- And the system itself
For the first time under the incumbent constitution, Article 209 has been deployed and used, practically. In the past 40 years, the superior judiciary has never removed a member of the bench. Rather, all occupants of the bench remain protected by the constitution.
Justice Shaukat Aziz Siddiqui’s case is quite interesting on its own merits. For some time the former judge was being pursued in a case alleging misuse of funds for the renovation of his official residence. Amidst the Supreme Judicial Council proceedings, Justice Siddiqui rendered controversial judgements treading upon radical extremism. He was even labelled as an extremist sympathiser notwithstanding the fact that he has in the past defended the Lal Masjid cleric, as a lawyer.
For the longest time, the former judge fought for his SJC trial to be conducted in open court. Following a long drawn court battle, the Hon’ble Supreme Court finally allowed the SJC proceedings to be conducted in the open.
Now the question which arises is two-fold. First, whether Justice Siddiqui deserved the removal? Second, whether he was treated fairly, or not? Let us address the latter first. In his open hearing before the SJC, the former judge demanded that the expenses incurred by other Hon’ble judges, for the renovation of their official residences, be presented to him so that he may be able to draw a comparison. Quite astonishingly and against the norms of justice, the CJP disallowed this request and observed ‘that won’t be necessary’. For the purposes of a simple defence, I would disagree with this observation. It was a valid request which should have been accommodated. If there are other judges present who have overspent more than the allocated budgets, then Article 25 of our constitution enshrines equal treatment which should be accorded at all costs.
Refusing to disclose such details puts a question mark on the veracity of the allegations. For a layman, the odor of being singled out is evident. Without any reason, the situation gets hyped up and conspiracy theories find legs to stand upon. It is equally possible that Justice Siddiqui may have been the only one who had misused the funds, however this controversy could only have been put to rest had the record been summoned.
Incompetence should be rooted out using Article 209. The council should be more active and the people should be made aware of the accountability process
Simultaneously, Justice Siddiqui was busy taking a hard line against the military establishment, openly criticising its role in the workings of the country. Certain comments and observations made were uncalled for, yet considered bold and brave by some. However, mostly his decisions were criticised by most.
Moving on to the speech delivered at the Rawalpindi bar association, it is not expected from a member of the superior judiciary to level such allegations on public forums. On the contrary, the same should be brought before the relevant forum and addressed accordingly. More so, if the judge had gone forward with the accusations, then he should have presented evidence to support his stance. Concrete evidence.
Merely issuing such a statement without backing it with substantial proof will always have repercussions. The magnitude of his speech could not be ignored in its totality, though it is also warranted that a thorough inquiry should be conducted in the same. A joint investigation team could be formulated to investigate and report accordingly.
Nevertheless, it is a beginning for the judiciary to conduct self-accountability. However, the same should not be done subjectively. Various other references are pending before the SJC which have never been taken up. One of the judge’s named in the panama papers still awaits a final decision in the reference against him. Even the CJP himself has been named in a number of references. To begin with, it would be a good example to actively pursue those. Independent of the CJP, the council should take up matters against the former and decide them expeditiously. In all probability, most of them are likely to be frivolous however, it would give out a signal that the judiciary is just in all of its actions most importantly, self-accountability.
If matters pertaining to expenditure on official residences can be expediently taken up then might as well pursue those judges known to be living beyond their known sources of income. Or those known to be not so competent. It is most unfortunate that no performance analysis mechanism is present within the judicial quarters. Once confirmed, the judges have a free hand at operating in a manner they desire.
Article 209 should be interpreted broadly and should include action against those performing incompetently. Some members of the judiciary do not even adhere to the timings of the court, often presiding at times convenient to themselves. A vast majority of the cases fixed for hearing are left over to be taken up after a few months. Who remains at a loss? The common man who has desperately waited months for his case to be taken up and travelled for hours from a rural area, only to see the judge rise without hearing his case.
With due respect, the members of the bench also contribute to the inordinate delays caused in the justice system. The Hon’ble Supreme Court is duty bound to ensure that the second tier of the superior judiciary is actively involved in dispensing their duties. Article 209 should not only be deployed as a weapon subjectively but should rather be used occasionally. It should be a deterring factor for all those treading a toe across the line.
Incompetence should be rooted out using Article 209. The council should be more active and the people should be made aware of the accountability process of the judiciary. It is a fundamental right of the citizens to be aware of the moral high ground where those judging them stand upon.
The judge himself must be judged equally. The biggest quality of a judge can be that he doesn’t fear being judged and has no skeletons in his closet. With that in mind, Article 209 should be extended in the near future otherwise there can be no prosperity in a nation where the actions of the justice system remain dubious.