Aug 5, 2009

Vital actions for judicial reforms

bY Abid Hasan

The recent pronouncements of the chief justice on reforms in the judiciary, as well as the judiciary's activism, have given hope to people that Pakistan might finally have a good judicial system. The new National Judicial Policy is a good statement of intent. Given that the window of opportunity for reforms is usually brief, and expectations are high, reform actions would need to be bold and urgent. Based on global lessons of success, this article suggests four critical actions which the NJPMC should implement urgently, so that in a few years the Pakistani judicial system is speedy, honest and impartial, and provides equitable access.

The first and foremost is to establish a transparent and merit-based system for appointment of superior court judges. The present system is as opaque, in respect of transparency, as the election of the Pope. And it has allowed many individuals to become superior court judges who neither had the professional competence nor the integrity required of judges. It is recommended that the NJMPC adopt a new "in-house" system which is much more open and inclusive and comprises rigorous selection criteria incorporating professional competence, impartiality and integrity. The system should generate a short list of candidates for vacant positions. One option is to establish a sub-committee of the NJPMC for this purpose, which includes members from the legal community and civil society selected by the NJPMC, and which will vet candidates through interviews, rigorous reviews of professional records and reputational feedback received from civil society. This "in-house" step can be taken by the NJPMC, without any need for approvals from the government or changes in the Constitution.

The second reform pillar should be actions to reduce corruption in the judicial system. Regrettably, good behaviour cannot be decreed and legislated. Corruption thrives in public institutions which have monopoly over the service they provide, where officials have discretion and where accountability is weak. Most public institutions (e.g., the police, the taxation department) operate under these conditions. Since the judiciary will always have monopoly on provision of judicial services and interpretation of law is subject to discretion, there is not much one can do about these drivers of corruption within the judiciary. However, a strong and effective system of accountability can significantly reduce corruption. The NJPMC should consider the following four accountability actions:

A new code of conduct for all judicial officials needs to be introduced, along the lines of the Bangalore Principles of Judicial Conduct. Every year, all judges should be asked to certify that they have complied with the Principles of Conduct, and declare their assets and wealth. The key Judicial Conduct Principles should be displayed prominently in all courtrooms. As part of the new Conduct of Principles, judges should be prohibited from accepting from the state any subsidised asset (e.g, , land, houses or cars), or favours in respect of close family relations. Accepting such favours has been an important factor in compromising judicial officials. Judges must adhere to the highest possible standards of ethics and propriety and act as society's moral compass and integrity role models, in order to have the high moral ground when taking decisions on unlawful and unethical actions by public and elected officials.

Internal and external accountability of lower judiciary needs to be strengthened by: (i) establishing special oversight teams of retired/serving high court judges whose full time role would be on-site supervision of lower courts, including reviewing the quality of decisions and case management by judges, (ii) establishing case databases and performance standards which would be used by the oversight teams to evaluate performance of individual judges, (iii) annually publishing the performance record of each judge, so that availability of this in public domain will put additional pressure on individual judges to improve their performance, (iv) annual independent opinion surveys of performances of every lower court, which would be available to the public and which would be used by the chief justices (in addition to reports by the oversight team) to reward good, and censure poor, performers.

Informed public debate on judicial decisions would certainly put pressure on judges to minimise populist, biased, self serving and timid judgments which fall far short of censuring and punishing high ranking officials responsible for unconstitutional actions. Imagine what would happen to all those judges who abetted unconstitutional actions, if contempt of court guidelines allowed public debate on their decisions and the personal benefits they obtained through such decisions.

Finally, those lower judiciary judges that are perceived as corrupt by the bar members and citizens using the court in the judges' jurisdiction, must be weeded out urgently. The NJPMC needs to establish special integrity teams, which identifies the corrupt through a transparent set of criteria, including the judge's integrity reputation. Swift actions in the above four accountability areas will send a strong signal to citizens that the chief justice's intent for "zero tolerance of corruption" is being followed up by concrete actions.

The third reform pillar should be prioritisation of judicial activism to focus on the forest and not the trees, concentrating on ensuring good governance, which is necessary for an effective and impartial judiciary and rule of law, rather than using scarce judicial resources on less critical, easy and populist issues (e.g., electricity pricing, energy taxation, giving relief to poor people, reemployment of redundant staff). The judiciary (like the parliament) also recently succumbed to the easiest action, give away scarce tax money, without at all looking at the economic merits or considering that fiscal deficits would increase and/or higher priority development expenditures would have to be cut.

Judicial activism needs to be aggressively and selectively used to focus on the following key pillars of good governance: (i) weak implementation, in letter and spirit, of the Political Parties Act and election laws, resulting in capture of the political system by the CCCs (crooks, corrupt, and criminals). For example, the SC could require the EC to have an independent audit of the tax and wealth returns filed by elected officials, especially leaders, to ensure that their returns match their domestic and international living, and their exorbitant expenditures on electioneering. In addition the SC could require the EC to force political parties to have genuine free and fair party elections, so that dynastic hold and CCC capture is minimised, (ii) absence of a credible and comprehensive anti-corruption strategy, and the unchecked abuse of office by many leaders and senior officials. The SC's aim should be to strike down NRO and require government to take credible anti-corruption actions, including "code of ethics and conduct" for all legislators and senior civil and military officials, and increasing transparency and competitiveness of public procurement, especially in respect of large civil and military contracts, (iii) effective implementation of Freedom of Information Act, (iv) reducing abuse of tax monies by decision makers, for example the generous tax payer funded perks and privileges of parliamentarians, ministers, and senior military, civil and judicial officials, which are out of line with the poverty status and fiscal position of the country. The difference between India and Pakistan, in respect of perks and privileges, is very telling. The capture of political and administrative system by the elite CCCs is a major contributor to Pakistan's slide into a failing state, and weak adherence to the letter and spirit of the Constitution. Hence SC's activism in this area would be fully justified on grounds of enforcing the basic tenants of the Constitution.

The fourth reform pillar should be to clear the backlog of cases over one year old, by undertaking a crash programme implemented by special teams of retired judges. Crash programmes have shown good results in the short-term, but, similar to crash diets, without deeper changes, courts revert to their old, bad habits.

Reforming and strengthening the judiciary is a profoundly difficult task. It will require extraordinary courage and persistence by the NJPMC as well nurturing "reform champions" at all levels of the judiciary. The CJ and NJPMC have a once in a lifetime opportunity to redeem the judiciary, but more importantly give hope to the 170 million Pakistanis of a fair and timely justice system, and good governance. Their recent pronouncements are encouraging, but bolder and courageous steps on the road less travelled will be needed to translate noble intent into a new reality on the ground.

The writer is a former operations adviser of the World Bank. Email:

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