Reforming justice?

The 26th Amendment to the constitution can be seen as a devil’s bargain and a double-edged sword. This amendment was passed by a parliament that has consistently failed to fulfill its responsibilities to the people of Pakistan or act in line with the constitution.

Parliament has never made a genuine effort to reform the judicial system, let alone modernise it through digitisation or make it more transparent and accountable. Instead, it has obediently followed the dictates of the powerful. Moreover, this same parliament has never fully enforced the fundamental rights guaranteed by the constitution of Pakistan – not even one in a comprehensive manner.

The 26th Amendment, however, marks a significant turning point in the country’s judicial system by establishing a formal process for performance evaluations of high court judges. This is the first time in Pakistan’s history that such evaluations have been mandated, placing judicial accountability at the forefront of reforms. The amendment represents a landmark shift, addressing longstanding challenges within Pakistan’s judiciary while aligning with global trends in judicial accountability.

The amendment establishes a structured performance evaluation system for high court judges, assessing aspects such as case management, legal adherence, courtroom behaviour, and process efficiency. Judges with unsatisfactory performance are given a timeline to improve, after which their evaluation is reviewed by the Supreme Judicial Council for potential disciplinary action or removal, introducing a new accountability measure.

The reforms emphasise maintaining high standards of judicial conduct, ensuring judges are both legally competent and civilised professionals. They also enhance transparency and efficiency in the judiciary, aiming to build public trust and better serve citizens’ needs.

Historically, Pakistan’s judiciary has remained largely exempt from performance evaluations. The Supreme Judicial Council has primarily addressed cases of severe misconduct or incapacity, but these actions have typically been reactive – triggered by complaints or scandals – rather than involving proactive, comprehensive system-wide assessments.

This absence of structured oversight has fostered a perception of the judiciary as unaccountable and opaque, creating an environment where inefficiency and corruption can persist unchecked.

Across the world, nations adopt distinct methods to ensure judicial accountability, balancing the need for oversight with respect for judicial independence:

United States: Federal judges enjoy lifetime appointments, but states often implement performance evaluations. The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 provides a mechanism for investigating judicial misconduct, while organisations like the American Bar Association assess judges’ fairness and legal aptitude.

United Kingdom: The Judicial Conduct Investigations Office addresses complaints regarding judicial behavior but does not conduct regular performance reviews, emphasising conduct over efficiency metrics.

India: Judicial accountability in India largely relies on self-regulation, sparking public debate and calls for reform. Critics argue for transparent oversight to bolster accountability within the judiciary.

Canada: Canadian judicial councils offer evaluations rooted in ethical guidelines, yet similar to the US, these evaluations do not impact tenure directly, serving more as advisory assessments.

Our 26th Amendment marks a pivotal shift, seeking to embed both independence and accountability within its judiciary such as: one, clear evaluation standards. High court judges will, hopefully, be appointed and assessed using well-defined, objective criteria, including legal expertise, courtroom conduct, case management, and timely rulings.

Two, empowering the Supreme Judicial Council. Historically limited to addressing severe ethical violations, the Supreme Judicial Council can now review broader performance findings and recommend disciplinary actions or removal if necessary.

Three, discouraging corruption and inefficiency. By introducing structured evaluations, the amendment deters misconduct and incentivises judges to uphold integrity and efficiency, underscoring a commitment to a more transparent judiciary in Pakistan.

With their performance being evaluated, judges may pursue continuous professional development, enhancing their skills and ensuring they meet the system’s high standards. It is also expected that judges’ attitudes and courtroom behaviour – particularly towards ordinary lawyers and litigants – will improve, thereby enhancing access to justice.

However, merely introducing the performance evaluation clauses in Article 175A of the constitution will not ensure the access to justice guaranteed by Article 9, nor uphold the right to a fair trial and due process enshrined in Article 10A.

To fulfill these constitutional promises, the entire judicial system must be immediately digitised and modernised with updated logistics and infrastructure. Access to justice, a fundamental right of the citizens, has often been denied or compromised and must be reliably provided to the people. The people of Pakistan deserve to live in an environment that ensures justice, ends exploitation, and eliminates all forms of subjugation now and forever.

Therefore, it is essential to develop objective and justiciable criteria for appointing judges, as mandated under Article 175A(4). Furthermore, the sections of the federal and provincial information acts related to proactive disclosure must be strictly enforced, rather than allowing these acts to be reduced to mere information-seeking tools. Only by addressing these areas can the performance evaluations effectively contribute to a just and efficient legal system.

The time has come for parliamentarians to rise to the occasion and stand morally firm in their roles, truly embodying the responsibilities of their office.

They must strive to enforce the sonstitution and protect the fundamental rights of the citizens, upholding the authority vested in them by the Almighty. By taking these comprehensive steps, Pakistan can move towards a more transparent, accountable, and fair judicial system that serves the needs of all its people.

The writer is an advocate of the high court and a former civil servant.