Themis was the Greek God of fairness, law and custom. Carrying a sword in one hand and the ‘Scales of Justice’ in the other, for her there was no middle way. The sword would help her sever fiction from fact, and the scales would allow her to evaluate the strength of arguments. Themis would never die, for she was a phenomenon; the giver of divine laws, an abstract concept that the Greeks placed over and above their many Gods.
Mythology aside, judges today are expected to hear only arguments that are legally translatable, not all facts can be taken into account, for that would turn the court into a jirga. The judicial technique is to pick out only those facts that are legally relevant, and so therefore the fact that one party is a drug addict would not affect whether a contract he entered into was valid, and therefore enforceable or not. In this way, judges to this day use the metaphorical sword personified by Themis. In the same way, the judges are subordinate to the constitution and the law and are required to dispense faithfulness to them, like Themis they are under the law they espouse or interpret themselves.
As a goddess, Themis is immortal in mythology. The security of tenures of worldly judges, though cautiously protected under constitutional democracies, nevertheless is not absolute. Most jurisdictions, including Pakistan constitutionally recognise the importance of judicial independence, and judges cannot be removed without special constitutional procedures. In the United States and the United Kingdom, judges can be removed through constitutional procedures vesting powers of impeachment and removal in the popularly represented legislatures. In Pakistan, however, both powers of appointment and removal have been entrenched in the judicial organ itself. In accordance with Article 209 of the constitution, the Supreme Court has framed its own procedures of inquiry, which favors secret trials.
When Shaukat Aziz Siddqui was recommended to be removed from his high office by the Supreme Judicial Council a couple of days ago, it was noted by the Supreme Judicial Council that nothing can be more damaging to the country’s judicial system than an allegation leveled by a high court judge that the superior courts were being controlled by outsiders. That strand of the reasoning is justified. The SJC explicitly noted that reckless and irresponsible conduct of Shaukat Aziz Siddiqui in making a speech at the Rawalpindi Bar was not countenanced by any standard of judicial propriety and the Code of Conduct in the country was no exception in that regard.
Nobody trained in the law can disagree with that notion, judges should not make public speeches, especially when it consists of political rhetoric. The bigger question however is whether this crime has been committed only by this one certain judge?
The FIA, the State Bank, the NAB, and even the office of the Prime Minister and Parliament have been ridiculed and censured, yet such a notice has not been issued to any other judge
The other notice against Siddiqui was in relation to the renovation of his house at the cost of public expenditure through abuse of power as a judge of the High Court. Yet, it seems through the reasoning of the SJC, that the offence of speaking against the ‘constitutional institution’ was the more heinous offence of the two. Criticism trumped corruption.
Surprisingly, the SJC also dismissed charges of misconduct against the Chief Justice of Islamabad High Court Justice Muhammad Anwar Khan Kasi. A couple of years ago, the Supreme Court had itself rendered a judgment declaring appointments made in the IHC illegal and therefore null and void. As a result Justice Iqbal Hameed-ur-Rehman had resigned as a judge of the Supreme Court. These same appointments were the subject matter of the reference before the SJC. In particular the Supreme Court had held that the Chief Justice had appointed his own brother as the additional registrar of the IHC deliberately ignoring and overlooking meritorious candidates.
It seems as if the SJC itself sat as an appellate tribunal on the verdict of the Supreme Court, for otherwise the reasoning would be fallacious. If the judgment of the Supreme Court was to be accorded primacy, which it should have under constitutional law principles, it is hard to fathom on how the SJC could absolve Justice Kasi of misconduct.
The egalitarianism of the SJC itself can be questioned, a district and session judge from Kohat, Ahmed Sultan Tareen, was transferred and suspended after he filed an application for a reference against Chief Justice of Pakistan Justice Saqib Nisar, who also serves as the head of the SJC itself. This is of course a severe affront to the due process of law, since when have we as a country decided to chasten people seeking constitutional remedies?
Siddiqui was a pathetic judge, nobody learned in the law could opine that he ever rendered a judgment on sound legal principles. Since his removal this can be said in the open without the fear of contempt proceedings being issued. Siddiqui sat on the bench as a violent judge roused by sectarian and denominational bigotry. He was a beloved of the religious fanatics and had caused severe onslaught on the dignity of the superior courts. This, however is not about the judge. It is about principles. The fact and value distinction needs to be maintained, no matter how incompetent a judge is, due process needs to be followed. Removing him on grounds of criticizing a state institution rather than corruption and judicial theatrics centering on bigotry will not benefit the country in the long run, because the values that judges need to follow would be set in favor of keeping quiet against state institutions, but continuing to push an agenda of hate through judicial processes and abuse of power. The ends cannot justify the means in this case.
Pakistan needs to avert rigid and exclusive self-regulation for judges. All organs of the state need to play a role in the processes of appointment and removal of judges, since their appointment carry security of tenures, which if left unchecked would ultimately result in tyranny. Shutting the judicial institution to external scrutiny is not the guarantee for judicial independence. In India, for instance, the removal of a judge is subject to parliamentary oversight, even if scant. This guarantees that the judicial organ does not breaches the boundaries set for it under the constitution and the law.
Pakistan needs to follow the lead.
The writer is a barrister, who has an interest in Pakistani current affairs, economy, constitutional developments, foreign policy and international law
Published in Daily Times, October 24th 2018.