the growth of corruption and abuse of powers, whether by the judiciary or members of the legal profession, is one of secrecy.”

Ironically when we didn’t have Article 10-A, our judiciary read principles of natural justice in all statutes and held the executive accountable accordingly. But since the introduction of 10-A as a declared right, the judiciary has circumscribed its scope and that of right to information, especially when it comes to exercise of authority by the judiciary and dispensation of justice ie in endorsing military courts, keeping deliberations around judicial appointments secret, holding SJC proceedings secretly and refusing the public the right to know what references are pending against judges.

If the media has already revealed the charges levelled against accused judges, whose sanctity would in-camera proceedings protect, especially when the accused are seeking public accountability? The sceptical view is that the real reason for secrecy is the apprehension that accused judges might allege or reveal, out of pique, the state of disrepair within the institution and selective employment of principles to cut to size those who fall out of favour. Wouldn’t transparency dispel such scepticism and strengthen public faith in the ability of judges to hold their own to account?

The sense that the judiciary shields its accountability and decision-making processes from public view because facts, if disclosed, could attract criticism is destructive for public faith in the judiciary. It is beyond debate that sanctity must attach to the judiciary if it is to administer rule of law. But it cannot be secured by secrecy coupled with threat of use of contempt law as a weapon. Sanctity of the judiciary should need no enforcement when judges conduct themselves in a manner that inspires public confidence.

The writer is a lawyer based in Islamabad.

Email: [email protected]

Originally published in The News

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