Reference against judges

Updated May 31, 2019

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IF history is any guide, recent developments pertaining to the country’s superior judiciary may be inviting more trouble than is necessary.

The Supreme Judicial Council yesterday issued notices to the attorney general with regard to the references filed against Justice Qazi Faez Isa and Justice Karim Khan Agha by the government. Reportedly, a reference has been filed against another high court judge as well. That the three are sitting justices, meaning they exercise vital decision-making powers that may not be amenable to all quarters, makes the matter all the more significant.

Read: Supreme Judicial Council issues notice to Justice Qazi Faez Isa over reference

Justice Isa’s identity was the first to be known through a media leak, and in a manner that raises questions about transparency and intent. It prompted the judge to write to President Arif Alvi asking for confirmation as to whether the government had taken such a step and a copy of the reference. Further, he said in his letter that, “Selective leaks amount to character assassination, jeopardise my right to due process and fair trial and undermine the institution of the judiciary”.

The point is a valid one.

Such procedural violations impair the ability of a judge to discharge his or her duties effectively, because the credibility of their verdicts is greatly dependent upon unimpeachable personal conduct and the public perception of them as men and women of integrity.

Granted, there is more than one judge whose reputation and career is at stake here, but what has emerged until now — or not emerged, depending on one’s interpretation — has the potential to snowball into something much bigger.

Indeed, even what has transpired thus far has elicited strong reactions from some of the country’s most senior lawyers and several politicians. Additional Attorney General Zahid F. Ebrahim has tendered his resignation, contending that the matter is not about accountability of judges but “a reckless attempt to tarnish the reputation of independent individuals and browbeat the judiciary”. The Pakistan Bar Council vice chairman too has indicated his reservations over the government’s “targeting” of the judge. Few would dispute that Justice Isa has a reputation for independence and plain-speaking, most recently reflected in his scathing verdict on the Faizabad dharna that was bound to ruffle a few feathers.

More clarity about the government’s move is needed to discourage conspiracy theories, but what is certain is that we cannot afford another institutional clash such as the one that triggered the lawyers’ movement in 2007. For despite the eventual success of the mass protests in reclaiming the people’s democratic rights and the rule of law, judicial independence in Pakistan today is under greater strain than ever before. In fact, the country stands at a particularly critical juncture; society — including the ruling classes — is deeply polarised, with a markedly reduced tolerance for dissent and for peaceful resolution of conflicts. These internal frictions make it imperative that no situation be created that could give rise to any further disaffection with the state.

Published in Dawn, May 31st, 2019

Correction: An earlier version of this editorial incorrectly stated that notices were issued by the SJC to the judges. The error is regretted.