EDITORIAL: Speaking at the full court reference held in his honour upon reaching superannuation, Justice Maqbool Baqar raised issues that rankle many. Exclusion of certain judges from hearing of sensitive cases on account of their independence and impartial views, he said, tarnishes perceptions about the judiciary’s integrity.
The best way forward, he seemed to suggest, is that the bench hearing cases of a political nature should include members of the august court on the basis of seniority principle. As per tradition and the law at present, however, the Chief Justice has the prerogative to nominate judges for hearing any case. The issue has generated considerable debate. Some have been questioning the present arrangement while others argue that application of the seniority principle alone may not always meet the requirements of justice.
In defence of their contention, the latter point to unsavoury examples from the past that have had grave, far-reaching consequences for the democratic system, such as the 1955 Maulvi Tamizuddin Khan case challenging the then governor general’s dismissal of the prime minister and dissolution of the first Constituent Assembly of Pakistan.
All members of the Justice Muhammad Munir-led apex court (then the Federal Court of Pakistan), with one honourable exception, had ruled in favour of the dismissal applying what came to be known as the ‘Doctrine of Necessity’. Earlier, it may be recalled, the then Sindh Chief Court had ruled that the dissolution of constituent assembly was ultra vires. The infamous ‘Doctrine of Necessity’ was used again to validate Gen Ziaul Haq’s military coup against democratically elected government of prime minister Zulfiqar Ali Bhutto, and later in a trumped up murder allegation against him, first the Lahore High Court and then the Supreme Court benches comprising some senior judges, including the chief justices of the two highest courts pronounced death sentence on him, universally condemned as ‘judicial murder’ never to be used as a precedent.
A few years later, the apex court endorsed another coup maker Gen Pervez Musharraf’s imposition of Provisional Constitutional Order. Nevertheless, it needs to be recognised that the role of the judiciary is to decide cases freely and impartially on the basis of the law and the evidence placed before it. Problems arise when judges are expected to resolve complicated political issues which belong to the domain of Parliament, and subjected to extraneous pressures. Those who insist on staying impartial suffer. As Justice Baqar aptly observed, it would be unfortunate if the tenure of a judge were made subject to the ‘acceptability’ of his judgements, and career prospects jeopardized if his decisions do not go down well with those in power. In effect, it is unfair to burden the judiciary with messy cases involving politicians and extra constitutional forces.
In his illuminating speech, Justice Baqar also alluded to the Justice Qazi Faez Isa’s case to emphasise that disagreement should not lead to departure from the tradition of showing respect for those who give a different ruling by referring to them as “learned brothers’. Nor should it warrant disapproval of the other opinion. In fact, in its verdict on review petition in the same case, a three-member SC bench has expressed serious concern over one of the minority judges’ view that the majority judgement should not be used as legal precedent. Honourable members of the bench rightly averred that ignoring the sanctity and authority of a precedent of a larger bench may pass for judicial arrogance and lead to judicial chaos. It could damage the dignity of higher courts as well.
Copyright Business Recorder, 2022
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