Credibility of the higher judiciary

The Bhatti video is particularly damaging

This time not any sundry audio or video leak but an issued video has initiated the turbulence bringing into question the conduct of the higher judiciary.

Reality is dawning to the dismay of many: the higher judiciary is standing short of meeting the requisite standards of conduct. The tyranny is that each judge costs the national exchequer millions of rupees per month, both before and after retirement.

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Judges of the higher judiciary are still living in a bubble ensuring their inviolability despite all indiscretions. The bubble has been punctured by the confessions and revelations made by Muhammad Khan Bhatti, who spoke in the video released recently. He was the principal secretary to ex-Chief Minister Chaudhry Pervaiz Elahi.

What he is saying is a matter of shame eroding the credibility of the higher judiciary. The Chief Justice of Pakistan, Mr Justice Umar Ata Bandial, cannot avoid taking the notice of growing discontent in the public impugning the credibility of the higher judiciary.

There are two serious allegations: first, benches are contrived to dispense a kind of decision; and second, judges are managed from outside the courts.

An example can be cited. In the LHC, in January 2020, when a three-member bench comprising Justice Mazahar Ali Akbar Naqvi, Justice Ameer Bhatti and Justice Chaudhry Masood Jahangir was hearing the case of high treason (which had been committed by former military dictator General (retd) Pervez Musharraf), it was being bandied about amongst court reporters that the decision would be delivered in the favour of General (retd) Musharraf. It was astonishing how the court reporters could predict so.

Further, it was also being tossed around that, in return, one judge would be promoted to the SC and one judge would be made the Chief Justice of the LHC. On January 13, the bench annulled unanimously the death sentence which had been delivered (on 17 December 2019) by a special court comprising Chief Justice Waqar Ahmed Seth (Peshawar High Court), Justice Nazar Akbar (Sindh High Court) and Justice Shahid Karim (LHC) who had found General (retd) Musharraf guilty of high treason and sentenced him to death under Article 6 of the Constitution for imposing the second martial law of his tenure on 3 November 2007.

There are serious allegations leveled at certain judges of both the SC and the LHC, which run on the taxpayers’ money. Time is running out. The higher judiciary has to come clean about its credibility.

The three-member bench of the LHC gave its unanimous verdict on the pretext that the case against General (retd) Musharraf was not framed as per the law. The lame excuse created is a major reason for not letting democracy be established in this country and for inviting more martial laws with impunity. The decision is an example of how certain judges are always ready to serve the cause of military dictators.

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The question is this: how do the court reporters know about the outcome of a case, and the sequence of events afterwards? The probable answer is this: by attending courts, the court reporters keep on observing judges over time. Exposure helps the court reporters predict a decision. Experience helps them overhear what is happening out of the court.

In a bench, the combination of judges reinforces the opinion of court reporters. The terms such as “bench fixation” or the “like-minded judges” have also been devised by the court reporters. That is, judges of the same opinion are assembled together in a bench (as a majority) to issue a verdict of choice. A minority of dissident judges is added to get a split (but favoured) verdict to put on the semblance of authenticity. This is how the higher judiciary allegedly works.

In 2019 and 2020, the government of the Pakistan Tehrek-e-Insaf (PTI) remained instrumental in stopping the special court from issuing a decision on the treason case of General (retd) Musharraf. The PTI government first moved the Islamabad High Court directly against the special court and then the LHC (indirectly through a lawyer) to seek the desired verdict. Apparently, the LHC was selected for its amenability. Consequently, the like-minded bench delivered the wanted verdict. The impression was rife that the judges were managed both inside and outside the court.

During its stint in power, the PTI kept on chanting the mantra of the same page: the government and the military were one soul, two bodies. One was a reflection of the other. On 23 November 2022, while delivering a speech at the Defence and Martyrs day ceremony, the outgoing Army Chief General (retd) Qamar Javed Bajwa made an unequivocal admission: the Army had been involved in politics till February 2021.

Obviously, the PTI had served the purpose by playing second fiddle to the Army. One of the deliveries was saving the skin of General (retd) Musharraf from Article 6. Afterwards, the PTI stood as a spent cartridge. The PTI was also required to undo the 18th Constitutional Amendment but the party could not serve the purpose, owing to performing poorly on the economy.

The reverse side of the argument is that if the PTI had performed well on the economy, an attempt could have been made to revoke the 18th Constitutional Amendment through introducing another amendment. However, the PTI’s underperformance dismayed the handlers who left the party to its own devices. 10 April 2022 saw the exclusion of the PTI from the National Assembly through a vote of no-confidence. The PTI was left with the higher judiciary, the third part of the nexus that helped the party reach the corridors of power in 2018. The higher judiciary is the last man standing to buttress the PTI now in the streets. Nevertheless, the emerged video broadcasting the confessional statement of Muhammad Khan Bhatti has exposed the last man, who is standing by the PTI.

The Chief Justice of the SC is overlooking the fact that all judges work under the Constitution and law. No judge is above the law. The Chief Justice has no authority to support the fellow judges by including them in benches and by not resorting to holding an inquiry against them. The higher judiciary is lucky that petitioners have not boycotted those judges whose repute is in question.

There are serious allegations leveled at certain judges of both the SC and the LHC, which run on the taxpayers’ money. Time is running out. The higher judiciary has to come clean about its credibility.

Dr Qaisar Rashid
Dr Qaisar Rashid
The writer is a freelance journalist and can be reached at [email protected]


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