Daily Times

Peshawar High Court Bar Association (PHCBA) in its General Body Meeting held on 27.03.2018 took stalk of the recent developments in the top court. It was convened on a two-pronged agenda: first, Denial of Full Court reference to Justice Dost Muhammad Khan on the occasion of his retirement. Second, proceedings against Justice Qazi Faez Isa by the Supreme Court.

The table settling before the Bar deliberated on the agenda is unfortunate. It frames the agenda parochially as feud between Pakhtuns and non-Pakhtuns.

The motion notes: ‘The political feud between Imran Khan and Sharif Family both from Punjab has unfortunately turned into a conflict between the Supreme Court and its CJP on one hand and Sharif Family on the other.’ Doesn’t the resolution scandalise the Supreme Court by calling it a party aligning with another ‘Punjabi’; Imran Khan, in what is a ‘political feud?’ And it may be a ‘political feud’ but it is most certainly not between two individuals but among major political parties. Political parties raise and settle political issues. Generally, this is how politics pans out between opposition and treasury benches unless PHCBA has different ideas on politics they can enlighten us on.

The underlying Pakhtun spin on the affairs continues as we read on ‘… Justice Dost Muhammad Khan on his retirement from Supreme Court declined to attend a reference in his honour for obvious reasons.’ If he declined to attend his reference how was it denied then? And what obvious reasons? It isn’t mentioned. The resolution singles out another Pakhtun: ‘Another sitting judge of the Supreme Court Justice Faez Isa’s remarks in Sheikh Rashid’s case made the CJP to reopen a dead case against him. Both the judges are Pakhtuns and are competent and vocal judges.’

Our Supreme Court has never been undermined like this by the politicians before. And lawyers, across the country, continue to look the other way. In fact, they are now threatening to take to the streets against the Supreme Court. In these interesting times, we need leadership from both the Bench and the Bar

No dead case has been reopened against the honourable Justice Faez Isa. A petition was filed challenging his simultaneous elevation and appointment as Chief Justice of Balochistan High Court long before the entire ‘feud’ that has now been taken up. A coincidence? Regardless, just because a case is filed and taken up; the Bar would use its pressure to influence the outcome, or worse still, restrain the top Court from hearing the petition? Let the case be decided on merits. There is no doubt that Justice Faez Isa, is perhaps one of the brightest stars to have ever graced the honourable Bench. And this, by the bye, has nothing to do with his ethnic denomination!

At any rate, the opinion of the Bench in Panama Case was authored by Justice Ejaz Afzal, a peer from a ‘smaller province’ and not a Punjabi heading the Bench, and that decision could legitimately be reversed or distinguished in future. So, the concern shown by PHCBA regarding ‘treatment meted-out to the Honourable Judges of Supreme Court belonging to the smaller provinces’ is bereft of context and without substance. This is crass populism by PHCBA.

Justice Dost Muhammad Khan, it appears, has been portrayed as one of the dissidents on the Bench and out of favour being vocal about his dissent. But was he? The honourable Justice was part of the Bench that decided the contempt petition against Daniyal Hashmi. At the conclusion of proceedings, he did not accept the majority opinion or concur with it nor did he record his dissent. Having sat through the length of entire case, the honourable Justice should have exercised independent judgment and applied his mind on the matter. He chose not to. As unfortunate as it is, a full court reference or its denial or refusal of it, cannot be a reason to call nationwide strikes against the top court.

According to the Constitution of PHCBA, per its Article 13, the quorum of Meetings is 10 percent of the total strength of the Bar, however, an Emergency Meeting does not require any quorum or strength. Article 12(vii) states ‘unless the Quorum for a Meeting is complete, its proceedings shall be void’. The General Body Meeting on 27.03.2018 does not mention that it was an extra-ordinary or an emergency meeting nor does it spell out the circumstances necessitating any need for an emergency meeting. It remains for PHCBA to explain the constitutional deficiencies of its General Body Meeting and its effect on subsequent motion that was carried.

The substance of the resolution, notwithstanding its inadequacies, and despite not being happily worded, nonetheless merits attention. The composition of the benches of the Supreme Court, especially in the original jurisdiction, with utmost reverence, needs to be reviewed to address this sentiment. PHCBA is also justified in voicing concern over dilution in separation of powers and the court squarely placed now in the political thicket. But while one can be critical of the surge in populism from the Bench; one cannot condone the manner in which response of PHCBA was articulated. The leadership of the Bar must do better!

There is a popular curse in Chinese: ‘May you live in interesting times’. For both the Bench and Bar these are indeed interesting times. Our Supreme Court has never been undermined like this by the politicians before. And the lawyers, across the country, continue to look the other way. In fact, they are now threatening to take to the streets against the Supreme Court. In these interesting times, we need leadership both from the Bench and Bar. If the Bench and Bar, due to narrowly carved agendas, arrive at loggerheads, as telegraphed by the PHCBA, history will not absolve todays leaders!

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, April 2^nd 2018.