The successful failure of Article-209

Accountability should extend to all institutions especially the judiciary

Decades have passed since the incorporation of the 1973 Constitution. Considered to be one of the most successful strides towards strengthening democracy, the 1973 Constitution provides for almost everything and anything pertaining to the governance of our country. This social contract if read in its entirety contains some very useful and needful provisions. The predicament however is the lack of implementation.

For instance it is the fundamental right of every individual in Pakistan to freely practice and profess their religion, but in reality the freedom of religion remains wishful thinking of the progressive class.

From the protection of basic fundamental rights to the modus operandi of almost all state institutions, this remarkable piece of legislation caters for everything. For the sake of this discussion , Article 209 of the Constitution remains of particular interest, especially, during the prevalent scenario of the country. Falling under the chapter containing general provisions relating to the judicature, this Article proscribes the procedure to be adopted for judicial accountability.

Judicial accountability remains a taboo subject since some legal wizards consider it to be treading near contempt. Although that isn’t true under any circumstance. Raising calls for judicial accountability is a right of the citizenry, the very citizenry who are being dispensed justice by the members of the same judiciary they seek accountability of. The second more pressing misfortune that surrounds judicial accountability is political affiliation. Any individual raising his/her voice for judicial accountability is immediately associated with the N leaguers and the Sharif family, however, rest assured people who have read my work can vouch that I am anyone but a supporter of the Sharifs.

The mechanism provided for in Article 209, would have been serviceable had it been successfully employed as a tool for judicial accountability. Fortunately or unfortunately the Supreme Judicial Council established and empowered under Article 209 of the Constitution has miserably failed in delivering. There hasn’t been a single instance where a judge has been de-seated by the judicial council as a result of sincere accountability.

Sadly enough, even the council has taken up cases on other grounds, some even allege sectarian grounds nevertheless no proof whatsoever exists to substantiate this particular claim. Certain bails granted by a LHC judge have been expeditiously taken up by the council. However the council appears blind when reading the Panama papers thoroughly. A sitting judge of the Lahore High Court has been named in the Panama papers, yet there seems to be no urgency in deciding the references against him.

Obviously, in the ensuing circumstances the N leaguers and their cronies are going to make an effort into building an anti-judiciary sentiment by highlighting the hypocritical agenda of the members of the superior judiciary. Ironically, the instruments required by the N leaguers are being provided for by the judiciary themselves.

Rather than stooping to their level, the judiciary should maintain its esteem and integrity. They shouldn’t bulge in response to the openly malicious comments being passed by the accused Sharif family. Such comments reflect their desperateness and cements the fact that their fall is indeed near and they themselves can feel the heat severely.

Reverting back to the process of accountability, some genius minds co-relate judicial and military accountability and assert its need. Yes indeed accountability should be across the board, but what these pseudo intellectuals fail to comprehend is an underlying difference between the two institutions.

Firstly, the establishment is an institution not responsible for dispensing justice to the common man. In fact, relatively speaking, the armed forces have no day to day interaction with the common man as compared to the judiciary. Secondly, the process of accountability present within the army has seen the light of the day. Quite recently a sitting general was sent packing as a consequence of internal accountability.

Our lordships on the other hand have nothing of the sort on their hands. There couldn’t be a greater lie than the fact that no one judge was ever involved in corrupt practices during the passage of all these decades. It is not only hard to comprehend but factually remains an impossibility. The leaked calls between members of the superior judiciary and political personalities have been heard by the entire nation.

When it comes to political accountability, the Supreme Court maintained a petition under Article 184(3) for the purposes of taking up the Panama papers fiasco. On the other hand the very same gentlemen who form the Supreme Judicial Council have been unable to reprimand the LHC judge whose name directly appeared in the Panama papers. Even Nawaz Sharif was better off as his name didn’t appear directly. The Lordship occupying the LHC bench however was named exclusively.

Such a drastic failure on the use of Article 209 is pitiful and a cause for concern. Even the legal community who initially demanded resignation have been silent for the past year or so now.

The recent profound development of jurisprudence on part of the superior judiciary of Pakistan is commendable and I personally as a member of the legal community remain a fan. However it will be short lived if people named in the Panama papers and also having failed to properly disclose their assets remain an occupant of the prestigious bench. The use of Article 209 is necessary to establish the writ of an independent judiciary.

In the present circumstances, righteousness, justice and fair-play can only be expected from the two Cambridge graduates who currently don the robes in the Supreme and the Lahore High Courts respectively.

With their proactive approach towards the dispensation of justice I remain optimistic that justice in the name of the Panama papers, to begin with, will indeed be served and the doctrine of egalitarianism will be executed so long as these two Lordships are part of the decision making process.