New Code of Conduct for Judges Has Made It Apparent That Dissent of Any Kind Is Unacceptable
By Ba sil Nabi Malik
Karachi, Pakistan
Traditional Pakistan has long been aware of the destructive nature of coups — the abrupt toppling of political governments and their replacement with autocratic regimes marked by little to no accountability. Under such regimes, the noose tightens around dissent, crackdowns on diversity become routine, and tolerance for alternative opinions vanishes.
In relation to this, we can perhaps be somewhat grateful that such blatant usurpations of power are no longer in fashion. However, that does not mean that such autocratic tendencies have disappeared. Where once political governments were sent packing on charges of plane hijackings, ironically, today, the victims of those alleged hijackings are accused of ‘hijacking’ the judiciary itself.
Through the 26th Amendment , the executive and legislature had been given de facto control over judicial appointments, bench selections, and judicial performance evaluations. Efforts to convene a full court to determine the amendment’s validity had been neutralised, at least till now, the seniority of Islamabad High Court judges had been tampered with, some judges were parachuted in to keep others out, courts were packed with judges perceived to favor the amendment, and whether or not such a perception is accurate, an impression had been created that the constitutional bench of the Supreme Court had become a treasury bench, while the one in Sindh had become the ‘people’s bench’.
In these troubling times, some dissent persisted, primarily on the part of a handful of judges in the Supreme Court and the high courts. These judges were never an existential threat to the new system crafted by the establishment, nor are their present protests or expressions of concern a real danger to its continuation. Their dissent and expressions of grievance were, and perhaps remain, an inconvenience.
Even that, however, is now intolerable. With the notification of the revised Code of Conduct, it is apparent that dissent of any kind is unacceptable, and that conformity is not a choice but a compulsion. Nothing makes this more evident than the decision to borrow from resolutions passed in the dark days of the Musharraf era, a time when democracy was a fairy-tale and autocracy was fair game.
Article V of the Code deals with public controversies and how to avoid them. The earlier version was broad and generic; the new one is sweeping in scope, with a tendency to expand into every form of expression. Notably, it now prohibits public controversies arising from any “speech, writing, debate or comment at any forum” — essentially covering all forms of free speech. Yet “public controversies” remain undefined, leaving the article ripe for misuse.
The same article further states that a judge shall “not cause any judicial or administrative matter to be discussed publicly, nor shall he make public any communication relating to his personal or official matters”. On the face of it, it may seem fine. However, there is a deeper concern involved in the phrasing of this section. How is a judge to ensure that any of his remarks, observations, or findings — whether during the course of proceedings in court or in a written judgement — do not “cause” public discussion or controversy? Public reaction lies well beyond a judge’s control, and is that not what is expected of a judge? Moreover, a judge may, at times, need to justify or reason a decision by citing communications relating to personal or official matters. Once cited, these inevitably enter the public record — leaving the judge technically liable for misconduct under this vaguely worded provision.
Another notable revision concerns judges’ attendance at social events, gatherings, and functions, which the Code now directs them to abstain from altogether. Even soliciting an invitation to an international conference, amongst other things, regardless of whether it pertains to legal issues, could constitute misconduct. This restriction is alarming, as international conferences and similar forums allow judges to engage with diverse perspectives, broaden their understanding, and stay informed on current global developments.
Additionally, if a judge is personally criticised or his character attacked, he or she is stopped from responding in any form. Instead, an institutional response is prioritised. Similar processes apply to attempts to influence judges. Yet if history is any guide, institutional responses — particularly in times of turmoil — tend to be timid, if not entirely absent.
Clauses such as these might be uncontroversial in mature democracies where the judiciary operates independently, free from legislative or executive influence. In such systems, where safeguards against interference and corruption are firmly embedded, and where an overall culture of respect is found between and amongst the various institutions themselves, a code of conduct of this nature could function effectively. But in countries where democracy is ‘made to order’ — and that too by those whose names appear nowhere in the Constitution as governing authorities — such codes serve instead as Damocles’ swords hanging over the heads of independent judges, or those who dare to express independent thoughts, even sparingly.
In such circumstances, such a Code of Conduct may well serve more as a tool of misuse as opposed to a shield against wrongdoing. In essence, it may be used to manufacture misconduct as opposed to regulating conduct, with its real purpose being to cull independence, remove judges who think freely, and to protect those who do not. Designed to uphold judicial independence, it could result in suppressing it.
Some may think that we are going out of our way to highlight the ‘possible’ misuse of this code, where no actual misuse has, in fact, come to light. However, in the context of a strained system already finding it hard to give a voice to the people, it is not far-fetched. In fact, in these times, if anything may be perceived as far-fetched, it would be its innocent, effective and judicious use without misapplication. And this is why it may not be improper to state that this Code, in its present form, may do wonders in established democratic orders, but may wreak havoc in others. Unfortunately, whether we like it or not, in today’s world, we are ‘the others’.
(The writer is a lawyer based in Karachi. Dawn)
