IF dictionaries ever gave specific examples to illustrate the meaning of a word, Pakistan’s ruling elite would undoubtedly fall under the term ‘incorrigible’. The latter word has been defined as something that is impossible to change or which is incapable of reform, i.e., something or someone who is unwilling to learn from his or her past mistakes. And if there is any class in any country which prides itself on refusing to learn, failing to reform, and being indifferent to the rule of law, it is Pakistan’s all-knowing, or rather, not-knowing, ruling elite.
When Justice Qazi Faez Isa, as he was then, was being mercilessly targeted by the then ruling elite for his judgments, which among others included those criticising the military’s suspected role in the Faizabad dharna, the PTI opened up a scathing front against him. They filed a reference against the future chief justice of Pakistan in an attempt to have him removed. Some say they did so out of their own volition, whereas others claim they were acting at the behest of a greater power.
Whatever the case might have been, many swiftly came to Justice Isa’s defence in the name of an independent judiciary. Despite this, a full-blown media campaign was orchestrated to demonise him and his family. When the dust finally settled on the ordeal he and his family suffered, and justice (no pun intended) ultimately prevailed in the quashing of the reference against him, one had hoped that those in power would finally see reason, especially in light of the embarrassing manner in which they had to retreat. But clearly, we were wrong.
If the letter signed by six sitting judges of the Islamabad High Court is evidence of something, it is that the executive, or those that come under it, have learnt absolutely nothing. It seems that they consider the independence of the judiciary a nuisance to be regulated and suppressed rather than a pivotal check and balance against the arbitrary misuse of executive authority. They see a competent and independent judge as a threat, and an unscrupulous and unprincipled politician or bureaucrat as an ally. They see an honest judge as dangerous, and an allegedly compromised one as amenable to being ‘managed’. They see judicial independence as limiting, and a dependent judiciary as limitless.
Difficult questions will have to be asked, no matter how problematic.
This is what the judiciary is up against, and this is why the word ‘incorrigible’ makes perfect sense. But although we are painfully aware that these elites are not willing to learn, we must also ask if the judiciary itself has learnt lessons from its past experiences, and in doing so, whether or not it has prepared a robust response to attempts to interfere in its independence.
Thus far, its response to alleged interference has hardly been substantial. In fact, for an institution which claims to jealously guard its independence, the urgency in its response appears to have been missing. Perhaps this would be understandable had it been the first time that something of this nature was happening. Perhaps it would be understandable if no judge and his/her credentials had been targeted in such a manner prior to this incident. Or perhaps it would be understandable if this had happened during the tenure of a chief justice who had not himself experienced executive high-handedness.
But in these times, accepting a ‘perhaps’ is as unfathomable as is the refusal of the ruling elite to learn from history. The judiciary must act — without delay. Difficult and pointed questions will have to be asked, no matter how problematic.
For example, why is it that whenever a judge is seen as being critical that allegations of this nature start rearing their ugly head? Why is it that the credentials and background of a judge are considered satisfactory enough for his appointment but somehow become unsatisfactory when he or she exhibits an independent streak with regard to matters concerning the security apparatus? Why is it that whenever a judge’s observations in a judgment are disagreed with, his family and personal life are likely to be targeted via a vicious vilification campaign? How is it that the Judicial Commission and Parliamentary Committee, with all the resources at their disposal, including perhaps reports and insight from various agencies, are unable to ascertain the most basic of alleged ‘discrepancies’ in the records of those aspiring to be judges, who are subject to a media trial? To put it another way, how did the records of judges, flawless and fully acceptable at the time of the appointment, become discrepancy-riddled later?
These are important questions. This country is at a juncture where, unfortunately, even asking questions has become a courageous action. However, dare I say, the judiciary’s responsibility is much greater than to simply ask questions. It has to ask the right questions, and along with that, ensure that it receives the right answers as well.
As such, it is time for the judiciary to offer a unified institutional response against attempts to influence, isolate, and break independent judges. The judges in question cannot and must not be left to fend for themselves, and the persons or authorities seeking to ‘regulate’ independent judges must not be allowed to do so.
These judges, whoever they may be, must receive the full support of the judiciary, the bar associations, and civil society. A clear message needs to be sent out to all that enough is enough. And frankly, as far as I am concerned, there is no better person to send out that message than the very person who has faced this high-handed behaviour first-hand, and has persevered in the face of it. Let’s hope he does.
The writer is a lawyer based in Karachi.
Published in Dawn, May 3rd, 2024
