SINCE the presidential references filed against Justice Faez Isa and Justice Karim Agha earlier this year, the process of judicial accountability in Pakistan is once again in the spotlight.
A fundamental element of the independence of the judiciary is that individual judges have security of tenure, ie they should not be subject to removal from office during their term of appointment unless such removal is for serious misconduct or incapacity. This raises an important question: does the judicial accountability process in Pakistan ensure judges are held to account for serious misconduct, such as corruption or complicity in human rights violations, while preserving the independence of the judiciary? Article 209 of the Constitution empowers the Supreme Judicial Council (SJC) to carry inquiries into the capacity and conduct of Supreme Court and high court judges. Disciplinary proceedings are initiated before the council if there is information from “any source”, or it is the opinion of the president of Pakistan, that judges are either incapable of performing their duties due to incapacity, or they may have engaged in misconduct.
If the SJC makes a finding of misconduct, it may recommend to the president that the judge be removed from office. Unlike a number of other jurisdictions, notably the UK and South Africa, Article 209 and the SJC’s Procedure of Inquiry, 2005, do not explicitly provide for other disciplinary measures such as warnings, reprimands, counselling, or suspensions. Article 209 of the Constitution provides the “Council shall issue a code of conduct to be observed by Judges of the Supreme Court and of the High Courts”. The code of conduct forms the basis of the judicial accountability process for superior court judges.
The code predominantly relates to the requirements of independence, impartiality and integrity of judges. Some of the provisions, however, include terms that are overbroad and too imprecise to serve as legal provisions intended to determine whether or not a judge may be removed from office. Article II, for example, provides that a judge should be, among other things, “God-fearing”, “wise in opinion”, “blameless”, “strong without being rough” and “polite without being weak”. This provision is often invoked in complaints against judges of the superior judiciary: it is raised in the presidential reference against Justice Isa, and was one of the grounds for Justice Shaukat Siddiqui’s dismissal last year.
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Some aspects of the judicial accountability framework appear inconsistent with international standards.
In its report on the complaint against Justice Siddiqui, the SJC interpreted the grounds for removing judges even more broadly to include misconduct that is not set out in the code but is against “traditional requirements of behaviour” of a judge. The SJC observed: “…the code of conduct only makes an ‘attempt’ to indicate certain traditional requirements of behaviour leaving it to the Supreme Judicial Council comprising of the most senior and experienced judges in the country to consider whether an alleged conduct of a judge is offensive to the qualities and behaviour traditionally expected of a judge or not”.
Some aspects of the judicial accountability framework in Pakistan and its application by the SJC appear inconsistent with international standards.
The UN Human Rights Committee, an independent body of experts mandated by the ICCPR (a treaty legally binding on Pakistan) to interpret and apply its provisions, emphasises for instance that judges should be removed only on “serious grounds of misconduct or incompetence”. The UN Basic Principles on the Independence of the Judiciary provide, among other things. that: “All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct” and that judges may only be removed for “incapacity or behaviour that renders them unfit to discharge their duties”.
Despite the importance of such a clearly defined and appropriately high threshold for removal or discipline for judicial independence, the element of gravity and seriousness is not explicitly set out in any part of the framework for judicial discipline and removal in Pakistan or in interpretations by the SJC. Justice Siddiqui, for example, was removed after being found “guilty of misconduct” — the severity of the misconduct and why it necessitated removal was not discussed in the SJC’s report.
The “established standards” principle, along with specific provisions in other international standards including the Implementation Measures for the Bangalore Principles and the Latimer House Guidelines, require that the grounds on which judges can be removed from office must be clearly defined. This means that they must be formulated precisely to ensure judges can regulate their conduct accordingly. Vague and overbroad grounds could undermine the independence of the judiciary by leaving the door open to selective interpretation and arbitrary or biased personal predilections.
The vagueness in the code of conduct is all the more concerning because the only option explicitly provided to the SJC upon a finding of misconduct is recommending that the judge be removed from office. As discussed earlier, other disciplinary measures or sanctions are not clearly provided in the relevant laws or in their interpretation by the SJC.
International standards emphasise the importance of ensuring that sanctions are proportionate to the seriousness, degree of fault, and the impact of misconduct by a judge. This applies in both directions: sanctions must not be disproportionately harsh vis-à-vis the gravity of the offence, but neither may they be unduly lenient.
A judicial code of conduct intended only to provide ethical guidance to judges can be broad and general, but when a system allows for any breach of such a code to give rise to the most grave sanction of removal, the system becomes inconsistent with international standards and the risk of arbitrary, biased, or overbroad application becomes very high.
At best, the very existence of such risk in the institutional framework undermines judicial independence, regardless of how it is applied in practice. At worst, it has the potential for the judicial accountability process to be used as a means of controlling or penalising judges. It is therefore imperative that to ensure consistency with judicial independence and the rule of law, the code of conduct and SJC procedures are amended to bring them in line with international standards.
The writer is a legal adviser for the International Commission of Jurists.
Published in Dawn, August 26th, 2019