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Call for open trial of references against judges

Call for open trial of references against judges

ISLAMABAD: A Supreme Court-app­ointed amicus has said that open trial of references against sitting judges of high courts will strengthen confidence in the integrity of the judicial system.

But the Supreme Court can decide holding in-camera sessions only to provide protection to witnesses and to avoid public spectacle, argued senior counsel Muneer A. Malik.

On Nov 8, a five-judge SC bench had appointed Mr Malik and Shahid Hamid as amici curiae to assist the court in deciding the petitions moved by Justice Shaukat Aziz Siddiqui of the Islamabad High Court and Justice Muhammad Farrukh Irfan Khan of the Lahore High Court seeking open trial of references against them on misconduct pending adjudication before the Supreme Judicial Council (SJC).

Amicus curiae says citizens have right to know when a judge’s integrity has been questioned

Headed by Justice Sheikh Azmat Saeed, the larger bench will resume hearing of the petition of Justice Khan on March 27 and that of Justice Siddiqui on April 4.

In his written submission before the Supreme Court, Mr Malik stated in-camera proceedings should be distinguished from secret proceedings and the minimum standards of due process did not prohibit a fair hearing in in-camera proceedings.

It could not be alleged that judicial accountability in in-camera proceedings was a violation of due process nor could it be said that it was the best practice, the lawyer said, adding that the constitutionally of in-camera proceedings had been upheld in different cases from foreign jurisdiction like the 2003 Belize judgement of the Privy Council and 1978 Landmark Communications Inc. versus Virginia.

In India, the courts had even held that the accused judge was not entitled to a copy of a report submitted by the committee of judges unless parliament took further action on such a report, which reinforced the non-binding/non-right creating nature of the committee of judges, he said.

About access to justice and collective reputation of the judiciary, Mr Malik said disciplining judges was an important governmental business that should be conducted in a transparent way.

“Citizens have a right to know when a judge’s integrity has been seriously questioned and opening the process to public scrutiny would help ensuring that such process appears to be honest, Mr Malik said.

In the United States, he said, 35 states had adopted sunshine laws or rules and by doing so they had put public education and confidence in the administration of justice ahead of the individual judge’s reputational interest in keeping matters secret for as long as possible.

Public confidence in the integrity of the judiciary and in the process that the litigant would get a fair hearing from an impartial judge was essential to the rule of law, he argued.

In most of the countries or US states where such hearings were not public, the fundamental approach was to shield the judge and the process itself from public scrutiny for as long as possible, the rationale being that the judge who was eventually exonerated would suffer irreparable harm from public opprobrium that would flow from the mere accusation of wrong doing, the counsel explained.

On the other hand, he said, the case for openness was that the public would be better informed about the nature of the accusation and also as to how the judiciary dealt with its own members. Keeping disciplinary proceedings private ran the risk of signalling to the public that judges were benefiting from special treatment, the counsel stated, adding that in any case, maintaining complete confidentiality was often beyond the control of the judicial council.

That often resulted in published misinformation and confidentiality and confidence in the integrity of the disciplinary system suffered, Mr Malik said, adding that the fundamental right of the people to access to justice meant recourse to an independent and impartial judiciary. “Implicit in the concept of an independent judiciary is the notion that the judiciary comprises judges in whose integrity the people can rightfully repose their trust and confidence.”

Independence of the judiciary, he argued, must be secured as a collective institution. The power to remove and discipline judges directly affects individual judges and the judiciary as a collective institution.

The SJC was not a court, as held by the larger bench of the Supreme Court in the 2010 Iftikhar Muhammad Chaudhry case, he said. At best, the council is a fact-finding forum set up by the Constitution to look into the affairs of the judges of the superior courts.

While there was no express power conferred on the council to frame its rules, it would have the implied power to regulate its own procedure, the counsel said.

There was no bar in Articles 209 and 210 of the Constitution for the SJC to lay down its own procedure, including in-camera proceeding, which was just and equitable similar to the procedure in trials, he said. Therefore, SJC rules are covered by the doctrine of implied powers.

Published in Dawn, March 25th, 2018

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