HUZAIMA BUKHARI AND DR IKRAMUL HAQ
The process of accountability must start from those who judge and adjudge others. Any process of accountability that lacks confidence, transparency and consensus is bound to fail, even bounce back. For sustainable democracy, accountability of an all – through independent judiciary – is sine qua non. For an independent judiciary, the judges must be above the board – men of integrity, blameless, God-fearing and free from all internal and external pressures.
Since justice should not only be done, but seen to have been done, the prime duty of a judge is to demonstrate before the public an image of the justice of the nation. The starting point of reform in Pakistan should be accountability of all organs of State.
In a State where the politicians, high-ranking civil and military officials and judges do not make their declaration of assets public, there cannot be hope for sustainable democracy, rule of law and responsible governance. Civil society and media should come forward to force the parliament to abdicate all laws of secrecy and enact a comprehensive legislation for right to information.
We can learn a lot from India in this regard. The issue of asset disclosure of judges in India came in the limelight when a Right to Information Application (RTI) was filed by one Subhash Agarwal with the Supreme Court seeking to know if judges of the High Courts and the Supreme Court were complying with the 1997 “Code of Conduct,” adopted at the Chief Justices Conference requiring judges to disclose their assets in confidence to their Chief Justices.
The public information officer of the Supreme Court, endorsed by the Chief Justice, claimed “no such information exists in the Supreme Court registry”. Later on, an appeal was submitted before the Central Information Commission (CIC) arguing that the Supreme Court was making a distinction between information with the Chief Justice’s office and that of the Supreme Court.
The CIC, while rejecting this distinction, directed the public information officer of the Supreme Court to secure this information from the Chief Justice’s office and hand over the same to Subhash Agarwal, the RTI applicant. The Supreme Court challenged the order of the CIC, filing a writ petition in the Delhi High Court.
The CIC merely directed the release of the information about whether judges were disclosing their assets to the Chief Justice, but in the writ petition, the Supreme Court apprehended that the exercise might lead to paving the way for people to know about asset disclosures under the Right to Information Act [the Act]. It was claimed that asset disclosures by judges was exempted under the Act, as the information was with the Chief Justice under a “fiduciary relationship”.
The second contention was that being “personal information”, it had no relationship with public domain. Chief Justice feared that public access of such declarations would amount to “an unwarranted invasion of privacy” of his brother judges. Finally, it was argued that Chief Justice was not a “Public Authority”, amenable to the Act.
The issue came into further limelight when the government introduced a bill in the Parliament providing for asset disclosure of judges, but with a protection clause that the same would not be accessible to the people and that judges would not be made liable for any action on the basis of their disclosure. This led to a commotion in parliament – the MPs, rising above party lines, vehemently and collectively condemned this clause, forcing the government to pull out the bill.
In the wake of the debate in the Parliament and a public campaign, a number of High Court judges made their assets public, dissociating themselves from the Chief Justice of India’s stand that asset disclosure would lead to harassment of judges at the hands of disgruntled litigants. Eminent former judges and leading jurists joined the civil society – they openly, and publicly demanded public declaration of assets by judges. The entire civil society and media, unanimously and vocally, opposed the stand of the Chief Justice.
Succumbing to opposition – both from the inside and outside – the Chief Justice ultimately yielded announcing that the asset declarations of the judges would be placed on the official website, www.supremecourtofindia.nic.in. Soon thereafter, twenty-one judges of the Supreme Court, including Chief Justice of India K.G. Balakrishnan, declared their assets, giving details of movable and immovable property owned by them and their spouses.
According to Indian commentators, the disclosures made so far are disappointing because they lack many important details. They give an idea of the different saving habits of different judges. Some of them have invested in real estate, others in shares and yet others in government’s savings schemes. But the information could have been useful only when the market value of the assets was made known and details like the time of acquisition of property were also given.
In Pakistan, we have laws (sic) for declarations of assets and liabilities by government servants and public office holders, but the public knows nothing about them. In these declarations, the present value of the property and how they were acquired are seldom revealed. These must be made public, along with their tax declarations.
In India there was sharp criticism over asset disclosures of the judges and their spouses. It was demanded that information about the assets of other close relatives, like sons and daughters, was also important in the Indian context. The declarations, made under a Supreme Court resolution of May, 1997, were only in partial conformity with the requirements laid down.
That declaration, in fact, underlined the need for a law that makes the disclosure mandatory and open to the public, and lays down in detail what are the assets to be declared, how the disclosure is to be made and who all should come under its purview. Civil society and the media demanded that it should also specify the consequences of wrong declarations.
The campaign for judicial accountability and reform in India has assumed great public importance. The issue is no longer confined to public disclosures of assets of judges. The public and the media have made it clear that the Right-to-Information legislation, being a significant legislation of recent times, should be implemented in its true spirit and that alone can pave the way for true democracy.
We need the same law and campaign in Pakistan, if all the four pillars of the State – the Legislature, Judiciary, Executive and Media – have to be accountable to the public at large. Right to information, access to public record and free availability of what is owned by the privileged classes must be assured-this alone can help fight corruption in all domains. In India, the ‘Campaign for Judicial Accountability and Reforms’ after gaining noteworthy momentum, has now put forward the following demands:
1. Setting up of independent and credible institutions for the appointment of judges and for entertaining complaints against them.
2. Overruling of the Veeraswami judgement, which prohibits the criminal investigation of judges without the written permission of the Chief Justice of India.
3. The amendment of the Contempt of Courts Act, by removing “scandalising and lowering the authority of the Court” from the definition of Criminal contempt.
4. The full application of the Right-to-Information law to all organs of State, including the judiciary which is being thwarted by self-serving rules framed by the High Courts and self-serving judgements which have effectively stonewalled information about the administrative functioning of the judiciary.
As in India, we should also initiate public debate about asset disclosure of judges and their mode of appointment. Before judges do accountability of politicians, they must convince the masses that their hands are clean. The honourable Chief Justice of Pakistan must be aware of the recent developments in India in this direction. One hopes, he will soon order the public disclosure of assets by honourable judges and their placement at the official website of the apex court.
(The writers, authors of many books and tax advisers, are members of visiting faculty of Lahore University of Management Sciences (LUMS)
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