- The references need decisions to pull the country out
Nisaar main teri galiyon peh ai watan, keh jahan
Chali hai rasm keh koi na sar utha keh chale
Jo koi chahane wala tawaaf ko nikale
Nazar chura keh chale jism-o-jan bacha keh chale
– Faiz Ahmad Faiz
History bears ample witness to the bitter reality that those who spoke or wrote the truth, those who called a spade a spade, faced incarceration, removal from their jobs, character assassination, and whatnot. The agents of the powers that be are of the considered opinion that truth lies at the heart of all problems. They fear that skeletons will tumble out of the closet and the system so carefully crafted by them would come crashing down. Hence the tug of war between the truth, half-truths, lies, outright propaganda, official narrative and unofficial narrative.
When a judge of the superior Courts swears allegiance to the Constitution, the words he speaks aloud include “without fear or favour”. Independence of the judiciary is a doctrine deeply embedded in the fabric of the Constitution.
While a pliant judiciary bends to the will of the authoritarian and autocratic regimes, the independent judiciary holds in check the transgressions of the executive. Without the independent judiciary, the government in the saddle would be granted carte blanche, thereby throwing the whole society into anarchy.
The Chief Justice of Pakistan, Mr Justice Asif Saeed Khosa, dilated on independence of judiciary in an article entitled “Independence of Judiciary: The Final Frontier” when he was a judge of the Lahore High Court. This article was published in PLD 2007 Journal 1. He highlights four stages to make the dream of independence of judiciary come true. One, to identify the roadblocks and to find ways and means to remove them in helping achieve the dream. Two, to shore up the independence of the judiciary by consolidating the social milieu. Third, to create a general perception among the public that propping up the independent judiciary would ultimately benefit them. After dwelling on the three stages, he finally comes to “the final frontier”. He sheds light on it as “the judges should shake off every other consideration from their minds and should decide the matters placed before them in accordance with the law and nothing but the law.”
Big movements are always started by very few numbers of people, and in some cases, by only a single person. It’s not the numbers that carry weight, but the message they convey that matters
The notion of independence of the judiciary, amongst other things, demands that a judge renders his decisions “without fear or favour”. A fearful judge or a judge who makes a decision out of favour cannot be termed an independent judge. To quote the words of the sitting Chief Justice from the above-titled article: “The judiciary cannot become truly independent unless the individual judges are able to shun and rise above desires, fears or apprehensions”. He reiterated his opinion in his first address as Chief Justice of Pakistan on 17 January, 2019: “Fear has no place in a judge’s life, nor does the fear of opposition bring so much as a wrinkle on his forehead, for his only duty is to the Constitution and the people for whom he stands as a beacon for justice”.
The filing of references against Mr Justice Qazi Faez Isa of the Supreme Court and Mr Justice K K Agha of the Sind High Court and one unnamed judge raised many an eyebrow. The manner in which the news came out raised more questions than answers. A smear campaign was conducted against Mr Justice Isa in the social media.
The filing of a reference against an upright judge is a step in the wrong direction. It aims at rolling back the strides this country made for rule of law and independence of the judiciary. It aims at silencing the few voices in our society that listen to their consciences. It’s all about repeating history.
They say, judges speak through their judgments. If the judgments handed down by Justice Qazi Faez Isa are anything to go by, they go a long way towards establishing his fearlessness. He called into question the conventional wisdom and raised thorny questions to be pondered over. He did not mince his words. He called a spade a spade. He dissented from other judges. Take, for instance, the much-talked-about Faizabad Dharna case. His straightforward approach cut the deep state and the ruling party to the quick. His integrity is above reproach. He is a man of dignity, of honesty and of moral fibre. To quote a line from the above article written by the CJP: “A judge disagrees with the majority of his colleagues on a matter of principle, and in such matters, only a judge possessing the strength of character can take a stand according to his convictions”.
Mr Justice Isa acted according to his oath, thereby falling out of favour with powers that be. He did not do their bidding. He held aloft the banner of the rule of law.
As the first hearing got underway before the Supreme Judicial Council in the references against Mr Justice Isa, Mr Justice Agha and one unnamed Justice of the Sindh High Court, people were clueless as to what was happening behind closed doors. Needless to mention, Rule 13 of The Supreme Judicial Council Procedure of Enquiry rules, 2005, unequivocally stipulates that the proceedings of the SJC are to be held in camera, and no reporting whatsoever can be carried out. With the incorporation of Article 10-A of the Constitution by way of the 18th Amendment, the right to fair trial is now a fundamental right and is placed on a higher pedestal. It can hardly be overemphasised that when the said rules were framed, Article 10-A was not a part of the Constitution. Now that it is a part and parcel of it, propriety demands that proceedings being carried out in the SJC be made public, thereby clearing the air of confusion, and thus bringing to an end the endless speculation.
In their loyalty, the proponents and apologists of the ruling party try to dampen the spirits of those who are putting up a robust defence of the recent movement by saying that that there is a group of lawyers, which does not support this movement. When we gaze into the mirror of history, it comes to light that the big movements are always started by very few numbers of people, and in some cases, by only a single person. It’s not the numbers that carry weight, but the message they convey that matters. They gain momentum over time. Slowly and gradually, they become bigger and bigger. And ultimately, people find their salvation in joining it. Movements resuscitate societies. They infuse a new spirit into them.
At the end of the day, the fact that the legal fraternity in particular, and civil society in general, have thrown their full weight behind Mr Justice Isa goes to show that Pakistan has reached the third stage towards judicial independence. Mr Justice Isa as an individual judge reached the fourth stage: the final frontier. Let’s keep our fingers crossed that the SCJ will decide the references in due course of time, thereby pulling the country out of the legal vortex it is sucked into.
