A judicial magistrate in Lahore ordered the release of former Punjab CM Pervaiz Elahi from a case involving misuse of authority and corruption of one billion rupees, when he was presented before the court for seeking 14 days for investigation by the Anti-Corruption Department. In such cases the courts usually do one of the four things. They accede to the request of remand as requested, reduce the number of days of remand, send the accused to jail on judicial remand for investigation or grant bail to him with the condition that he would cooperate with the concerned authority in the investigation process.
But the judicial magistrate sprung a surprise when he acquitted the accused straight away from the corruption case. Such decisions are delivered after proper investigation and arguments in the court by the lawyers of the accused and the prosecuting agency in case the court feels that the prosecution has failed to substantiate its allegations. The judge has set a new precedent of pre-emptive justice which in other words is a travesty of justice.
However Pervez Elahi was re-arrested in another case soon after his release. The DG Anti-Corruption said that the department would lodge an appeal against the decision. Meanwhile Punjab Information and Culture Minister Amir Mir commenting on the decision said, “It is a testimony to the judicial magistrate’s political affiliation. The judge with political affiliation is giving judgments in important cases. The same judge had earlier given relief to Pervaiz Elahi and Muhammad Khan Bhatti in five cases and the judge’s social media page is the most important proof of his political tilt.” The revelation is indeed very distressing.
Unfortunately such instances are not aplenty only in the lower courts. Even the Supreme Court and High Courts have given verdicts that make a mockery of justice and have been instrumental in the country’s drift to the edge of a precipice. The doctrine of necessity, the verdict in the Bhutto case and the dismissal of Nawaz Sharif in the Panama case, which according to Gen Aslam Beg was a conspiracy, are glaring examples of miscarriage of justice by the pliable judges which have had a profound debilitating impact on the political and economic landscape of the country. Judicial activism since the restoration of judiciary headed by Mr Justice Iftikhar Muhammad Chaudhry after the movement by lawyers has further aggravated the situation.
The outcome of the indiscretions committed by the judiciary which is the most sanctimonious institution of the state and deserves to be held in the highest esteem, is that it has lowered its own prestige in the eyes of the people whose faith and trust in it is also at the lowest ebb.
The verdicts of the Supreme Court, particularly the opinion rendered by it on Article 63A, the restoration of the Pervaiz Elahi government in Punjab and election in the province are instrumental in the burgeoning political crisis the country is facing at the moment. Not only that the judges of the Supreme Court have also trespassed into the domain of Parliament by staying a law which was not even promulgated.
The stay granted on the proceedings of the judicial commission probing the issue of audio leaks without hearing the stakeholders, including the commission, is yet another example of the indiscretions of the judges flouting the relevant rules and practices as rightly pointed out by the head of the commission Mr Justice Qazi Faiz Isa. When any future historian will delve into removing the haze on tragedies which Pakistan had to endure, it will be hard for him not to mention the pliable and unscrupulous judges among the tormentors of this god-gifted state.
All the aforementioned verdicts reflected the will of the judges rather than adherence to the constitution and law. The judges acted more like kings. In the medieval ages when the concepts of democracy, sovereignty of people and government of the people, by the people, for the people were alien to the world, the kings who ruled the states were a law unto themselves. There were no constitutions to regulate their powers. Law was what the Kings would pronounce while adjudicating on issues before them and there was absolutely no check on their indiscretions.
However with the advent of the modern era, the emergence of nation states and the acceptance of the people’s right to choose their own rulers, the states started adopting constitutions that reflected the will of the people as sovereigns. These constitutions invariably delineate an arrangement for distribution of powers between the pillars of the state known as trichotomy of powers.
The judiciary and its members while playing their designated role are under obligation to give their verdicts in conformity with the constitution and law. Regrettably that has not happened in the land of the pure. The result is that the judiciary and arliament are at loggers head. The parliament rightly resented the conduct of the Supreme Court judges. Parliament is the mother of all state institutions including the judiciary. The judiciary cannot dictate to the Parliament.
By committing these indiscretions the judges have nudged the country back to medieval ages. They have also pitched the judiciary against the executive as well which can have disastrous consequences for the country. They must remember that they derive their authority and powers from the constitution and cannot impose their own will in their verdicts like monarchs.
The outcome of the foregoing indiscretions committed by the judiciary which is the most sanctimonious institution of the state and deserves to be held in the highest esteem, is that it has lowered its own prestige in the eyes of the people whose faith and trust in it is also at the lowest ebb.
No wonder then that the Rule of Law Index for 2022 issued by World Justice Project ranks Pakistan 129th out of 140 countries worldwide, rising two positions since last year. According to the report Pakistan ranks 5th out of 6 countries in South Asia. The top performer is Nepal at 69th followed by Sri Lanka and India. The three countries with the lowest scores in the region are Bangladesh, Pakistan and Afghanistan. The rule of law concerns the role of judges in providing justice. The report of the World Justice Project is a moment for the judges of the lower as well as higher judiciary to reflect on their conduct.