- The judgement in Mr Justice Qazi’s case exposes the government
Pakistan is an interesting amalgamation of people adhering to a diverse sets of beliefs. While the nation is bound by the common thread of Islam, even particular beliefs within the folds of Islam are at odds. Concomitantly, the political affiliations and principles of integrity also differ. While there is a prevalence of difference of opinion, however, there is little room for its tolerance. Every individual holds dearly his or her ideas and condescends towards others harboring different views. A difference of opinion is simply not tolerated, on the contrary, it is considered a threat if displayed too openly for those wielding power.
Even the corridors of powers, separated constitutionally, intersect each other occasionally pressing forward different views. The judiciary of Pakistan, for the most part, has been cowered into issuing verdicts on the behest of those seizing power. At other times, judges have also rendered judgements to safeguard the sentimentalities of people as opposed to protecting the Constitution. The infamous doctrine of necessity was nurtured rather carefully while being adhered to as a bulwark against the public reaction to unconstitutional adventures. Fortunately, the past two decades brought about a significant change in the political sphere of our country. The restored judiciary turned out to be more powerful than before; though the judicial activism displayed by some of the captains of the judicial ship cannot be condoned.
We find that the independent application of mind by the President is lacking in the present case. Instead he has followed the advice tendered to him without ascertaining its correctness. This is contrary to the requirements of both Article 209(5) and Article 48(1) of the Constitution and therefore renders the reference defective. If these words cannot muster up the moral courage to abdicate from the office of the President then it is clear that the President lacks the morality his party has so religiously professed
Nevertheless, for the first time in our history, we found ourselves in the presence of a somewhat independent judiciary; certain quarters, however, continue to question this aspect. Mr Justice Qazi Faez Isa is one such example of an independent and bold judge. Known for his uprightness, the learned judge does not shy away from wielding his pen in areas which remain unexplored by the judiciary. Holding to the Constitution dearly, the learned judge has rendered some of the most historic verdicts in our country where all constitutional institutions have been brought into the purview of judicial review on the touchstone of the Constitution itself.
It is in this backdrop that proceedings for the removal of Mr Justice Isa from the office of the judge of the Supreme Court were initiated. The PTI government, driven by rage on certain comments made in the Faizabad verdict, proceeded to file a reference before the Supreme Judicial Council seeking Mr Justice Isa’s removal on allegations of concealment of assets amongst others. The validity of the assertions made in the reference have already been dilated upon by seven learned judges of the Supreme Court, and therefore needs no further comment by any analyst. However, the essence of the detailed judgement reveals that the PTI government proceeded to interpret certain provisions of our laws which had never been dilated upon by the judiciary nor was there any precedent regarding the same. In the absence of a judicial interpretation of these laws, the federal government proceeded to accept the interpretation of those not qualified to interpret them. Conclusively, the reference has been quashed and allegations therein have been rejected.
For now, the stance of Mr Justice Isa is vindicated and, indeed, the truth behind these references has been revealed. Though the Supreme Court hasn’t bought the allegations of institutional manipulation, it has conceded that malice in law stands established and the reference contains fatal defects. The judges may not have said it, but it is clear between the lines that what Mr Justice Isa had contended was indeed the truth.
After a continued opportunity to defend their actions, the Supreme Court has finally given its detailed findings on the references. Without devolving into the detailed judgement, as a democratic nation, it is clear that some of the constitutional office bearers have failed to discharge their duties in accordance with law. Starting from the President, an entire portion under a separate heading is attributed to the President of the Islamic Republic of Pakistan and his actions which have been found to be offensive towards the scheme of law. To begin with, he sought the advice of two individuals who had a conflict of interest as they were the orchestrators of the reference. At the next stage, the President failed to form his independent opinion and simply acted upon the advice of the Prime Minister, effectively highlighting his role synonymous to a dummy. Although moral courage has not been displayed by the PTI government in the past however, the least they could do in the current circumstances would be to remove the Law Minister and the President, forming an opinion of his own, should resign from his post if any semblance of morality remains.
Imran Khan, on countless occasions, has cited examples of display of moral courage in the West and yet, when it comes to his own, he has no longing for enforcing western practices. The highest constitutional court of the country with no less than 10 judges have formed the view: we find that the independent application of mind by the President is lacking in the present case. Instead he has followed the advice tendered to him without ascertaining its correctness. This is contrary to the requirements of both Article 209(5) and Article 48(1) of the Constitution and therefore renders the reference defective.
If these words cannot muster up the moral courage to abdicate from the office of the President then it is clear that the President lacks the morality his party has so religiously professed. Not long ago, a learned judge of the Supreme Court had tendered his resignation as some of his administrative orders had been set aside by the Court. He was not required to do so as the orders in question were a couple of years older and were passed in administrative capacity. However, his moral conscience did not allow him to hold constitutional office.
Whereas the hypocritical PTI government is silent and no talk about any resignations can be heard from within the folds of the party. Failing to step down, under the circumstances, cements the notion that the PTI government is not ready to accept difference of opinion even if it comes from a majority of the judges of the Supreme Court. Ironically enough:
“Dhool chehre par thi aur aaina saaf karta raha”
