In many parts of the world, individuals which may include Unions, dissatisfied with judicial conduct have a right of access to a Judicial Ombudsman or a Judicial Performance Commission. It is understood that a vast majority of American States have such a mechanism. The relevant bodies have the power to investigate whether the Judge has acted in other than a judicial manner.
In some jurisdictions, they have the power to recommend sanctions, including dismissal, an errant Judge other than those having Constitutional protection and calling for return of all financial advantages including salary, perks etc, as recently ordered by the Apex Court in the case of the appointment of the Ogra Chief Executive. In Pakistan, there is a Tax Ombudsman already in existence.
Injudicious conduct of the subordinate court can be deterred by the creation of such a Judicial Performance Commission. If created, it would provide the means by which a Judge can be disciplined in appropriate cases or even vindicate a Judge who has been unfairly criticised. Such a commission can be utilised to enable aggrieved person to air his complaint. Keeping in view our present day legal system, introduction of a Judicial Performance Commission would benefit our legal system. The existing mechanism for considering complaints of injudicious behaviour or conduct on the part of Court or Tribunals are plainly inadequate. Such an introduction of a Commission will not damage the independence of the Judiciary.
In England until King George III, all judges were removed from office on the death of a monarch. It had an advantage as it enabled the British Government to get rid of unsatisfactory judges. Not so in this country. Today in the subordinate judiciary there is judicial immunity from sanctions for injudicious conduct. This immunity has apparently given the subordinate Labour Judiciary immunity from actions giving him the privilege to make mistakes or to intentionally do wrong. Judicial independence has not been designed and should not be allowed to become a cover for judicial misbehaviour as in the recent case of a Labour Court Judge in Karachi, incompetence or a barrier to examination of complaints about conduct on a political criteria.
Judicial independence cannot be a reason for rejecting a Judicial Performance Commission. Merger of impeding judicial function should not be exaggerated. Justice Cromptonphilosophy of no action against a Judge is outdated. There should be an exception that if a judicial act is done maliciously and corruptly, even a Judge is not immune for his injudicious conduct. The Labour Judiciary is no exception. Judges who are retired yet appointed in the Labour Judiciary should be above political consideration and follow both the Law and the Constitution. If after retirement, they had resumed the licence to practice in Court, they should have ensured that once appointed in the Labour Judiciary, they suspend their licence to practice Law and should not be seen to participate in Annual Bar Elections of which they are still members. If because of ripe age, this fact was overlooked by the Judge it was the duty of his Secretary-cum-Reader-cum-Clerk to have guided their Judge against such a move. Instead they allowed the Judge to enter the trap. They have been taken on assignment from the Labour Court due to lack of staff in the Tribunal, and apathy of the Government. They are too involved in worldly affairs over their mobiles to care for the prestige of the Judge. Casting of vote in the recent Supreme Court Bar Election and participation in the voting was announced gleefully in the corridors of the Court, by none other than the same clerk who can be no well-wisher of the aged Member. Justice Harlan of the US Supreme Court between 1955-1971 even avoided voting in general elections so his impartiality be beyond reproach. Let the Labour Judicial Performance Commission through the Labour Judicial Ombudsman examine and investigate the manner in which the present day subordinate Labour Judiciary is made to function by clerks who are custodian of files, reader, stenographer, diary and decision writer and even the private secretary to the Judge, all rolled in one. If the commission can be appointed by the Apex Court to examine the Memogate Scandal, utilising all available forensic and other materials the Superior Courts can surely appoint such a Commission to clean the subordinate Labour Judiciary in this country.
Judicial independence has not been designed, and should not be allowed to become a shield for judicial misbehaviour, including financial or judicial incompetence nor a barrier to examination of complaints about injudicious conduct on a political criteria. A remedy for the injured party may be the best protection for other litigants, who will come before the same judge in a future case. We should apply to the Labour Judiciary Judge, the standards which they have, rightly, applied for other people.
Operation of a Judicial Performance Commission will not create any impediments to judicial independence. However, it is suggested, two limitations be imposed on the power of such a body. First the Labour Judicial Performance Commission be limited to considering complaints of injudicious conduct. It should refrain from investigating whether a Judge has reached the correct decision on a point of law. Appellate Courts, High Court and Apex Court exist to analyse the decisions of the Judge. But if a Judge clearly erred in law, the Commission might be entitled to consider a complaint of judicial incompetence, provided again, such incompetence can be inferred on the face of record and the decision. When a Judge makes a fundamental error of law, outraging professional and public opinion, ignoring either wilfully and deliberately precedents of the High Court and the Apex Court otherwise binding, he could usually be asked to explain his conduct and be burdened with cost on person. The second limitation on the powers of the Labour Judicial Performance Commission could be not to impose any sanctions. The Commission would carefully investigate complaints. It would then report its findings to the Chief Justice of the respective High Courts. This report be published, which will deter future injudicious conduct. Thus Labour Judicial Commission will be able to reconcile the preservation of judicial immunity from improper interference, with the need for an independent forum for ventilating and examining complaints about judicial behaviour, as recently indulged in Karachi which led the Chief Justice of the Province to intervene and transfer such a Presiding Officer, following more than three months strike by Lawyers not appearing before such a Presiding Officer.
One possible difficult problem the proposed Labour Judicial Performance Commission will face will be in respect of the out of court conduct of such Judges. Another will arise from resistance from certain professional Labour Leaders, who are invariably hand-in-glove with the Clerk of the Court who is not accommodated in cases, specially by multinational companies, government organisations, and those who do not succumb to the pressure of the Clerk. If readers, stenos and clerks of the High Court and the Apex Court can be controlled, because the Judges of the Superior Judiciary are honest and sincere, there is no reason why certain clerks in the Labour Judiciary cannot be controlled and taken care of. No Judge should give the impression to his Clerk that he is indispensable and without him Courts cannot function. This is the root cause of corruption in the subordinate Labour Judiciary in this country. An English Poet William Shenstone has aptly remarked: A justice and his Clerk is now little more than a blind man and his dog.
Considerable discussion would be needed to determine the composition of a Judicial Performance Commission, the procedure it would adopt and the matter with which it would be concurred. If left to the Government then, it would appoint known corrupt dishonest people to this Commission in the same way as the Anti-Corruption Heads are appointed. Such appointments in each Province be made by the Chief Justice of the Province to ensure transparency.
Creation of a Labour Judicial Performance Commission, to begin with, if found workable, be extended to other field of jurisprudence. Creation of Labour Judicial Performance Commission with initial limited jurisdiction and powers would serve an important goal without threatening independence of the Judiciary. The overwhelming majority of the Labour Court Judges, including female Judges have and continued even today, to do a difficult job extremely well and have nothing to fear from the existence of a Commission. The case for such a Commission is that it would help to ensure that all Judges truly hold office during "good behaviour" and were seen and recognised to do so.
Lord Bryce's statement that in America every political question becomes sooner or later, a legal position has never been so true as in Pakistan, though it is conversely true. Here every legal issues converts itself into political mileage, irrespective of its financial cost to the exchequer and its likely impact on the private sector which alone is operational, make profits and pay tax to the government so that they lavishly spend to please political and town or party mates, accommodating them irrespective of merit.
After restoration of a free judiciary, it is no exaggeration to say that the degree of respect and public confidence enjoyed by the Supreme Court and High Court is not matched by any other institution in this country. It is a matter of pride and satisfaction that the judiciary today enjoys credibility far greater than that enjoyed by the other two Wings of the State. This credibility has taken firm root as far as Supreme Court is concerned and is fast taking root amongst the various High Courts. It is the subordinate judiciary that require this Commission. Since this idea has been floated, keeping in view the Labour Judiciary in the country, let this Labour Judicial Performance Commission be initially established in the Labour Judiciary without delay. If not established the entire edifice on which the infrastructure of the economy of this country depends shall collapse. Chaos and confusion will surmount. This tide has to be stopped. If respect of the subordinate Labour Judiciary is to be regarded as integral to the maintenance of the rule of law, such respect will be spontaneous and real to the degree that it is earned rather to the extent that it is commanded. Labour Judicial justice is a consumer product. It must meet the test of confidence, reliability and dependability like any other product if it is to survive market scrutiny.