On the fateful morning of 9 March 2007, while seeing off Sharifuddin Pirzada, who had gone there to brief him on the OIC Charter’s amendments, General Musharraf casually asked him how long would it take to remove a judge by the Supreme Judicial Council (SJC)? Six months to a year at least. “But I am told that it might take only six days,” said General Musharraf. “Whosoever told you, he does not know anything,” politely responded Pirzada. Subsequent events of that day were to cast a long shadow upon the history of Pakistan. SJC created under Article 209 of the Constitution was set in motion against the Chief Justice. It was the first case in 37 years.
Earlier, a letter written by Naeem Bukhari against the then Chief Justice Iftikhar Chaudhry was publicly circulated. The Chief Justice asked Pirzada to intervene in the matter but the latter showed his inability because the Chief of Staff of General Musharraf, Lt-Gen Hamid Javed (retd), had virtually denied Pirzada access to the General and had closed the door for sane advice. Even the afore-said meeting became possible due to the importance of the issue. Pirzada was no more invited to state functions by the Chief of Staff to the president. After filing of constitutional petition by the Chief Justice against General Musharraf, the General personally requested Pirzada to appear for him. He obliged for the sake of old times.
It soon became clear that an incomplete reference was undefendable. Moreover, there was a series of blunders at every step which showed that President Musharraf was perhaps duped into making the mistake of filing that reference. It also became obvious from the daily observations of the bench hearing the constitution petition that the peers were unwilling to judge against one of their own despite all-out efforts by the government. The chain of events graphically given in the Supreme Court’s judgement of 20 July 2007 showed that the whole action was based on mala fides. The newly freed media brutally turned against the General. There were Brutus all around.
SJC proceedings were not subject to a judicial review in view of bar contained in Article 211. The court crafted its opinion on pre-reference events avoiding the bar and struck it down on the ground of mala fides of pre-reference acts. The case against the Chief Justice ended before reaching its merits. As if that embarrassment was not enough, Musharraf was led to making the disastrous act of 3 November 2007. Lawyers’ movement was now joined by the political parties.
After his restoration on 22 March 2009, the Chief Justice enjoyed unrivalled and unprecedented authority and created awe and fear in the hearts of the mighty and powerful. His singular achievement was that he kept the court united. His critics however say he undermined the court with some controversial decisions and appointments. It is said that he had the opportunity to reform the chronically ill and corrupt judicial system of Pakistan but it was lost in petty causes.
History repeated itself after a decade (2019) when a reference was filed against Justice Qazi Faez Isa. It was clear from day one that it was based upon an ill advice if not again a deliberate effort to duping the Government into making a bigger blunder. After the Quetta Commission Report (2016) a proposal for filing a reference against the Hon’ble Judge was under a serious consideration. Better sense prevailed when it was suggested that the objectionable observations could be got diluted. Ultimately, the Supreme Court diluted those observations.
Then came along Dharna case (2018). The then government fully knew its implications. Despite serious observations made by the Hon’ble Judge on each date of hearing no effort was made to make a proper representation before the court. In fact, the government was quite happy with it. When the judgement was pronounced it was damning. In the meantime, the government changed. The concerned quarters became active and sought opinion from their legal experts who it seems pleased them by advising the filing of a reference without pointing out difficulties involved in the process of judging by the peers. An investigation was launched to dig out material for a reference against the Hon’ble judge.
The Hon’ble Judge filed a constitution petition challenging the reference. Once again, mala fides were alleged. The chain of events canvassed by his formidable legal team easily established mala fides and lack of proper application of mind by the President. The reference was ultimately quashed by the Supreme Court. The media fully supported the Hon’ble Judge. During the review proceedings that were conducted by the Hon’ble judge and his wife personally, the Supreme Court was clearly divided. The public perception was against the reference from day one. Some critics argue that swing of two judges during the review proceedings was the turning point. One hopes that better sense prevails. The Hon’ble Judge may have won but the Court has lost as it is visibly a divided Court and this is not a good or happy situation. History might repeat itself in more than one way.
Judging by the peers was introduced under the Constitution of 1962. The provision was borrowed from the constitution of Cyprus. Under the short-lived Constitution of 1956 drafted on the pattern of the Government of India Act, 1935 and the Indian Constitution, the power of impeachment of judges rested with Parliament. Present Constitution kept provisions on Judiciary of 1962 Constitution including SJC. According to the late Abdul Hafeez Pirzada a proposal was under consideration by the Constitution Committee to change the provisions of removal of judges back to 1956 Constitution. But the Chief Justices flew to Islamabad and threatened to resign en masse. It killed the proposal. Judiciary was unwilling to accept any check upon itself.
The experiment of judging by the peers has proven to be ineffective for the accountability of judiciary in Pakistan. Any action against a Supreme Court judge by the Executive is termed mala fides. On the other hand by creating a firewall through a judicial pronouncement (Asfand Yar Wali case 2001) it is impossible to hold them accountable by any other means. With the exercise of judicial review over SJC by the Supreme Court despite there being a bar under Article 211 of the Constitution it is now virtually impossible to proceed against a Judge of the Supreme Court. Even their administrative acts are now immune. The word ‘person’ as used in Article 199(5) excludes High Court and the Supreme Court for both administrative and judicial acts now according to the dictum of the Supreme Court. When the said provision was adopted in 1962 (Article 98) and then continued in 1973, the power of appointment of judges and the staff of the High courts and the Supreme Court was vested in the Executive. The intent of the constitution makers was to provide immunity to judicial acts only in the public interest. The Sharaf Faridi’s (1994) and Al-Jehad (1996) cases took that power originally vested in the Executive by the Constitution and gave it to the judiciary. But the Constitution is what the judges say. It is now certain that no judge can be removed unless the Judiciary (the Supreme Court) is willing to remove him. During seventy-four years only three judges of High Courts were removed and that too when the Supreme Court judges were willing to do so.
When institutions created under the constitution start claiming immunity from accountability and shy away from the public gaze in their affairs, then democracy, rule of law and constitutionalism sound like empty vessels. In the exercise of judicial power two sitting Prime Ministers were sent home despite the fact that they were duly elected and Article 225 provided a clear bar. It seems that although Article 58 (2) (b) was repealed but it came back in the form of judicial review under Article 184(3) of the Constitution. The Judicial branch with its extended and frequent exercise of judicial power against the coordinate branches of the Government against the original intent of the Constitution has weakened other branches of the Government according to some writers. By making itself unaccountable the Judiciary in Pakistan has virtually become autocratic–establishing a judiciocracy. The Judiciary must jealously guard its independence against all intrusions. But in order to restore the public confidence it is necessary that the Judiciary sets its own house in order.
Copyright Business Recorder, 2021