Judicial accountability

At an earlier point of time, the major issue concerning the judiciary was the matter pertaining to independence, tenure, the appointment process, question of performance and integrity. There has now been a change in emphasis. Today judicial accountability, especially in the subordinate judiciary where appointments are neither constitutional, nor pass the rigorous test of both 18th and 19th Constitution Amendment has come to the forefront in our country.
No doubt this development has emerged primarily due to the free and independent Superior Judiciary in the country and the role of the press, electronic media and civil society. Such awareness is fast emerging in most developing countries such as India, Bangladesh and Malaysia as also in Pakistan.
At present judges are required to decide cases of great moment and importance effecting the common man's life more frequently than before. In fact, in the Untied States of America at the turn of century, the election of President Bush of United States had to be finally settled by the Supreme Court of America.
Judges are trustees and must give an account for their conduct. They should be drawn from a broad spectrum of society, but certainly not on political consideration. They should be better trained and more in tune with the current social and economic problems. Judicial Accountability and Judicial Independence are interdependent. No doubt to some extent, judges are already accountable as they are obliged to give reasons for their decisions, they are subject to critical appraisal by other Judges in Appeals, Intra Court matters, lately with some element of motives by legislators, interested organisations, NGOs and to some extent the general public. Of late, the attitude and perceptions have changed. Judges like politicians are not only scrutinised but are also criticised, within reasonable limits laid down by judicial pronouncements. Today people are not prepared to accept the judges pronouncements as a product beyond their comprehension. It will be correct to claim that Judicial Accountability is as indispensable counterbalance to judicial independence, for an unaccountable Judge can be tempted to be free to disregard the ends of justice that independence is expected to serve. Accountability can be fostered through the process of selection, discipline and removal within the framework of the Constitution and the statute in various judicial systems. Judges must assume the role of creating a sense of justice in society. No doubt judicial independence is but a means to the ends, namely justice for all as independence of judiciary is not for the personal benefit of the judges but for the protection of the people of this country.
It need not be over-emphasised that the rule of law to a large extent depends on the judges. Even if the decision or rulings, especially in labour law matters, that they make, are unpopular, judges have to exercise restraint, for otherwise the criticism will intensify. Judges as trustees must be imbibed with a sense that they act in an environment and therefore they should give an account for their conduct in that trust. Every country which is governed by the rule of law would be failing in its duty if it were to exercise this trusteeship without regard to the protection of the rights of all those who come within their scope. Chief Justice William Howard Taft of the United States of America has rightly remarked: "Nothing tends more to render Judges careful in their decisions and anxious solicitors to do exact justice, than the consciousness that every act of theirs is to be subject to the intelligent scrutiny of their fellow men, and to their candid criticism." Judges should themselves get to grips with the problems of independence and accountability for them to develop the attitude and mindset necessary for imbibing these values.
Judicial Accountability must be developed, consistent with the principles of judicial independence. Unfortunately courts in Pakistan, have not so far developed the doctrine of judicial accountability. Subordinate judiciary, especially the Labour Judiciary should be aware that they have to be accountable to the citizens, whose taxes fund their institution and who come to the Court to seek justice. There are two kinds of judicial accountability.
One relates to the requirement that judicial decisions must be accompanied by reasons and the other pertains to judicial tenure of office and removal for judicial misconduct. It is often claimed that Judges cannot be held accountable for making wrong decisions. Protection is essential to enable Judges to decide fearlessly. Without protection to independence of judiciary, the same will be severely compromised. It is doubtful whether judicial acts done in bad faith need to be nonetheless protected. It is not clear if specific legislation to deal with judicial accountability is enforced in Pakistan forthwith.
In the US, a Representative Ronald Branson drafted a bill titled "Judicial Accountability and Integrity" to deprive judges of immunity for deliberate violation of law, deliberate disregard of material facts, judicial acts without jurisdiction, and deliberate violation of the Constitution. It is not known if this bill has been passed and converted into law. If this Accountability law is suggested in Pakistan, it means the judiciary is being made accountable to the Parliament.
In the US Congress more than seventy-five percent members are lawyers. As against this, in our country, invariably fake degree holders hold office in our Parliament. Therefore it is not clear if such a law will be more beneficial to an independent judiciary or will result in judiciary being choked by legislature. Such an eventuality is unacceptable. At present the criteria is self-accountability by the judges themselves.
Lord Hailsham in his address given at Lincolns' Inn, London more than thirty years ago said: "Though a judge who is reversed in appeal ought always to question his own conscience about his handling of the particular case, the Judge who is never reversed ought to question his own conscience at least as closely as to this total performance." These observations have stood the test of time.
This extract should be with a caveat in our country that in upholding Law and Justice, Judges have a vital function in a pluralist society to make sure that diversity is respected and the rights of all are protected. Important change in the law of judicial accountability should come through decisions of the Courts.
In the case titled S. Muhammad Din and Sons Ltd versus Assistant Director Labour Welfare, case reported in 1968 PLC 562, a Division Bench of the Lahore High Court, judgements authored by a well known Jurist Justice Sardar Mohammad Iqbal in a case where the Industrial Court passed an impugned order in a hurry without applying its mind to the relevant provisions of law leading parties to litigation, the High Court judge ordered that the Industrial Court shall pay the costs of the petitioner and respondent. Thereafter more than forty three years have lapsed, yet no Superior Court has ordered costs on the Labour Court or Labour Appellate Tribunal for passing order in haste, ignoring Law laid down by the Superior Judiciary, ignoring evidence on record and the case law cited at the bar, thus leaving the Labour Judiciary to do what they like resulting in chaos and confusion in Industrial Relations System in this country.
Justice is portrayed as blind not because she ignores the facts and circumstances of individual cases, but because she shuts her eyes to all considerations extraneous to the particular case. This is all the more so to be applied in Labour Law cases involving management on the one hand and labour on the other.
Lord Bingham, Lord Chancellor and Lord Chief Justice of Britain in his theses "The Business of Judging", OUP 2000 P. 74 formulated a modern paraphrase of Oath of his office thus: "it might perhaps be that a Judge must free himself of prejudice and partiality and so conduct himself, in accord, to give no ground for doubting his ability and willingness to decide cases coming before him solely on their legal and factual merits as they appear to him in the exercise and objective, independent and impartial judgement."
If respect for the subordinate judiciary is to be regarded as integral to the maintenance of the rule of law such respect should be spontaneous, enduring and real to the degree so that it is earned rather to the extent that it is commanded. Judicial responsibility, accountability and independence are in every sense inseparable. They are and must be embodied in the institution of the judiciary. If subordinate Court Judges are not accountable to the people and perceived to be so, they will fail in their mission to bring justice.
Conventional wisdom requires independence of judiciary be secured. In 1985 United Nations adopted the "Basic Principle on the Independence of Judiciary". This charter recognized the importance of enabling the judges to be free to decide matters before him or her without influence, inducement, pressure direct or indirect either from the executive, legislatures, fellow judges, parties to litigation or from any quarters or for whatever reasons.
In a society based on the rule of law and democratic principle of governance, every power-holder in the final analysis, is accountable to the people. Legislatures are directly accountable to the electorate. Executive is indirectly accountable to the people through elected Legislatures. There is therefore no reason why the judiciary should not individually or collectively be accountable to the community for due performance of functions vested in it. Any power is given on trust. Judicial power has no exception. If the judge is to be held accountable it should be consistent with the principle of judicial independence.
A right balance between autonomy in judicial-making and independence from external forces on the one hand and the accountability to the community on the other has to be achieved. In its meeting in Vienna, Austria in April 2000 under the United Nations Centre for International Crime Preventions, a Judicial Group on strengthening judicial integrity took two very important decisions. First, it recognised that the principle of accountability demands that the judiciary assume an active role in strengthening judicial integrity by effecting systematic reforms, second it recognised the need for universal accepted judicial standards consistent with the principle of Judicial Independence. In February 2001 in Bangalore, the now famous "The Bangalore Draft Code of Judicial Conduct" was adopted. This is the first and major step towards evolving global standards of judicial behaviour.
Pilot programme designed to strengthen judicial integrity through reforms formulated and implemented by the judiciary in consultation with all the stakeholders was introduced. Initially this was done in Sri Lanka, Uganda and Nigeria. Bangalore Draft Code of Judicial Conduct was prepared by judges using as reference large number of existing national code and international instruments.
Subsequently United Nations Centre on Human Rights has also referred to the need for such International Code containing universal accepted judicial standards capable of being used not only as guides but as a reference for testing and revisiting existing national code prevalent, if any, in each country. The concept of Independent Judiciary originally came to the fore through the efforts of one valiant Judge namely Sir Edward Coke who even went to the extent of refusing King James interference by proclaiming: "I will do that which it shall befit a Judge to do".
In neighbouring India, Chief Justice A.S. Anand of the Supreme Court of India suggested formation of a Commission to reframe the law and make them more simple and clear in relation to the Executive interference with the Judiciary. In India impeachment of Judges is effected by moving the Parliament. One school of thought is that let the judiciary itself clean its own stable. With this premise, let the judiciary itself reaffirm old values instead of seeking new prescription. The second code of conduct or guideline or accountability of the judiciary be restricted to input purely from the judiciary itself of public interest.
In USA each of the 50 States have Commission or Committee or Board whose purpose is to examine a Complaint of Judicial misconduct of their State Judges. Mechanism of complaint against Federal Judges was enacted by US Congress in 1980. Congress even created a National Commission of Judicial Discipline and Removal to investigate and study what the problems is and issues relating to judicial discipline.
However, certain guidelines for formulating scope and working of such Commission if contemplated to be adopted are as under:
a) Judge has to consider the view of public and Legal Fraternity to ensure that all aspects of problems are dealt with;
b) Judiciary should not unnecessarily step in the tradition of various aspects of judicial independence and should not hide behind tradition so as to prevent any change;
c) Conflict of interest and guidelines should come from within the judiciary and should not be superimposed
No doubt at times, Judges expressed themselves whilst striking down the government actions or decisions by strong language. Human nature is that politicians dislike being told publicly that they are wrong or even worst, that they have acted contrary to law. Politicians preferred not to understand the process and counter-threats were even given by Chief Minister of the Maharashtra State in India, as reported in English Daily "The Times of India", when he even went to the extent and claimed: "Who is running the country, the government the courts or the media,. Let the Judges behave as a Judge. They should not use objectionable language. If they do so it will not be possible to treat them with respect." In Pakistan every now and then we hear more or less similar though not necessarily in the same language, words used by certain lawyers belonging to a political party clearly indicating an attempt on the part of the Executive to put the judiciary under pressure. Lord Donaldson meets these threats with the reply: "Judges are without constituency and answerable to no one except to their conscience and the law."
Reverting back to the Bangalore Draft Code of Judicial Conduct the same provides for Judicial Independence being a pre-requisite to the rules of law and a fair trial. It provides for impartiality being the essence to the proper justification of judicial office. Integrity being closely associated with propriety and competence and diligence were made essential pre-requisite to the due performance of judicial office. Likewise proprietary and appearance of propriety was made essential to the performance of all of the activities of a judge apart from ensuring equality of treatment of all before the Courts.
This Bangalore Draft Code was placed before the roundtable meeting of the Chief Justices of the Supreme Courts and ultimately resulted in what is now known as the "Bangalore Principle of Judicial Conduct." In Pakistan let this task of judicial accountability of Labour Judiciary to start with, be adopted based on the principle of the 'Bangalore Principle of Judicial Conduct."