Pakistan: Judicial Populism Goes on
By Dr Mohammad Taqi
Florida
“Judges have always developed laws and adapted them to the needs of society through interpretation of laws in accordance with the settled rules for the construction of laws” — Justice Dorab Patel.
In his recent op-ed titled “Independence of Judiciary”, the respected former judge of the Supreme Court (SC) Justice (retired) Sardar Mohammad Raza has raised very pertinent questions about the post-restoration superior judiciary. Justice Raza has raised concerns about the corrupt judges, talking judges, “judges with bias, petulance and prejudice”, and, perhaps most ominously, the judges who indulge in the “naked usurpation of the legislative function under the thin disguise of interpretation”.
Justice Raza probably is the first senior judge to voice openly these apprehensions. However, leaders of the Bar Associations, the Human Rights Commission of Pakistan and, indeed, the International Commission of Jurists in their writings and reports have been consistently warning about the populism and indeed a messiah complex rampant in the superior judiciary. True to his reputation as a thorough gentleman and an upright judge, Justice Raza has not named any names. But it is hard not to make a connection between the disturbing issues that he has pointed out and the aggressive, in fact pugilistic posture adopted by the present apex court, which seems to have anointed itself as the sole arbiter of the nation’s wellbeing. And, to put it mildly, the picture is anything but pleasant.
Justice Raza’s article comes at a time when the SC is hearing the petitions filed by Hussain Haqqani challenging its own original decision and the findings of the judicial commission in the so-called ‘Memogate’ affair. While the matter is rather off the media and political radar at present, this is one case where judicial activism, populism, petulance, prejudice and political power play were rolled into one. At the outset, the SC in a contentious move entertained a litany of petitions by professional and political petitioners who claimed that the alleged memo has undermined the “national interest” and was, therefore, an infringement of their fundamental rights. The SC took it upon itself not only to determine that the nebulous national interest was threatened but went on to appoint a judicial commission to investigate the matter. The SC asserting its jurisdiction in the memo matter on the grounds that ‘national security’ was a fundamental right was a real stretch even by the standards of activism set by the present bench.
The SC and the High Court (HC) are both courts of record and the HC is not subordinate to the SC. The SC may not order the HC to form such a commission and in fact, under the Pakistani Civil Procedure Code, a commission to examine any person or evidence may be deputed to any court except ‘a High Court’. Additionally, no clear terms of reference regarding the scope and conduct of this highly unusual commission were set. Contrary to Justice Patel’s above proviso, the law was created, not interpreted here. The result was that a prima facie unconstitutional commission carried out what increasingly looked like a witch-hunt and did so without following the civil or the criminal procedure code. To find a talking judge who besmirches the defendant one need not look any further than Justice Qazi Faez Issa, who presided over the Memo Commission.
According to the media reports at the time, Justice Faez Issa constantly made disparaging remarks about Husain Haqqani during the Commission proceedings. But the threats from the rostrum to the former ambassador that his family could be dragged before the commission were really shocking. Mr Haqqani’s legal team has claimed that Justice Issa used to edit the record so that his prejudicial remarks were not reflected in it. Furthermore, the video documentation of the Commission’s proceedings is apparently not being shared with Mr Haqqani’s counsel. If true, this is a serious charge and the SC must address this issue. The Commission had refused to include any document produced by Mr Haqqani’s lawyers and the production of the video recording may be the only way to establish the transparency of the Commission’s proceedings.
However, even when Mr Haqqani’s distinguished attorney, Asma Jahangir has challenged the constitutional and legal basis of the entire proceedings in the memo case, instead of debating and deciding it one way or the other, the SC seems to be holding on to yet another populist prop. It wants Husain Haqqani to appear in person before the bench. Customarily, respondents in a constitutional petition are not required to appear before the SC in person. It is neither a criminal trial nor the court a magistrate’s court, or for that matter a primitive Qazi court or a tribal assembly where the accused had to be hauled before it. Insisting on only one respondent to appear before the court at time when the original proceedings are impugned in the review smacks of a diversion being sought. And more so when Mr Haqqani is not even a defendant in the case as there is no criminal case yet — something the SC itself acknowledges.
Demanding Mr Haqqani’s personal appearance before it — when he is not the accused in the legal sense — might make for catchy headlines but does little to resolve the crucial matters of law before the SC. And frankly, the SC’s assurance to provide security to Mr Haqqani when the bench continues to skirt the question as to who took away his passport last November, does little to assuage the man’s concerns. Justice Faez Issa’s remark that the former ambassador is ‘disloyal to Pakistan’ has virtually made him a marked man. After Salmaan Taseer’s brutal assassination and the way Justice Pervez Shah, who sentenced Taseer’s killer, had to flee the country fearing for his life, the world would be closely watching how the SC handles the matter of yet another high profile person stigmatized by the judiciary, media and certain politicos.
Justice Sardar Mohammad Raza is spot on in writing that “the independence (of the judiciary), in fact and in practice, is referable not to the abstract but to the judges who constitute the judiciary.” Judicial independence is a direct function of the credibility of the incumbent judiciary and not merely the cold letters of some printed doctrine. It is an evolving process, which can progress exponentially under a responsible stewardship in the right milieu. Alternatively, giving in to populist temptations can make it go awry to the extent that the ostensible quest for independence could result in judicial chaos.
(The writer can be reached at mazdaki@me.com. He tweets at http://twitter.com/mazdaki )
--------------------------------------------------------------------
Back to Pakistanlink Homepage
