After its formation on October 24, 1945, the UN adopted a resolution namely “Basic Principles of Independence of Judiciary, 1985,” which obligated the member states to incorporate the provisions of the resolution in their domestic laws or constitutions and all the governments and other institutions shall observe and respect it. It guided that judges shall give decisions impartially, fairly and without getting influenced by any party. After decades, the UN Convention against Corruption, 2005 (hereinafter called, UNCAC) was passed, and Pakistan was one of its signatories. UNCAC categorically mentioned that there was corruption in higher as well as subordinate judiciary of Pakistan. It also reported there was a low rate of accountability of judges. In another report, UNCAC noted that Supreme Judicial Council rarely sat to hear references against judges of High Court and Supreme Court. The references become infructuous as the judges against whom they were filed retired and the charges however heinous they may be, were not heard on time.

Recently, former prime minister Muhammad Nawaz Sharif was convicted by a judge of National Accountability Bureau (NAB), Arshad Malik. The judge’s controversial videos were leaked and made public by Maryam Nawaz, in which he downright accepted pressure, threats and offer of bribes. He also submitted a self-contradictory affidavit where he got hot and cold it the same breath denying and accepting certain charges to save his job. As per his affidavit, he refused to accept illegal gratification but accepted a visit to Jati Umra to meet Nawaz Sharif under pressure as he was shown a video made while he was serving as an Additional Sessions Judge, Multan, in a compromised position. He accepted his voice and meetings with Hussain Nawaz while performing Umrah.

Interestingly, as a NAB judge, he issued a press release to gain the confidence of the public. Malik has now been suspended and repatriated to his parent department i.e. Lahore High Court because of the allegations levelled against him. The verdict passed by him in which Nawaz Sharif has been convicted in Al-Azizia case has also become questionable as the judge was under influence and his judicial faculties through which he could give the accused a fair trial were paralysed. According to Asif Ali Zardari v. The State, PLD 2001 SC 568, the bias would vitiate judicial proceedings as the confidence of the judge has been robbed, which a litigant may have in him.

The verdict passed by him in which Nawaz Sharif has been convicted in Al-Azizia case has also become questionable as the judge was under influence and his judicial faculties through which he could give the accused a fair trial were paralysed

In the 17th century, for the first time, a judge was given judicial immunity in a civil action in Floyd v. Barker, 1607. However, in Randall v. Brigham, 74 U.S. (7 Wall.) 523, 19 L. Ed. 285(1868), an attorney, Randall was barred from practice in a case. He filed a suit against a judge for causing him damage in the profession, and the judge was given immunity as he was presiding over the judicial office and had the jurisdiction to do so unless and until the acts were malicious and corrupt.

Law is a growing organism. It was developed keeping in view judicial malpractices and inclinations when the question of judicial immunity was elaborately interpreted in Pulliam v. Allen, 466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 [1984] in which a judge did not release him in non-bailable offences and litigant initiated action against him for infringing his legal right of bail as well as curtailing his freedom of movement. Damages were granted to the person, who was kept in illegal and unlawful custody.

Judges, too, are human beings. Sometimes, they commit mistakes in delivering justice to litigants but once the judgment is proved to be based on bias and corruption, our laws not only grant powers to the law enforcement agencies to prosecute the judge but also enable an aggrieved party to claim damages from the judge for passing an unclean and blackened judgment based on malfeasance to favour a party.

As per National Judicial Policy in vogue in Pakistan, disciplinary proceedings can be initiated against a judge for entering into corrupt practices, and he is removed when he is found guilty of the charges. However, in the history of Pakistan, the superior judiciary is yet to initiate a criminal case of corruption against a judicial officer to deter others not to get indulged in corruption and corrupt practices. Previously, a sanction of government was required to lodge an FIR against a civil servant but Federal Shariat Court in Zafar Awan v. FOP, PLD 1989 FSC 84 declared sanction of Section 197 of Criminal Procedure Code, 1898, as repugnant to Islamic Injunction as provided in Verse 59 of Chapter IV of Holy Quran. The policy states in Eradication of Corruption chapter that “appropriate criminal cases under the relevant provisions of law may be registered against the judicial officers’ / court staff involved in corruption.”

We should now wait and see whether the NAB Judge Arshad Malik is made an unnerving example for the judiciary of Pakistan and prosecuted as per the penal laws of the land.

The author is an LLM Scholar and a practising lawyer of High Court based in Peshawar and Islamabad. He tweets @SaifullahMuhib

Originally Published in Daily Times July 16 2019