Judicial accountability

Daily: Daily Times
Date: 06.02.18

Judges are also subject to law. Though this simple point is yet to be recognized in Pakistan,
a step has been taken in this direction on February 1 by Justice Muhammad Farrukh Irfan
Khan of Lahore High Court (LHC), while hearing a writ petition against an administrative
decision of the Chief Justice of the LHC, Justice Mansoor Ali Shah. As widely reported in the
media, Justice Irfan Khan said: “Is there no one to hold Justice Mansoor Ali Shah
accountable?” This exasperating call reveals the rotten state of affairs at the LHC creating
problems not only for litigants but also for fellow judges.

Advocate Muhammad Azhar Siddique had filed the petition, as the counsel of a petitioner,
to plead that the Chief Justice of the LHC had not only appointed Khurshid Anwar Rizvi as
the Registrar of LHC unlawfully against the LHC rules, but the Chief Justice has also
unlawfully allowed the premature retirement of the Registrar in violation of the LHC rules.
The relevant notification has made Anwar Rizvi eligible for drawing retirement and post-
retirement monetary benefits from the LHC. By law, Anwar Rizvi was an employee of district
judiciary and not an employee of the LHC to avail himself of any such monetary benefit from
the LHC. Apparently, the Chief Justice of LHC has made this move to ensure that his blue-
eyed subordinate is rewarded before the former leaves the LHC for joining the Supreme
Court (SC). However, contrary to the practice that fellow judges do not overturn the
decisions of the Chief Justice issued in administrative or judicial realms, Justice Irfan Khan
suspended the notification through a short order and called for the constitution of a larger
bench on the case.

The case highlights two more aspects. First, Anwar Rizvi who had served as a District and
Sessions judge knew that he was not eligible for the post of the Registrar but he applied for
and accepted the appointment, and kept drawing the salary and serving at the LHC.
Secondly, Anwar Rizvi knew that he was not eligible for pre-mature retirement at the LHC
but he moved his application and got it approved from the Chief Justice. In this way, Anwar
Rizvi not only misused the powers of the Registrar office but he also endeavoured to accept
the monetary benefits, in terms of grants and allowances, to which he was not entitled. All in
the LHC already knew the nexus between the Chief Justice and the Registrar. The same
has been revealed to the public now.

The case is a tip of the iceberg of malpractices. During his tenure as the Chief Justice of
the LHC, Justice Mansoor Ali Shah solidified the habit of issuing administratively erroneous
orders and then withdrawing them. With this kind of temperament, when he joins the SC,
what will happen at the SC is understandable. Justice Irfan Khan has raised a pertinent
question: “Is there no one to hold Justice Mansoor Ali Shah accountable?” Nevertheless,
the attached questions are these: What has Chief Justice of Pakistan, Justice Saqib Nisar,
seen in Justice Mansoor Ali Shah for exempting him from accountability and extending to
him the umbrella of protection?

As reported in the media, during the hearing, Justice Irfan Khan also said, “Courts are run
on taxpayers’ money”. Only if this point were revered. Currently, Justice Saqib Nisar has
resorted to judicial activism by even working in the court on Sunday. However, while
nominating Justice Mansoor Ali Shah for the bench of the SC, Justice Saqib Nisar knew that
Justice Mansoor Ali Shah used to come to the court two to three hours late after the
stipulated court time, thereby making litigants stand outside his courtroom and wait for his
arrival. This malpractice remained agonizing for litigants, as no litigant is allowed to enter
the courtroom of the Chief Justice unless the judge arrives in his chamber. Secondly,
Justice Saqib Nisar knew that Justice Mansoor Ali Shah used to rise up from the court hours
before the stipulated close time, thereby making litigants to visit his court again some other
day for the hearing. Some other day is important because Justice Mansoor Ali Shah often
used to be on leave as the Chief Justice of the LHC. The point is simple: litigants pay taxes
to let the government meet the judges’ demand of high salaries and spoils of offices;
litigants pay hefty fees to the lawyers to contest their cases. The situation is a boon for the
judicial complex comprising judges, lawyers, assistants (called “Munshis”) and the
photocopiers encircling the court premises. Litigants are at a loss.

As reported in the media, during the hearing, Justice Irfan Khan also said, “Judiciary is not
a sacred cow.” Only if this were true. The 18th Constitutional Amendment substituted
clause 5 of Article 209 on the Supreme Judicial Council by saying: “If, on information from
any source, the Council or the President is of the opinion that a Judge of the Supreme
Court or of a High Court … may have been guilty of misconduct, the President shall direct
the Council to, or the Council may on its own motion, inquire into the matter.” The Supreme
Judicial Council (SJC) Procedure of Enquiry 2005 defines “misconduct” as “(i) the conduct
unbecoming of a Judge, (ii) is in disregard of the Code of Conduct issued under Article 209
(8) of the Constitution, and (iii) is found to be inefficient or has ceased to be efficient.”
However, both the President of Pakistan and the Chief Justice of the SC as Chairman of the
SJC have resorted to inaction.

The silence so observed violates Article 19-A which was also introduced through the 18th
Amendment offering the “Right to information” to citizens: “Every citizen shall have the right
to have access to information in all matters of public importance subject to regulation and
reasonable restrictions imposed by law”. Both President Mamnoon Hussain and Chairman
SJC Justice Saqib Nisar have been overlooking the fact that the matters related to the
judges working in public domain also fall into the category of public importance. Justice
Saqib Nisar has to disclose the reasons for extending protection to Justice Mansoor Ali
Shah from accountability.

Litigants at the LHC just repeat the words of Justice Irfan Khan: “Is there no one to hold
Justice Mansoor Ali Shah accountable?”

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