Daily Times

My Lords in the preservation of justice encounter challenging times. From lack of security to defamation and undue interference, irking my Lords remains a trending issue.

The startling letter written by six judges of the Islamabad High Court to the Supreme Judicial Council regarding attempts to pressurize judges through abduction and torture of their relatives as well as alleging secret surveillance inside their homes and interference of the security apparatus. The judges wrote: “We are writing to seek guidance from the Supreme Judicial Council (SJC) with regard to the duty of a judge to report and respond to actions on part of members of the executive, including operatives of intelligence agencies, that seek to interfere with discharge of his/her official functions and qualify as intimidation, as well as the duty to report any such actions that come to his/her attention in relation to colleagues and/or members of the courts that the High Court supervises.”

A common opinion is that the six judges have shown immense courage by speaking out and pushing back against the military’s alleged intervention at a time when silent acceptance is the option exercised by most. However, the aforementioned is a matter of transparent probe and serious response by the judiciary itself. Such grave apprehensions which might be in the minds of honorable judges cannot be trivialised. Nevertheless, initiating suo motu proceeding to delve into the allegations raised by the superior court judges will barely work for the divergentjudicature. It is undeniable that if judges persist divided and oppose each other’s views openly in court, the judiciary will undoubtedly suffer further weakening.

Certainly, the political debate and criticism on merits is an essential element of democratic society and improve the quality of courts. Assault against the state institutions of critical intensity is a warning that the attacks not only “threaten to weaken the Constitutional structure of any nation” also put its independence and separation of powers at risk. Every appeal, every petition for rehearing, every dissent is a disparagement of the judicial decision. One should ask if the decisions were correct or not. What does the Constitution require? Should it be amended? If the case involved a matter of statutoryinterpretation, should Parliament respond with legislation? Yet,irresponsible intrusion which brings about the removal of judges from office or influences their decisions is incompatible with judicial independence and the rule of law. Don Sundquist, asserted: “Should a judge look over his shoulder [when making decisions] about whether they’re going to be thrown out of office?”

In a bid to subvert the Judicial system of the country, Shakirullah Marwat-the session judge of South Waziristan merged district, who was not only kidnapped but an incident thatdelivered a wrong message to the public. The abduction thatposed an eminent threat to the security of judges also produced a sense of insecurity amongst the judges and their families. To undermine the judiciary or to undermine the independence of national courts, is to strip citizens of their fundamental rights. Hence, the same be freed from oppression and it is necessary toconstruct the environment in which judges can dispense justice without fear or favors.

In principle, the judiciary its decisions and actions of judges are not and must not be exempted from scrutiny. However, there is a fine line between freedom of expression and legitimate criticism on the one hand and undue pressure on the other. So far it’sbothersome, if representatives of other branches of government sabotage and try to delegitimize the justices. Why because justice cannot be brought amidst efforts to poke judges in office for popular decisions. As according to Pound’s philosophy “If we want the judiciary to do something, we must give it the freedom to do it”.

Little has been achieved so far by the dichotomized bench, after the watch dogs, Bar Councils, Bar Association’s and civil society in a joint letter — had urged the top court to take “cognisance of the matter in its jurisdiction under Article 184(3) of the Constitution as this issue relates to public interest and to the enforcement of fundamental rights”.  There is a thaw to determine their course of action over an incident which is a question mark on the efficiency of law enforcement agencies.

The incumbent rift- neither a novel phenomenon nor limited to Pakistan that produces such a distorting mirror image of the Pakistan’s institutions. In November 2016, after a three judge panel of the High court of Justice for England and Whales decided that Article 50 TEU could only be triggered after an Act of Parliament, the Daily Mail opened with a photograph of the judges and the headline “ENEMIES OF THE PEOPLE”.Although Judges are also responsible like all other citizens ifbreak the law but glaring intrusion by any means that the former alleged is bound to change. Allegiance to the rule of law should remain safe and uncompromised. The prime loyalties of the judges are not to the agencies but Constitution and law. The spine of judiciary is a commitment doing the right thing in the right way on the right time. For good measure, with a view toameliorate the authority of the courts and its paramount veneration, Law schools must instill in their students esteem for the supremacy of law. As aspiring attorney’s should not only defend, also brighten the tainted picture of their judicial system.

Consequently, seems like the onus lies on My Lordship Qazi Faez Isa, to resolutely respond the interference, rather aiming for extension, as his steps will reveal how serious he is to protect the autonomy of judiciary. The courts have spoken and their voice must be heard for better judicial outcomes. Escaping further repercussions, it is for the Federal Government-that controls the intelligence agencies to explain its position,regrettably till date, it was unable to submit its response. Apart from that, here is a particularly urgent need for unconstrainedcourts which will rely single handedly on the Constitution. To balance the right of free speech and the legitimate interest of the courts to not have its licitness and freedom abridged by political actors or any state agency necessitate the frame of reference.

As a matter of exigency, things must reach some resolution to restore the missing status of institutions.

The writer is an advocate High Court and a social activist.

binashahid21@gmail.com

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