- The judges must stand up and be counted
In the last few years, the Supreme Court of Pakistan has remained in the limelight more than usual. Be it the military courts judgement or the Panama Leaks saga, the apex court has never failed to enthral us with its pronouncements. With Chief Justice Asif Saeed Khosa captaining the judicial ship now, the latter has mostly remained in calm waters and has evaded turbulent shocks. Marked as the year of judicial restraint, the top court has refrained from interfering in the matters of the executive in general. The theatrics of Courtroom no.1 during the tenure of CJP Saqib Nisar, have been missing throughout CJP Khosa’s tenure till now. Yet, the Supreme Court is pulled into the limelight one way or the other.
Most recently, the references targeting Mr Justice Qazi Faez Isa have embroiled the apex court into a controversy and the matter has turned sensitive overnight. An impartial and upright judge has been put at the receiving end of Supreme Judicial Council references in the light of his judgement targeting state institutions. The concept of judicial immunity remains effectively nullified. In the light of a judgement, a reference is filed and the same is taken up for hearing almost instantly.
Senior Advocate Supreme Court, Mr Abid Hassan Minto, in his letter addressed to the Supreme Judicial Council, demanded an explanation as to the mode and manner in which a particular reference is decided and disposed of. He went on to seek the release of all orders passed by the SJC in the past few years whereby hundreds of allegedly frivolous references have been disposed of. Further cementing his demand, Mr Minto pointed out the release of the SJC decision in Mr Justice Shaukat Aziz Siddiqui’s case on the Supreme Court website, thereby creating room for the release of all other references that have been disposed of.
Suffice to say that Mr Minto’s carefully worded letter gives rise to certain very pertinent questions that should be addressed for the sake of impartiality. Choosing to remain silent in such circumstances does not protect the integrity of the institution but rather casts enough doubt to raise eyebrows. If all was done in accordance with the rules and procedure, then there was no harm in releasing the details as to what enabled the SJC to take up Mr Justice Isa’s references out of turn and even pass an order on one.
Taking up a reference that is allegedly tainted with mala fides will not only set a dangerous precedent but shall deter all independent judges from discharging their duties without fear. If judges of the superior judiciary are to be removed at the whims and caprices of the executive, then the justice system of Pakistan will be left with no moral authority to stand upon. CJP Khosa, who is otherwise focused on protecting his legacy, has to bear in mind the events of today whilst dilating upon the predicaments
Similarly, Mr Justice Isa’s letters to the President further ignited the situation and stirred up the controversy. Despite dismissing allegations of misconduct by authoring the said letters, CJP Khosa failed to exercise his famous judicial restraint and went forward in addressing the concerns of the Honourable Judge, though in a negative light. In a way, he responded to Mr Justice Isa’s claims and even refuted his side of the story. The time when judicial restraint was required the most turned out to be a time where CJP Khosa, overcame with emotions, penned down his resentment.
Mr Justice Isa, nevertheless, unveiled his next move in the form of constitutional petitions which he filed before the Supreme Court, challenging the proceedings before the SJC. As per the averments, Mr Justice Isa contends that since CJP Khosa has already relayed a bias towards him he is no longer morally empowered to preside over the pending reference.
The aforesaid events have resulted into the formation of a seven-member larger bench to be headed by Mr Justice Umar Ata Bandial which shall dilate upon the questions of law raised by Mr Justice Isa. Adjudicating upon the constitutional petitions is not going to be an easy task. The Honourable Judge in question is not one known for his radical views or one whose name flashed in the Panama Leaks. He is a Judge who is known to be fiercely independent and bold and has authored a judgement questioning the functionality of state institutions. Mr Justice Isa has further alleged that his family is being monitored by intelligence agencies and whether such exercise whereby public resources are being utilised, has a legal footing to stand upon.
For the first time, intelligence monitoring of superior court judges will be determined and the test of constitutionality will be applied to it. The bench has to be mindful of the repercussions of whatever dictum it seeks to lay down. The petitions will not only determine the fate of Mr Justice Isa but rather will address the questions raised on the independence of the judiciary and the trichotomy of powers supposedly operational in the country.
If a Judge can be targeted for rendering an independent opinion then the Honourable Judges need to be aware of the fact that it may be Mr Justice Isa at the receiving end today but tomorrow it can be any one of the other members of the superior judiciary.
Taking up a reference that is allegedly tainted with mala fides will not only set a dangerous precedent but shall deter all independent judges from discharging their duties without fear. If judges of the superior judiciary are to be removed at the whims and caprices of the executive, then the justice system of Pakistan will be left with no moral authority to stand upon. CJP Khosa, who is otherwise focused on protecting his legacy, has to bear in mind the events of today whilst dilating upon the predicaments. Already much hopes that had been attached to him on his assuming charge have been shunned away, as no meaningful development in regards to judicial reforms has been made. There is a thin line upon which the Supreme Court is currently walking, one wrong move threatens to collapse the entire super structure upon which the apex court has built itself over decades.
It is a not a matter of Mr Justice Isa’s fate but rather an answer to whether the Supreme Court judges have what it takes to stand up for their independence, impartiality and integrity. All eyes are set on the larger bench with optimistic hopes of putting an end to the entire saga in a gracious manner.