London—Chief Justice Pakistan (CJP) Iftikhar Muhammad Chaudhry arrived here to receive International Jurists Award 2012
ADDRESS OF THE HON’BLE CHIEF JUSTICE OF PAKISTAN MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY ON ACCOUNTABILITY AND JUDICIAL REFORMS AT INTERNATIONAL CONFERENCE OF JURISTS 28-29.05.2012.
Hon’ble Chief Justices;
Learned Judges;
President of the International Council of Jurists;
Learned Members of the Bar;
Distinguished delegates;
Ladies and Gentlemen:
Accountability is a key feature of good governance and effective administration. It is inbuilt within the system of democratic dispensation. It operates as a check on authorities and institutions, to prevent arbitrary decisions and abuse of powers. In the words of James Madison, in forming a government which is to be administered by men over men, you must first enable the government to control the governed; and in the next place oblige it to control itself. When power and authority is given to any one then a mechanism to control the misuse of such power is also to be provided for its safe administration. In common parlance, it is called accountability, which is a synonym of responsibility, justice, good governance, transparency and so on and so forth. However, it is difficult to explain its various forms and manifestations. It is such an ever expanding concept that every author has set out its own approach to recapitulate the connotations of accountability. Whatever be the common definition of accountability, it subsists when there is a relation between the person and the organization in connection with the performance of some duty.
Accountability is one of cornerstones and prime traits of democratic governance, which serves as an important pillar of good governance. The reflection of accountability can be traced in all the three organs of the State. Executive controls the steering wheel. It decides which way the country will go. The legislature controls the fuel supply. It votes the money to fund the policies which the executive proposes. The judiciary controls the brakes1.
Independence of judicial institution is essential for maintaining the confidence of the public in the judicial system and this independence can be best safeguarded by the judges themselves through adjudication of matters on merit and without fear and extraneous consideration. The
1 Judicial Accountability (www.venice.coe.int/.../McNally_JUDICIAL_ACCOUNTABILITY.pdf)
judiciary is not an exception from the process of accountability; however, the concept of judicial accountability is different from the other organs of the State. The judicial institution like other institutions of a state is accountable for its performance for safer administration of justice. An upright and efficient judiciary no doubt commands the respect of the people in society. I must say that judicial accountability is the bedrock of independence of judiciary. Both are wheels of the same chariot, one cannot be separated from the other. The constitutions of various states have provided enormous powers to the judiciary. Over the arbitrary powers of the executive and legislature, they have the power of judicial review being an independent third pillar of the state. They are the guardians of the constitution and being guardians, they have the power to say “No” to the excessive or arbitrary exercise of authority of other organs of the state, to prevent their onslaught or incursion into the domain of the other.
The judicial institution is placed at a higher pedestal as compared to the executive or the legislature. This is an account of dominant role assigned to it by the constitution. The constitution therefore provides for independence of judiciary. The rationale for the same is to enable the judges to discharge their duty fairly and without undue influence or pressure. The concept of judicial accountability operates at different levels. Firstly, personal conduct; Secondly, decision making and lastly, as an institution as a whole. On all these levels, there must be a set mechanism of accountability. Judicial accountability is an essential principle of justice system for fostering rule of law. The claim of the judiciary to be independent cannot shelter it from responsibility and scrutiny. However, judging inevitably involves discretion, and no discretionary power, no matter how well-intentioned its holder may be, can be thought of as unlimited and uncontrolled2. Judicial independence and impartiality must be properly constrained. This constraint is traditionally dealt with under the rubric of judicial accountability3. Such a check is exercised by the superior appellate forum, as provided by law and regulated by judicial procedure. Different constitutions of the world have dealt with the issue of accountability in different ways. Somewhere it came out through parliamentary impeachment and elsewhere through executive or judicial forums.
In Pakistan, provision of the inexpensive and expeditious dispensation of justice is the constitutional responsibility of the State, which can only be discharged by collective efforts of the three pillars of the State i.e. legislature, executive and judiciary. An independent judiciary can only protect and safeguard the fundamental rights of the citizens and provide justice without fear, favor or ill will. The prime concerns of judiciary in Pakistan at earlier times were separation of judiciary from the executive, qualification for, and mode of, appointment of, judges, their security of tenure, etc, so as to ensure judicial independence, integrity and performance to gain public confidence. These objectives and concerns are by no means surmounted, as it is a continuous process, which will go on to face challenges and meet the requirements of present day society. However, the recent developments in the country, particularly the
2 Mahney,n 28, 320
3 The Independence and impartiality of the International judiciary by James Crawford….
successful lawyers’ movement for the restoration of independent judiciary and rule of law in the country with proactive support of media have changed the perception of the people, who have now greater expectations from the courts. There is thus renewed emphasis on the need, inter alia, for accountability and judicial reform. No public functionary can be exempted from accountability, though the mode of accountability may be different depending on the nature of function, one performs. The judges are accountable for deviating from their oath or prescribed code of conduct. Further, there is a check on the quantum and quality of justice they dispense, through written orders and reasoned judgments. The judgments are open for review and appraisal by the peers operating as an appellate forum. Moreover, fair comment on judgment in temperate language is not only permissible but ought to be encouraged for effective and efficient system of administration of justice.
The Constitution of Pakistan 1973 provides that the judiciary shall not only be separated from the executive,4 but goes to the extent of saying that its independence shall be fully secured5. The Constitution under a separate part deals with the composition and jurisdiction of the judicature and establishment of the Supreme Court, Federal Shariat Court and High Courts along with Administrative Courts and Tribunals.
The Supreme Court of Pakistan is placed at the highest level of the judicial hierarchy and is the Court of ultimate jurisdiction, followed by the Federal Shariat Court and High Courts. Likewise, District Judiciary and Administrative Courts and Tribunals have been established. The District Courts operate under the administrative control of the High Courts. The Supreme Court and High Courts exercise judicial control over the lower courts in the sense that they are the appellate forum against their verdicts. The Constitution contains elaborate provisions on the composition, jurisdictions, powers and functions of the superior courts, the qualifications for and mode of appointment of judges, oath of office and the age of retirement of judges are laid down. Similarly, the grounds and procedure for removal and the terms and conditions of service of judges are elaborately prescribed by the Constitution. Likewise, the judges of the District Courts of the provinces and capital territory appointed under law have prescribed code of conduct enforced by the respective High Court.
The Constitution, in its very preamble, declares that all authority exercisable by the people through their chosen representatives is a sacred trust from Almighty Allah, which makes it clear that justice is a sacred trust. It also lays stress on full application of the superior principles, which are woven into the Constitution. Furthermore, the oath of a Judge implies complete submission to the Constitution and to the law. Therefore, the objective of these governing obligations, the task of interpretation and application of the constitution and the law is to be discharged for the upholding of the rule of law. To be a living embodiment of these powers, functions, and obligations, calls for possession of the highest qualities of intelligence and character. Similarly, it entails patterns of conduct, which are the hall-mark of distinction of a Judge.
4 Constitution of Pakistan 1973, Art. 175 (3)
5 Constitution of Pakistan 1973. Art.2A
The Judges of superior courts take the oath of office to the effect that they will bear true faith and allegiance to Pakistan and discharge their duties and perform their functions honestly, to the best of their ability, and faithfully, in accordance with Constitution and the law. That they shall abide by the prescribed code of conduct and shall not allow their personal interest to influence their official conduct or official decisions. They further solemnly swear that they will preserve, protect and defend the Constitution of Islamic Republic of Pakistan and that in all circumstances they will do right to all manner of people, according to law, without fear or favour, affection or ill-will. The oath is undoubtedly a binding obligation on judges and they have to conduct themselves in a manner to uphold the norms of justice and dispense justice fairly and impartially. Besides oath, there is a prescribed code of conduct for judges.
When we look through the Constitutional history of Pakistan, we find that the successive constitutions provided for the concept of judicial accountability. The first Constitution of Pakistan of 1956 provided that the judges of the Supreme Court shall not be removed from office except by an order of the President made after an address by the National Assembly, supported by the majority of the total members of the Assembly and by the votes of not less than two-thirds of the members present. In the second Constitution of 1962, a mechanism for removal of the Judges of superior Judiciary was prescribed through the creation of “Supreme Judicial Council”. The same scheme was retained the Constitution of 1973. The Council comprises the Chief Justice of Pakistan, two senior most Judges of the Supreme Court and two senior most Chief Justices of the High Courts. The Chief Justice of Pakistan acts as Chairman of the Council. The Council, besides a reference from the President, may, also on its own motion, inquire into the conduct or physical or mental capacity of a Judge of superior courts of Pakistan. After inquiry, if the Council reports to the President that the Judge is incapable of performing the duties or has been guilty of misconduct, the President may remove the Judge from office. If upon any matter inquired into by the Council, there is a difference of opinion amongst its members, the opinion of the majority shall prevail, and the report of the Council to the President shall be expressed in terms of the view of the majority. The Supreme Judicial Council is also entrusted with responsibility to issue a code of conduct to be observed by the Judges of the Supreme Court and the High Courts. The code of conduct for Judges of the Supreme Court and High Courts was framed by the Supreme Judicial Council under the 1962 Constitution, which was adopted under the new Constitution and with the passage of time it has been amended. In this code of conduct, an attempt has been made to indicate certain traditional requirements of behavior in the Judges of the Superior Courts, which are conducive to the achievement of standards of justice worthy of a nation.
In Pakistan, after the restoration movement for independent judges, the judiciary of Pakistan entered into a new phase. Now the judiciary is enjoying greater public confidence, which they repose in the judiciary for redressal of their grievances and resolution of disputes. Admittedly, making of the law is the prerogative of the legislature, but the judiciary is at liberty to devise policies within the domain of the existing laws to fill the gap and to meet the expectations of the people and to reform the administration of justice, including devising effective mechanism of accountability of judicial officers and court personnel. Thus, the National
Judicial Policy was launched in the year 2009 under the auspices of National Judicial (Policy Making) Committee. The Chief Justice of Pakistan is the Chairman while the Chief Justices of the Federal Shariat Court and High Courts are the members of Committee. This Policy is outcome of consistent deliberations and consultations of all the stakeholders of the justice sector. This turned out to be one of mega plans for the reformation of judicial sector ever in the judicial history of Pakistan, dealing with all the aspects of administration of justice. This Policy seeks to achieve the efficient utilization of existing resources and operates within the given legal and procedural framework. The key features of the National Judicial Policy are to strengthen the independence of judiciary by its separation from the executive, expeditious disposal of cases and to eliminate the menace of corruption from the judiciary, thereby presenting a clean and positive image of judiciary. The Policy seeks to ensure that constitutional principles of equality before law and equal protection of law are strictly adhered to. Similarly, a number of committees have been constituted at the level of High Courts and District Courts to monitor the performance of the judicial officers and the courts staff. Since the implementation of the policy, it has, by and large, achieved its targets of reducing backlog of cases and bringing accountability and transparency in the court performance, especially at the district level where about ninety percent of the litigation takes place.
Judiciary has to win the public confidence through its efficient performance and by writing quality judgments. Although, the judicial organ of the state is independent in its judicial functions, however, it cannot be left unbridled and without any accountability. Here, I remember Thomas Paine, when he said, and I quote:
“A body of men holding themselves accountable to nobody ought not to be trusted by anybody.”
This trust and respect is not to be demanded, but is to be earned through individual and institutional accountability and by making perpetual reforms in the administration of justice, to live this trust and respect every coming day.
Thank you very much.
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