Fundamental human rights defend every person in a cause affecting them to be heard by an independent, neutral and unbiased judge. The International Covenant on Civil and Political Rights codified this right under international law. The constitutions of the numerous countries, including the Constitution of the Islamic Republic of Pakistan guarantee the right to an impartial judge. It is a right so entrenched in jurisprudence that all nations, even those with unwritten constitutions, recognise it as a constitutional right. Former British Chief Justice Lord Hewart famously said, “Justice should not only be done but should also see to be done,” in enunciating the principle that the mere appearance of bias is sufficient to overturn a judicial decision. The UK is advancing towards a constitutional crisis ever since Boris Johnson decided to prorogue the British parliament to stop them from outvoting a no-deal Brexit. The separation of powers is a principle so central to the British constitution that it is seldom breached, unlike in Pakistan. Judicial independence is an integral part of the separation of powers.
What happened a couple of days ago with a special judge for the narcotics court recusing himself to hear a bail application when it was being argued on the pretext that he had received a WhatsApp message to the effect destroys all confidence in judicial independence. It has made our judicial system look like a joke in the entire world. Judges for Special Courts for Control of Narcotics Substances are appointed under section 46 of the Act. The provision elucidates it clearly that special judges are appointed only after consultation with the Chief Justice of the High Court in which the special court is situated. Consultation has been interpreted by our Supreme Court to mean binding advice and therefore in line with the role of the High Court to superintend all subordinate courts in the province under the Constitution. The practice and precedent of such appointments favour three-year tenures, which was also the case with the respective judge who was appointed on February 11, 2019, and was to keep his office until February 10, 2020. Therefore, his arbitrary transfer without being assigned reasons and out of the blue is as baffling as it is deplorable.
If a judge lacks integrity, he does so for all cases
This is the government’s second strike in a row blatantly attacking the scheme of the Constitution after unilaterally appointing members of the ECP.
There have been accusations of Rana Sanaullah being victimised for political reasons. Rana Sanaullah is facing charges under Section 9 (C) of Control of Narcotic Substances Act 1997, which carries the death penalty or life imprisonment or a jail-term that may extend to 14 years along with a fine up to Rs 1 million. This is a serious offence. He has also been accused of attacking ANF officials and therefore he has been booked under a case with dire consequences. A judge being changed while hearing his bail application mid-trial raises more suspicions on whether Sanaullah’s trial is genuine. It has been alleged that he has been repatriated back to the Lahore High Court because of questions over his integrity, if so is the case why are such facts not being openly disclosed before the public, and why has he been only repatriated without lodging a formal complaint, as was done by the federal government against Justice Faiz Esa and Justice KK Agha?
If a judge lacks integrity, he does so for all cases, not only Sanaullah’s. If, however, there was no impropriety with the conduct of the judge then why did he need to be transferred in the middle of not only his tenure but also a courtroom hearing. Two other judges were also repatriated to the Lahore High Court and all those judges were connected with proceedings against leaders of N League. This is a development of grave concern. It creates a public perception of selective justice and an attack on judicial independence. The appointment, transfer and removal of judges is the easiest way that the executive can influence the judiciary and it is for this reason that these powers are vested within the High Court for the subordinate judiciary and in the Judicial Commission of Pakistan and Supreme Judicial Council both led by senior judges in the cases of superior court judges.
It is a troubling time for the country and its institutions, the constitution and its entire scheme are being violated by those in power and it seems that the British public must be crazy protesting against proroguing Parliament, compared to the sad state of affairs in Pakistan.
The writer is a barrister, who has an interest in Pakistani current affairs, economy, constitutional developments, foreign policy and international law