Judicial inductions based on merit, favouritism: ex-SC judge Maqbool Baqar

• Former SC judge says corruption persisted in judiciary.
• Says chief justice doesn't have absolute power to elevate, induct or hold judges accountable. 
• Senior judges should have role in formation of SC benches: Baqar.

KARACHI: Former Supreme Court judge Maqbool Baqar has said that the judges are not inducted to the top court on the basis of merit as nepotism, favouritism and the sacrifice of merit factored in, The News reported. 

His comments came while speaking during the Karachi Literature Festival’s session titled “Rising Expectations: Pakistan’s Judiciary in Focus,” moderated by senior lawyer Faisal Siddiqui on Sunday. 

The former judge said that corruption persisted in the judiciary but to what extent was anybody’s guess.

“The 18th Amendment calls for a participatory process for the induction of constitutional court judges with the application of collective wisdom,” said Baqar. 

“The Constitution doesn’t give the chief justice absolute power to do whatever he desires when it comes to elevation, induction or accountability of judges," he added. 

During the seminar, Baqar said the Constitution doesn’t give the chief justice absolute power to induct, elevate or hold a judge accountable.

He said an independent judiciary plays an important role in society’s development, well-being and welfare, adding that the judiciary could strengthen and become impartial and independent if it functioned according to the Constitution.

He maintained that a judge who was strong and committed and had a vision, conviction and knowledge would never come under any influence. “If you have a skeleton in the cupboard, lust for power, money and fame and biased, then you are inclined to those who wield power,” he added.

He said the chief justice initiates the process of nomination of judges on his own though most members of the judiciary and Judicial Commission of Pakistan believed that it is not an exclusive power and that they should also be consulted when names are proposed.

Baqar opined that judges, who were involved in any unscrupulous activity, tended to please people with power and authority and never confronted or offended them and if any complaint was filed against them, it was swept under the carpet. He said he could name people “who had been notorious but still remained at the helm of affairs and had a say in administrative decisions, the formation of benches and assigning of cases,” but that would be a personal attack.

He said the chief justice’s exclusive discretion regarding the formation of benches ought not to be exercised the way it was being done and at least senior judges should have participation in them, adding certain benches with a specific approach heard sensitive cases, including those of political nature.

'Institution of victimisation'

Lawyer Hamid Khan said the current mechanism of accountability of judges dated back to the 1962 Constitution under which the Supreme Judicial Council (SJC) was formed having complete representation of judges to decide how it had to proceed against a judge. 

Previously, he added, the president could only send a reference to the council against a judge on the recommendation of the prime minister, but sending a reference against a corrupt judge was out of question because he would always be obliging and pleasing the government.

In 2003, he said, the 17th Amendment empowered the SJC to also proceed against a judge on the basis of a complaint but then judges started protecting each other. “Complaints against judges with tainted reputations are received but they never come to light nor action is taken and on the contrary, judges who are not on good terms either with the establishment or judges at the helm of affairs are punished.

“The Supreme Judicial Council has been rendered completely ineffective. It has seemingly become an institution of victimisation rather than accountability in the past decade and a half,” he opined.

Khan said parliament had been unable to assert its role and had been weakened and rendered irrelevant over a period of time, shifting all the burden onto the judiciary.

Meanwhile, Pulvasha Shahab said the judiciary could not fulfil its duty of delivering justice to all if it was male-dominated because then there were ideas and perspectives that would be absent from its jurisprudence.