Regrettably, there are no two opinions about the fact that we have become an extremely polarized society. It is a permeating reality in all spheres of national life. Thanks to the policies of self-aggrandizement pursued by our politicians. The intensity of the problem can be gauged from the fact that even the higher judiciary has become infested with the virus of polarization. There is a visible division between the judges who have shown their irresistible propensity to favour a certain political party by going beyond the rampart of the constitution and those who are striving to uphold the sanctity of the constitution in conformity with their oath. It is indeed a very alarming situation that could lead to a constitutional crisis in the country as well as the collapse of the whole edifice of the judicial system.
To judge the prevalent situation and the conduct of the judges, perhaps it would be pertinent to first look at the oath of office by the judges of the Supreme Court and High Courts. The text of the oath reads “I do solemnly swear that I will bear true faith and allegiance to Pakistan. That, as Chief Justice of Pakistan (or a Judge of the Supreme Court of Pakistan or Chief Justice or a Judge of the High Court for the Province or Provinces ) I will discharge my duties, and perform my functions, honestly to the best of my ability and faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law: That I will abide by the code of conduct issued by the Supreme Judicial Council: That I will not allow my personal interest to influence my official conduct or my official decisions: That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan: And that, in all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill-will. May Allah Almighty help and guide me (A’meen)”.
Disagreement with the opinion of any judge whether of equal or inferior status should invariably be expressed in terms of courtesy and restraint.
After taking the oath of office and becoming judges, they become under the purview of the code of conduct for judges issued by the Supreme Judicial Council. The code stipulates that in judicial work and in relation with other judges, a judge should act always for the maintenance of harmony within their own as well as among all courts and for the integrity of the institution of justice. Disagreement with the opinion of any judge whether of equal or inferior status should invariably be expressed in terms of courtesy and restraint. The code also asks judges not to get engaged in any public controversy, least on a political question, notwithstanding that it involves a question of law.
As is evident the judges pledge to dispense justice in conformity with the constitution and laws enacted by the parliament and also to protect the constitution. Another pledge made is to adhere to the code of conduct for judges issued by the Supreme Judicial Council. But regrettably, our judicial history remains unenviable due to bizarre and unconstitutional decisions given by the judges of the apex court which have had profound debilitating impacts on the socio-economic development of the country, democracy and a political culture based on sanity and tolerance.
No wonder then according to the World Justice Project (WJP) Rule of Law index for 2023 Pakistan ranked 130th across 142 countries. The WJP is an independent, multidisciplinary organization working to advance the rule of law worldwide. It is indeed a matter of shame and great embarrassment that the Islamic Republic of Pakistan which should ranked number one in the world on the rule of law index lies so low on the ladder.
The recent examples of verdicts given by pummeling the constitution are the opinion rendered on Article 63-A by the Bandial-led court which amounted to re-writing the constitution, a no-go area for the judiciary. The other decision is regarding the allocation of special seats to PTI with an 8-5 majority notwithstanding the fact that the party was not even a petitioner in the case. As also observed by the two dissenting judges and agreed by constitution experts the judgment violated a number of articles of the constitution.
The Bandial-led court without doubt had a partisan hue and gave the PTI undeserved relief. The verdicts clearly showed their leaning towards that party. The judgment on the allocation of special seats is also manifestly a political verdict that has precipitated an already existing political turmoil in the country and also made the dividing lines clear among the judges of the apex court.
The refusal of Justice Muneeb Akhtar to sit on the bench formed to hear the review petition on the verdict given on Article 63-A and expressing his dissent publicly as well as the refusal by Justice Mansoor Ali Shah to be part of the committee formed under the Supreme Court Practices and Procedure Act is not only a serious breach of their oaths of office but also the code on conduct of judges. The Chief Justice is the administrative head of the Supreme Court and their confrontation with him also warrants disciplinary action. This is indeed an unprecedented happening.
Under the circumstances, the CJ was left with no choice but to reconstitute the 5-member bench to commence hearing on the review petition filed by SCBA regarding Article 63 A. There is no doubt that the SC verdict on it was politically motivated and had no constitutional basis. The CJ during the hearing of the review petition was right on money to observe that it was rendered to thwart the no-confidence motion against the then Prime Minister. The verdict reflected badly on the conduct of the judges who tried to rewrite the Constitution.
The permeating situation does reinforce the argument for the establishment of a constitutional court as well as reforms in the judiciary. It is imperative to stop the judges in their tracks who through their unconstitutional indiscretions have and continue to harm the state interests.
The writer is a former diplomat and freelance columnist.