Plenipotent! Rule of law or rule of judges – by Saad Mansoor

The lawyers’ movement beginning on 9th March 2007 and ending after the restoration of judges on 16th March 2009 was a major milestone in the struggle for rule of law by people of Pakistan. However, little that goes on in the corridors of power of our or any nation is as black and white we would like it to be. For it is clear, that the judges that occupy the benches today have an agenda that steers away from justice and rule of law. The consistent disregard for ethical principles, maxims of law, judicial principles have now given way to blatant violations of Constitution itself.

Sensationalizing of issues

The Lords as I shall call them for I fear being charged for contempt of Court that the courts are so eager to convict for, have developed a practice of sensationalizing the issues at hand. The verdicts are delivered on Friday just like the movies were released in the good old days of Lollywood. The NRO verdict was an exception but the date ‘coincidentally’ chosen for that verdict stood out for other reasons. The people of Pakistan remained glued to screens for hours as the judges took a recess, after they had already reached the verdict. After further hours of deliberation and ensuring that every businessman and investor has been panicked to the hilt, confidence of the nation shaken, a verdict which was expected all along was announced but the damage had been done.

Statements by Judges

The Lords have also developed a habit of giving remarks that are unprecedented. The remarks by judges that have been published as head lines over the year outnumber those by the President or the Prime minister. The remarks are not confined to those given during the proceedings of the Court but also in seminars and visits to the bar associations. That the judge shall speak through his verdicts is apparently not applicable on our Lords, who seem to have taken a leaf from the villainous old hags in the stories of Khawaateen Digest.

Disregard for ethical norms

The Lord are devoid any concept of ethics that need to be observed in the workings of judiciary. The blatant disregard for the principle of seniority was observed in the promotion of Justice Saqib Nisar to the Supreme Court. However, more questionable was that the ethical principle of having parity between provinces was also not observed. The most senior judge after Khwaja Sharif was Chief Justice Peshawar High Court Justice Ijaz Afzal Khan. It may have been Khwaja Shairf’s prerogative to forgo his right but who made the right transferable? Since, one of the two retiring justices was from Peshawar it made sense that he should be sent to Supreme Court. This was not done, making the court acutely imbalanced in terms of ethnic background.

Soldiers of the Chief Justice

The Lords also have decided that it is about time that they should get rid of the ethics regarding the judicial principles where a judge shall not be influence in any way by any other judge. When the President promoted Justice Khwaja Sharif to Supreme Court, a bench was immediately formed to stall the notification. The formation of bench at such short notice, questionable in itself was none the less constitutional. What was not constitutional was the fact that all Justices of the Supreme Court were summoned to Islamabad, where they reportedly met the very next day. The judges met, chatted and in presence of one of the party to the case Chief Justice Iftikhar Muhammad Chaudary apparently reached a verdict in absence of the other party i.e. the government of Pakistan. The following morning the Constitution was further disgraced by its custodians when the judges of Lahore High Court did not hold courts. Whether they officially applied for a leave that the civil court judges did is unclear. They did not however, perform their Constitutional duties. Other notable violations of judicial principles have been the declaration of Judges being the soldiers of CJ Iftikhar and the more notorious talk of chain of command in judiciary being headed by the Chief Justice himself.

Onus of proof

In any judicial system the onus of proof is on the accuser and only after some evidence has been presented against the accused he would be asked to refute the allegation. This was not to be in the case of Jamshed Dasti. The Lords apparently in the absence of substantial evidence decided to take a pop quiz. Asked to recite a few verses and the tables of two he got confused and announced his resignation there by dismissing the case. The Lords assumed the role of the prosecutor and became party to the case showing little regard for rules of law. Justice was not served.

The act of the Court also bordered on violation of the article 13 (b) of the Constitution of 1973, as per which,

No person shall, when accused of an offence, be compelled to be a witness against himself.

NRO verdict

The Lords verdict on 16 December 2009 was judiciary sans grace. The verdict was due to be announced but then delayed as is the practice of the current Court. Reports of shutters being pulled down in Sindh and Balochistan started pouring in and eventually after bringing the nation to the brink of a break down the verdict was delivered.

Much has been written about the poor quality of jurisprudence shown in the verdict but that is another matter. The manner how it was all handled is purely dramatic, was there a need to have a full court? Whether it was right for the Supreme Court to answer questions that were not asked in the petitions? When the Supreme Court itself was on a spree to give free judicial cum Islamic advice in its 300 page verdict, was it not the duty of the Court to clarify its position on the Presidential Indemnity? Why was it that thousands of words were written recounting Suharto, Marcos and others, quotations of Maududi and others but not one word regarding the very article 248 of the Constitution that would need to be interpreted should the cases be reopened? The intention was clearly malafide.

Selective Justice

The Lords may not be hearing cases selectively but it is certainly one hell of a coincidence that the lucky draw always spits out a PPP name. Be it Rehman Malik, Pervaiz Ashraf, Babar Awan, Latif Khosa or any other PPP member, they always get the summons first. The NRO absolved people accused of crimes that were not under purview of NAB, crimes far more heinous than corruption but why only cases under NAB are being considered? The optimists who sincerely want to believe judiciary to be impartial come up with the logic that corruption needs to be tackled from the top. The logic is acceptable, how can a government headed by a corrupt person deliver? But then it is clear that judiciary is not interested in applying the same criteria when it is dealing with the largest province of Pakistan where 57% of the population resides. The numerous cases pending against Khadim e Aala Punjab Shahbaz Sharif are not in the list of cases to be heard anytime soon.

Whither 1973 Constitution

The gross disregard for and rules remind me of the famous quote that the Chief Justice of Pakistan so fervently misquoted during the movement for restoration of judiciary, “absolute power corrupts absolute.” In its wrath the Lords are starting to think that it is about time that they do away with the Constitution. Constitution today is being violated in letter and spirit, the Lords seek to draw their power in their own twisted understanding of right and wrong and free from any form of judicial restraint.

The right to counsel of choice

The right to defend oneself and choose a lawyer of ones own choice is a fundamental right that the Lords have done away with. The conviction of Additional DG FIA Ahmed Riaz Sheikh left many lawyers awestruck. The accused was served the summons to appear before court in the evening of the preceding day and despite the short notice the accused did manage to do so. However, it was in the court room that the Constitution was trampled. When the counsel of the accused Mr Rasheed A Rizvi started presenting the case before the Lords, if media reports are to believed (and since no denial or clarification has been presented by the court I think they are true) the Lords scolded the esteemed lawyer for defending the accused. It is also reported that he was not allowed to complete his arguments and dismissed. The right to counsel of choice and defend oneself was thrown in the bin. The article 10 subsection 1 of the Constitution reads as follows:

10. Safeguards as to arrest and detention.
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.

Independent mind

The actions of the Lords also demonstrated that they lacked another key requirement of a jurist i.e. independence of mind. For this reason Judges who have had appeared as lawyers for an accused refuse to sit in benches as they may not be unbiased. In this case, however, the Lords dislike for the accused was so visible in their desperate attempt to humiliate him and his counsel that I was reminded of the conviction by the all white jury of a black man in the famous Harper Lee novel, To Kill a Mockingbird whereby the only crime of the black man is the color of his skin.

Double jeopardy

Double jeopardy a Constitutional right in many countries including ours and an accepted norm in most is the reasoning that no person shall be punished for the same crime twice. If media reports that Mr Ahmed Riaz Sheikh was convicted upon appeal are to be believed, the question is that since he has completed his imprisonment term why was he sent back to jail? The Lords again were more interested in making a scene than giving any explanation to reduce public anxiety.

The article 13 (a) of the 1973 Constitution states: No person shall be prosecuted or punished for the same offence more than once.

Why are legislators legislating?

The Lords are indeed very talkative reminding me of the saying that ‘sayana kawa goo khaata hai’ (a close translation would be smart asses, shame themselves), The Lords in their routine streak commented, “have not the parliamentarians got anything else to do that they are after judicial reforms.” Well no sir, they have not got anything else to do. Had you not missed those crucial classes in law school you would have known that legislators legislate. They make laws! While our legislators digress and get funds for development they are none the less the domain of the executive and not legislature. So when they are performing their Constitutional duty you should commend their efforts.

Presidential immunity

The last attack on the Constitution at the behest of the Lords is the consistent ignorance of Article 248 of the Constitution. The desperate attempt to reinterpret it is mind boggling. The Lords now say that when the President has not sought refuge under the immunity, cases be reopened in the first instance. A plain reading of the said article would apprise us that the very judge and prosecutor who orders and indulges in bring a proceeding against the President is violating the Constitution. The President does not need to seek immunity but our Lords who were well aware of the dynamics of the article during the dictatorial rule have now forgotten it. A similar immunity is granted all over the world but the heart believes what it wants to believe.

It is clear that the Lords in their absolute power have misunderstood the people of Pakistan. They forget that the struggle by the people of Pakistan was for the rule of law and Constitution, our beloveddastoor. Should they transgress any further, they should know that the same masses under the guidance of the same leaders and lawyers will be ready flood the streets of Islamabad. And though the cause will remain the same too i.e. rule of law, the target this time will be the rule of judges.

First published at: Green Goat’s Hide



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