In a report submitted to the United Nations Human Rights Council on 29 April 2019, the United Nations Special Rapporteur on the independence of judges and lawyers made a key observation of relevance to us in Pakistan: “At times, judges and prosecutors are subjected to disciplinary sanctions, including suspension and removal from office, for exercising their right to freedom of expression, alone or in association with others, in a courtroom or on a social media platform. In the vast majority of cases, disciplinary proceedings are initiated on the basis of an alleged violation of the duties that judges and prosecutors are bound to fulfill in their capacity as civil servants”.
We, in Pakistan, have seen clear attempts to influence and control the judiciary in the shape of the presidential reference filed against Justice Qazi Faez Isa. This reference isn’t just for Justice Isa: it serves as a warning for all those judges on the bench who dare to think they can uphold the Constitution when it is violated by the most powerful institution in the country.
There has been an organized campaign aimed at vilifying and humiliating one of our country’s most honest, impartial and independent judges. And the reason for this campaign can be found in the judgment of Justice Qazi Faez Isa in Suo Moto Case No. 7/2017, known more popularly as the “Faizabad dharna judgment”.
Justice Isa’s judgment in Suo Moto Case No. 7/2017 shook the façade of democracy, civilian supremacy and accountability in Pakistan. Upon reading the judgment, there can be no doubt left in the public’s minds that this reference is nothing more than a witch-hunt to punish a judge for doing his job, i.e. upholding the rights and duties provided for in the Constitution.
There is ample evidence reflecting that this presidential reference has no basis in law. The presidential reference alleges that Justice Isa owns property in the United Kingdom in the name of his spouse and children that he did not declare in his wealth statement, thus he is liable for a violation of the law and for judicial misconduct.
The powers that are granted under the Constitution are to be exercised transparently and in a just and fair manner. The power of the president is not unfettered. It is (or at least ought to be) understood that authority should be exercised in good faith. The President has the authority to file a presidential reference provided he has sufficient evidence and knowledge of alleged misconduct. This power cannot be exercised arbitrarily, as per the whim and fancy of different presidents. However, as the proceedings continue, it is becoming crystal clear that there is no evidence for this reference, i.e. it appears that the allegations are completely baseless, indicating that the reference itself is an abuse of process and power.
In fact, thus far, the Supreme Court has reportedly asked Mr Farogh Naseem whose idea it was to file this reference. Justice Muneeb Akhtar reportedly stated, during proceedings: “I am saying that the bright light made a very serious error of judgment”. This is indeed a very serious error of judgment. The question is: will those who made this error in judgment ever be held responsible for what they have done?
The judgment authored by Justice Isa in the Faizabad dharna case itself sheds light on the civil-military imbalance that has destroyed this country’s institutions. It is, therefore, important to remind the public of context and what happened during the Faizabad dharna.
Paragraph 4 of the judgment reads: “The leaders of the dharna intimidated, hurled threats, abused, provoked and promoted hatred. The media provided unabated coverage to TLP. Anyone having a grouse against the government joined in”. Mighty strange that the media had absolute freedom to broadcast clearly “illegal actions of the protestors” (para. 14 of the judgment), but cannot dream of covering peaceful protests erupting across Balochistan this week.
We cannot forget that this is illustrative of the parallel system that operates to maintain the unchecked power of the powers that be. The result of the Faizabad dharna was loss of human life and immense damage to public and private property – paragraph 13 of the judgment noted: “Rawalpindi and Islamabad were brought to a grinding halt”. What were the consequences for this widespread damage and destruction?
Justice Isa quite clearly highlighted the consequences in paragraph 15 of the judgment: “The law enforcement personnel were not allowed to use firearms and were provided only with anti-riot equipment… But, before the Army was deployed the matter was resolved between the Government and the protestors on the night of 26 November 2017, and TLP and its supporters, who received payment from men in uniform, dispersed”.
The reality is that Justice Isa highlighted what Babar Sattar has termed “the inherent conflict between the de facto and the de jure”, and he will continue to suffer for this even after this reference saga is over. How the reference is playing out is even more of an insult to the people and institutions of this country: such a blatant attack on the judiciary is taking place in the public eye. Let us bear in mind that the judiciary is not alone: similar attacks have been deliberately perpetrated against the media.
While Justice Isa is answering what has been asked of him, has what he ordered in the Faizabad dharna judgment been observed? Paragraph 53(15) of the judgment clearly gave the following direction: “The Government of Pakistan through the Ministry of Defence and the respective Chiefs of the Army, the Navy and the Air Force are directed to initiate action against the personnel under their command who are found to have violated their oath”. There can be no accountability unless there is across the board accountability.
The vessels through which unlawful power and control are exercised are equally responsible for inflicting immense damage on Pakistan’s institutions.
Surely, there has to be some degree of accountability for the systematic and organized destruction and weakening of civilian institutions in this country. Those who participate in its destruction conveniently find support in every political government.
One of the key players in this deliberate assault on the independence of the judiciary is our law-minister-turned-lawyer. As Justice Isa rightly pointed out, this gentleman’s conduct falls within the definition of “tout”, as given in Section 2(m) of the Legal Practitioners and Bar Councils Act 1973. Not a fan of Winston Churchill but one of his quotes describes this conduct perfectly: “An appeaser is one who feeds a crocodile, hoping it will eat him last”. The law-minister-turned-lawyer seems to have forgotten the rule: he too will be eaten when he is no longer required.
Ultimately, the critical question that arises is whether key institutions in Pakistan will function in respect of the Constitution that empowers them while clearly delineating boundaries, or will these boundaries continue to be crossed to the detriment of the rule of law, public order, and balance of power?