Over the years, owing to issuing politically motivated decisions and submitting to the pressure of intelligence agencies, Pakistan’s higher judiciary has lost its credibility. Pakistan has also witnessed the time when the higher judiciary took suo motu notices on even tweets of journalists. Just one tweet of a journalist could move the highest court to divert its eyes from thousands of pending court cases.
On 22 March, the Supreme Court’s senior-most judge Justice Qazi Faez Isa wrote a three-page letter to the Chief Justice of Pakistan Justice Umar Ata Bandial. The letter offers a four-pronged insight into the functioning of the Supreme Court (SC).
First, the SC has transgressed its constitutional mandate by fixing for hearing the presidential reference which had invoked the SC’s advisory jurisdiction to interpret Article 63-A and which had not been filed for hearing. This matter had sought opinion and not an order of the SC.
Second, the SC has overstepped its constitutional mandate by fixing the presidential reference for hearing along with the writ petition of the Supreme Court Bar Association (SCBA) on the no-confidence motion under Article 184(3), which is the original jurisdiction of the SC. The SCBA’s petition had sought an order of the SC. With that, the two matters cannot be heard simultaneously.
Third, the SC has not made any set rules and regulations to constitute benches. Even the past practice of constituting benches on the basis of seniority to hear important constitutional cases has been abandoned for no reason. This is where biases creep in. Like-mindedness is preferred to merit. The outcome of hearing is predetermined. Some judges are deliberately debarred from hearing cases despite the fact that they are the senior-most judges having more experience and knowledge than those who have been included.
Fourth, the SC has made a compromise on collective wisdom. The past practice of consulting with the senior-most judges on matters of public importance in order to make a decision has been terminated.
Fourth, the SC has made a compromise on its independence by retaining a bureaucrat as its registrar, despite the fact that judicial officers can fulfill this post. The current practice of keeping a bureaucrat as the SC’s registrar has made the SC vulnerable to external influences and pressures, besides opening a channel to leak out the proceedings of the court.
The SC exonerated Mr Justice Isa of any blame of misconduct. Anyway, for the truth spoken by a judge, not only the judge but a journalist also paid the price. Unfortunately, this is what Pakistan has turned out to be. Speaking the truth has a cost that the speaker has to pay.
The letter shows that the SC still runs in a manner prejudiced to public interests. This is not the kind of higher judiciary that the people of Pakistan dreamt of. The question is this: when the SC itself is overstepping the prescribed constitutional limits, how can the country run along constitutional lines? A higher judiciary violating rules, laws and constitution cannot discipline other institutions of the country. Such a higher judiciary serves no purpose, other than gobbling up the taxpayers’ money in the name of salary and security. Millions of rupees are spent on the SC each year to deliver what: a compromised higher judiciary, amenable to external pressures. Its efforts for the delivery of justice are otiose meant for an outright dismissal. This one letter has exposed the sordid state of affairs gripping the SC.
Mr Justice Isa is no ordinary judge. He is known for his integrity and intrepid decisions sparing no center of power. In his judgments, he produces legal references and logical reasons that convince a reader of his command of law and h5ssanity. He is also known for his fearless pro-democratic penchant. The reason for his being ostracized despite being a senior judge is known.
In February 2019, in the Faizabad sit-in case, Justice Isa issued a judgment which pointed the finger at the clandestine role of Pakistan’s top intelligence agency in organizing demonstrations– by marshalling religiously fanatic people and by assisting them financially– against a sitting government to make it tumble. In retaliation, the intelligence agency cooked up a case against Mr Justice Isa to blemish his name. The ultimate objective was to exclude him (or make him step down) from the panel of the SC. The case proceeded against him.
As a court reporter, a senior journalist Matiullah Jan, known for his outspoken views, pointed out the biassed behaviour of his fellow judges against Justice Isa. On 21 July 2020, Jan got abducted from the capital city, Islamabad. This was a case of enforced disappearance. He was handcuffed, blindfolded, transported, locked up and beaten, besides being reproved for his crime as a reporter.
Though he got released after 12 hours of illegal detention, a hue and cry gripped the country questioning the democratic credentials of the current government. Interestingly, the fellow judges who heard the case for almost one year acknowledged that the allegations were unfounded, but they shied away from extending a full relief to Mr Justice Isa. On 26 April 2021, the SC exonerated Mr Justice Isa of any blame of misconduct. Anyway, for the truth spoken by a judge, not only the judge but a journalist also paid the price. Unfortunately, this is what Pakistan has turned out to be. Speaking the truth has a cost that the speaker has to pay.
It is unfortunate that the SC becomes an instrument for launching a procrustean rule characterized by reduced opposition, controlled society and structured consent, overlooking the fact that Pakistan is an established democracy run by a written constitution. Jugglery has no place. It is known that frequent martial laws have dented democracy, injured the SC’s desire for independence, and mauled the normalcy of people at large. The Pakistanis desire that their country practice untainted democracy, exercise the supremacy of law, and respect the constitution in letter and spirit. This is why judges like Justice Isa are considered a ray of hope and this is why journalists like Matiullah Jan are revered in society.
It is high time the SC reversed its stature of compromise and observed constitutional supremacy. Reforms should be introduced in the functioning of the SC to restore the trust of people in it.