Decisions Can Wait

I once complained to the Chief Justice of the Indian Supreme Court, P.N. Bhagwati, that there are no legal digests from Pakistan containing the decisions of our Supreme Court and the High Courts either in the Indian Supreme Court or the Delhi High Court libraries. As opposed to this, the law libraries in Pakistan are filled with All-India Reporters and other Indian digests. Mr Bhagwati is a secular and liberal unbiased person. However, he without a pause asked me if I had read the Pakistani judgments. He said in Urdu that the courts in Pakistan have a 'waxed nose' which can be bent in whichever direction the government desires them to bend. As a result, there is hardly any substantial questions of law discussed in these judgments.

I felt really bad but Mr Bhagwati did not know one thing about our judgments. Many of them are not even written by the Judges themselves. I have recently filed a reference against a Judge of the Islamabad High Court on the grounds that many, if not all, his judgments are written by his personal secretary. Sometimes, he just tells him about his decision and the poor secretary then ends up coming with strange arguments to justify the outcome which sometimes he may have no idea about. As if this is not enough, he is not even a lawyer.

Such things do not remain a secret and resultantly almost everyone concerned with the Islamabad High Court knows about it, including the Justice's fellow Judges. Many lawyers in fact call the Secretary also as the Justice. It should not be surprising that some of the Judges even in the Supreme Court know about it.

The tragic part is that this has been happening for the past five years and no step has been taken to stop this serious lapse which is totally unconstitutional and unlawful.

Obviously, this Justice is not the only one doing it in Pakistan and there may be others like him. But no steps are being taken as the whole legal system is embroiled in a tangle. The lawyers are usually the first ones to find such things out and they always are full of stories, some of them juicy ones as well, relating to what is happening on the other side of the bench. But they cannot air them as they have to appear in front of the same justices asking for relief for their clients. The Bar Associations are extremely politicised and act more as political entities than as professional bodies meant to resolve the issues of the legal fraternity. And to top it all, the courts enjoy the power of contempt which can be used to put a stop to criticism of any Judge.

For instance, recently the Supreme Judicial Council started to consider references against two sitting Judges of the Lahore High Court. The media started to report the charges and the deliberations of the Council which is expected of it and which is its constitutional and legal right. However, the Council issued a directive asking the media to desist from reporting matters that were under consideration by the Council. This put a stop to all reporting.

Now we will be unable to find out about the proceedings till the outcome is revealed. This may linger on for months or years. It may surprise many that dozens of references have been filed against various Judges of the High Court and Supreme Court but they are never taken up. It is thus a breath of fresh air that the current Chief Justice of the Supreme Court has repeatedly been expressing his intention to bring accountability to the judiciary and to reactivate the Supreme Judicial Council. The consideration of references against the Lahore High Court Justices is the first step in that direction but we all now await the outcome without ever finding out about the interim proceedings.

Of course one may argue that the Judges should not be criticised until the charge against them can be proven as it hampers their work. But this analogy then applies to every public functionary, be it the president, prime minister, cabinet minister, parliamentarian, bureaucrat or a general. Why should only the judges be protected from allegations being made public against them unless they are proven?

The fact is simpler than this: there is corruption in the judiciary just like there is in any other institution. The judiciary started with a legacy of power of contempt to guard itself and it is unwilling to let go of this protection. The result is for everyone to see: in 67 years of Pakistan's independence, we have been unable to dismiss a single superior court judge through the legal route. The maximum that has happened is to corner the judge and then get him to resign which is an honorable manner to get rid of him and which incidentally also has seldom happened. And it is some honour as he draws a monthly pension of Rs 600,000 till death, and many other emoluments go along with it which run into crores. As for the decisions by the courts alluded by Justice Bhagwati, they can wait.

Anees Jillani is a lawyer based in Islamabad.