Daily Times

The government intends to file a reference against Justice Waqar Ahmad Seth to the Supreme Judicial Council, for being ‘mentally unfit and incompetent’, said Federal Law Minister Farogh Naseem. Justice Seth who is author of the judgment of the Special Court’s decision convicting former military ruler of Pakistan, General Retired Pervez Musharraf guilty of High Treason and sentenced him to death under Article 6 of the constitution. The ruling had a hot and cold reaction from the masses, However, Paragraph 66 created dismay amongst the high ranks of government and made subject to unrelenting criticism.

Paragraph 66 of the verdict says: “we direct the Law Enforcement Agencies to strive their best to apprehend the fugitive/convict and to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to the D-Chowk, Islamabad, Pakistan and be hanged for 03 days.”

The said judgment authored by Justice Seth gives the impression of being influenced by post-humous executions of Oliver Cromwell by supporters of King Charles II in 1658 and Grigori Rasputin by the Russian Revolutionaries in 1917. Both performed to show that even in death, one cannot escape justice.

Paragraph 66 unequivocally is against the dignity of man and self-respect which is an inherent human right and is inviolable. It is unIslamic, ultra vires of the constitution, and illegal from four corners of every book of local-international law and religion.

In contrast to the above, Lahore High Court in Muhammad Ameen v. Government of Punjab, PLD 2019 Lahore 330 while dealing with a Rape and murder of a child held: “Barbaric crime did not have to be visited with a barbaric penalty” The same point was decided in Muhammad Aslam Khaki v. The State, wherein public hangings and torture were declared to be violative of the inviolable dignity of man. The Universal Declaration of Human Rights also says Article 5: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Lord Denning said: “Justice has no place in darkness and secrecy. When the judge sits on a case, he himself is on trial if there is any misconduct on his part, any bias or prejudice there is a reporter to keep an eye on him”
However, in light of the aforementioned quote, the question arises whether a judge should be held accountable for passing a judgment that is against religion, law, and precedents of superior courts?

The answer is Negative, in consideration of the Judicial Officers Protection Act, 1850 which provides Judicial immunity by barring civil claims and charges of criminal nature against Judges committed while discharging duties. Taking in account the prerogative of protection, the Supreme Judicial Council in Presidential reference against Justice Mazahir Ali Naqvi of Lahore High Court, held that No reference can be filed against a Judge on account of his judicial orders.

The Supreme Judicial Council established under Article 209 of the constitution, is to regulate and discipline the judges of the superior courts by the judiciary itself. A reference can be filed by any person, to the President of Pakistan or to the Council directly. The Council will inquire into the matter on its own motion or by a direction from the President. Judges are removed by the President on the advice of the council if it finds him guilty of misconduct or incapable of performing duties of the office by reason of physical or mental incapacity.

“Misconduct” and “Incapacity” are defined by The Supreme Judicial Council Procedure of Inquiry of 2005 as:
Misconduct: “Conduct unbecoming of a judge, disregarding the code of conduct under Article 209 and someone who is found to be inefficient.”
Incapacity: “all forms of physical or mental incapacity which will render the judge incapable of performing his duties in the office.”

Judges can also be convicted of offences in the discharge of his duty as a judge for his conduct on the bench under section 197 of the Criminal Procedure Code (CrPC):

197: Prosecution of Judges and public servants

(1) When any person who is a Judge within the meaning of section 19 of the Pakistan Penal Code or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of the Central Government or a Provincial Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction:
(a) in the case of a person employed in connection with the affairs of the Centre, of the President; and
(b) in the case of a person employed in connection with the affairs of a Province, of Governor of that Province.
(2) Power of President or Governor as to prosecution. The President or Governor, as the case may be, may determine the person by whom, the manner in which, the offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.

History is full of notable and notorious judgments found not only unjust but illegal and effected only to fulfill personal/ political vendettas and nefarious designs. Many Prophets of God, renowned Leaders and military personals have been made subject to this on one pretext or another. Having said this, it should not be forgotten that judges are men and are prone to bias and mistakes. A.K Brohi said: “Even honest judges are only honest men of flesh and blood, men who are heir to all the ills that men suffer from, ills to which the whole of the mankind is a prey.”

The solution, nonetheless, is not to file a reference against judges who commit mistakes or go beyond the purview of the authority bestowed in them by the relevant laws. The key is to opt for a constitution antidote that is provided for, therein, in shape of Appeal to the Supreme Court.

Appellate powers to ascertain whether judgments are reasonable and sustainable are given to Supreme Court under Article 185 of Constitution of 1973 and 12 (3) of Special Courts Act, 1976. Appeals can be filed by parties aggrieved from final decisions of the aforementioned courts within thirty days.

The fact which thunder-strikes is that all the judges removed by the Supreme Judicial Council, to date, with one exception, have been done under military rule when judges either didn’t bow down to the dictators or dared to stand tall against their might. Those arbitrarily removed includes Chief Justice of Pakistan Justice Yaqoob Ali Khan, who was shown the door by General Zia ul Haq followed by three other removals from the bench of Supreme Court of Pakistan and a dozen of judges from High courts of Pakistan including Chief Justice of Baluchistan High Court, under Provisional Constitution Order (PCO) 1981.

Exception to the above removals is the recent removal of Justice Shaukat Aziz Siddique; A Judge of Islamabad High Court removed under article 209(6) by the President after recommendation of the Supreme Judicial Council for delivering a controversial speech to District Bar Associations Rawalpindi against state institutions like the premium Intelligence agency ISI, for manipulating judicial decisions. The removal, however, remains controversial and the done away with Judge has filed a petition against it, labeling the proceedings ‘Biased and unlawful”. The proceedings remain pending adjudication in the Supreme Court of Pakistan, adjourned to be heard in March 2020.

After the Bar pressurized the Supreme Judicial Council on not deciding references filed against other Superior Courts Judges, except for those who go against the rulers. The council revealed in June 2019 that the number of complaints filed against judges had been 426 out of which 398 have proceeded with the due process prescribed and only 28 cases were remaining. It is unnerving that out of hundreds of references filed against judges only those are removed who dare speak in favor of their independence which is provided for and protected by the constitution.

The rationale behind the creation of the Supreme Judicial Council is to strengthen the judiciary, but the Supreme Judicial Council, somehow, stifles the independence of the judiciary. It has become a vehicle in the hands of the Executive against an independent judge whom it can undermine by threatening that his case would be sent to the council if he does not kneel before those in power. It seems that it is a favorite verdict of the rulers to exterminate those Judges who check and control, their fettering abuse of power by adopting unfair yet seemingly constitutional methods of assassination. It is evidently always subjectively and selectively applied by those in power, who manage to successfully suppress the truth and shield the evil.

All things considered, Case of Waqar Ahmad Seth neither attracts misconduct nor incapacity. His Judicial and public record speaks volumes of his prowess and potential. One of his bold judgments acquitting 74 Military Court convicts on the basis of unfair trials and lack of substantial evidence gained international importance. The aforesaid decision was cited by the Government of Pakistan as their defense to an application filed by the Indian Government in case of Indian spy Kulbhushan Sudhir Jadhav in the International Court of Justice.

Para 142 of the judgment of ICJ states: “The Court takes note of the decision of the Peshawar High Court in 2018. The High Court held that it had the legal mandate positively to interfere with decisions of military courts if the case of the prosecution was based, firstly, on no evidence, secondly, insufficient evidence, thirdly, absence of jurisdiction, and finally malice of facts and law.”

Knowing the possible fate of a reference against Justice Seth the government keeps chanting tantras for face-saving. Law Minister Farogh Naseem in a recent talk show with Shahzeb Khanzada once again said the ordain by the Premium Imran Khan is to file a reference against Justice Seth but didn’t say much about it as to when and how.

In routine, the Supreme Court of Pakistan and other Appellate Courts find judicial decisions of subordinate courts unreasonable or unlawful. They are set-aside, modified and remanded back to the same court or decided in a completely opposite way e.g. the conversion of death sentence to acquittal or vice versa. However, Government officials labeling judges as ‘mentally unfit” to preserve their own credibility instead of settling on a judicial measure to correct something uncalled for will leave a bad precedent for the eminence of the judiciary and cost the people their last and the only resort of relief in desperate times.

If we keep doing away with judges who commit mistakes, we will be left with nothing but an empty bench and our echoing voice in a court of law.

The writer is a Human Rights Activist and A Lawyer based in Peshawar & Islamabad. He works as a Partner in Kakakhel Law Associates, has studied Public Policy from the University of Massachusetts and Corporate Law from Harvard University. He tweets as @kakakheln.