Justice Sits Up
The Supreme Judicial Council (SJC) has constituted a two-member committee to prepare draft rules and procedures for accountability of judges. For this one must commend the Chief Justice of the Supreme Court of Pakistan, Justice Iftikhar Chaudhry, this initiative was long overdue. If the superior judiciary has no self-accountability, what can one expect down the line? The Council approved a proposal to amend the code of conduct for judges to make it more elaborate, objective and specific.
The learned judges noted that amendments to Article 209 of the constitution under the 17th amendment were needed to make SJC more effective by viz (1) suo motu powers of initiating action and (2) preparing and adopting procedures, and setting up institutional mechanism for receiving complaints against judges and deciding them. The need was viz (1) to take notice of incidents of inefficiency or corruption in the judiciary and (3) promptly deal with them according to law, checking false and frivolous complaints being filed to malign individual judges of the superior judiciary. This will go a long way in institutionalizing the SJC and making it an effective forum for the accountability of judges.
Accountability is difficult in a country where almost all statements or cross-examinations under oath are badly tainted. For personal gain, whether monetary or otherwise, false representation of facts and distortions, a gentlemanly phrase for “outright lies”, is the order of the day. Vested interest wants to keep the real facts concealed; invariably it is they who volunteer to become witnesses in any enquiry or trial. They manage to disfigure the truth in so brazenfaced and bold a manner that law enforcers do not have the courage to intercede and take action against them. That is why corruption has flourished, these old hands creating a wall of lies, impossible for the investigators to penetrate. In simple terms, a perjurer is a criminal. False evidence under oath is an incurable cancer eating at the heart of our society it has brought the nation on its economic knees. The Oxford Dictionary very correctly gives the meaning of perjury as “an act of willfully telling an untruth when on oath”, and goes on to use the words, “lying, mendacity, mendaciousness, falsification, deception, untruthfulness, dishonesty, duplicity”.
In most countries, perjury carries exemplary punishment, ruthless enough for people to try and avoid giving a statement under oath lest that statement (or part thereof) be detected to be false. The system is so credible that depositions under oath save the time of the courts in long-drawn out examination of witnesses. Automatic and severe punishment acts as a deterrent of sorts, a search of the legal history all over the developed world will show that because of repeated convictions due to perjury, the drop in corruption has been commensurate with that of perjury. The situation is ready made for malfeasance as in Pakistan today where every enquiry, every investigation, every trial, every arbitration, etc reeks of rampant falsification with absolute impunity, whether it is statements before the Oath Commissioner, particularly in the matter of real estate, as paid (or motivated) witnesses in any trial before the court etc. The judiciary acts only on the evidence on record, giving judgment on the basis of the statute books without relevance to the integrity of the evidence being presented before them. One must take a hard look at bringing in the jury system where the judge controls the courtroom keeping the flow of facts reasonably credible, giving rulings based on the law books and precedence, giving directions to the jury as a summary of the evidence presented. The twelve jurists on the panel then consult among themselves before arriving on a finding, whereas it is quite possible to give false evidence, the body language of the witness while giving answers to questions as seen by 12 pairs of eyes makes it that much more difficult. The literacy level being low in Pakistan, the jury system is not considered a feasible proposition, somewhat of a strange stance in face of the age-old concept of the Panchayat.
Sometime back I sat and watched in increasing frustration and disgust as two executives of a semi-government corporation lied through their teeth while giving evidence under oath. Almost every sentence of their affidavits was a lie, answers to every question was a blatant untruth. The tragedy was that their eminent lawyer actually smirked at their lies. Even though this was before supposedly one of the best judges ever produced by the judiciary in Pakistan, one could see why the judiciary seems to have become helpless to prevent perjury. The two executives did not bat an eyelash, in fact they smirked about this, secure in the knowledge that at best the judge would probably throw out the evidence, but would not proceed against them for fabricating evidence.
Whenever society is frustrated by the lack of justice it turns to vigilantes. Rome is the origin. Having disposed off his co-ruler Marc Antony (and with him Cleopatra), to maintain law and order the nephew (and adopted son) of Julius Caesar, Augustus, created a corps of fire-fighters. They had a secondary task of keeping “vigil” to prevent crime, helping the Praetorian Guard on an “as required” basis. Called “vigils”, they were the forerunner of the self-appointed “Vigilance Committees” in the US in the nineteenth century, keeping a very public eye over wrongdoing. “Vigilantes” is a term normally used for those citizens who take law in their own hands and mete out crude justice, targetting mainly those who have the influence and money to escape the clutches of justice.
A movement from a small village called Naxalbari spread in the 60s in India throughout the East and South East as the “Naxalite” movement. Naxalites even today remain a potent force to contend with in some Indian States, killing criminals and the corrupt in the judiciary and law enforcement alike, not to mention corrupt bureaucrats, crooked businessmen, anybody amassing inordinate wealth, etc. Vigilantes may come from law enforcement agencies (LEAs) and/or from the public, those who are frustrated by the injustice of a corrupt judicial system and/or the procedural delays because of lacunae in the law and/or the system being overwhelmed by numerous cases and want to bring criminals to justice. Frustrations can be contained in a society where the intent of rendering justice is sincere, but if the whole system is corrupt and the justice meted out is unjust and unfair, frustration boils over, forcing those seeking justice to take law into their own hands.
The fabric binding society is the belief that those that are supposed to uphold the law will do so, if one has reason to fear these very people of violating the laws of the land then the very basis of civilization fails. The superior judiciary has a very crucial role to play in securing the rule of law in Pakistan. Loss of faith in the judicial system is a very potent breeding ground for vigilantes, therefore, it is imperative that the credibility of our judiciary not be called into question, their integrity must never be compromised.
Accountability in a civilized society, therefore, assumes utmost importance, the transparency and integrity of the process must ensure that those who are the ultimate arbiters of rendering fair and equitable justice must remain above reproach. If the likes of Chief Justice Iftikhar Chaudhry (and his “activist” colleagues) fail, vigilantes of the Taliban-kind will appear to take justice in their own hands, sooner rather than later.
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