INSIGHT AND FORESIGHT

September 7, 2014

FACING A HYPER ACTIVE JUDICIARY. PART 1

Filed under: Uncategorized — sharafs @ 6:42 am

When the Supreme Court of Pakistan issued contempt to Imran Khan, he stood abandoned by his legal team that was either questionable or incompetent or submissive or docile. I wrote to the Chairman “Hire some top grade lawyers immediately. I fear the worst”. A year later, the same was repeated in a show cause on Justice (retired) Iftikhar Chaudary later revoked by Imran Khan.

The Contempt of Court Notice on 31 July 2013 was issued under Article 204 of the Constitution of Pakistan and section 3 of the Contempt of Court Ordinance, 2003. This Ordinance had lapsed over a decade ago. The illegal notice was served under a nonexistent law.

The Contempt of Court Act 2012 passed by the Parliament had been struck down by Supreme Court in August 2012. The Supreme Court had declared that, “COCA 2012 is contrary to Article 19 and is also discriminatory in its nature and violates Article 25 of the Constitution.” The Supreme Court set a principle in this judgment that freedom of speech is more important than a contempt law.  In another case, 16 Judges of the Supreme Court had suspended the sentence of a Police Officer who manhandled Chief Justice Iftikhar Muhammad Chaudhary. It needed 16 to revoke. The contempt notice to Imran Khan was downright void being in clear contravention of Articles 89, 270AA and 264 of the Constitution.

Rather than challenge the notice, lawyers led him into giving a clarification that was not needed. By law, he was justified in expressing his reservations. Had his lawyers been competent, they could have used this occasion to address many aberrations in the law created by judicial activism.

Contempt in contemporary law is seen as an exceptional rule and not something to bring government functionaries into awe and submission. According to international commission of jurists, 

“The best shield and armour of a Judge is his reputation of integrity, impartiality, and learning. An upright judge will hardly ever need to use the contempt power in his judicial career. It is only in a very rare and extreme case that this power will need to be exercised, and that, too only to enable the judge to function, not to maintain his dignity or majesty.” 

In 1968 Lord Denning of the British Courts from whom Pakistan inherits its laws said: 

“We (the judges) will never use this (contempt) jurisdiction as a mean to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. For there is something far more important at stake, it is no less than freedom of speech itself. It is the right of every man, in parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous.” 

Justice Iftikhar Chaudary’s activism in using this nonexistent law without exception means that serious issues of integrity and honesty existed. He subdued the PPP Government and its functionaries through a contempt trap tantamount to Judicial Harassment. He harassed officials facing hostility of PMLN government. Judicial bias was floating on the surface and acted like a bully. This bias is reflected beyond contempt to which, the legal fraternity has adopted a mysterious silence. Even when cases open, lawyers avoid the tenuous legal arguments thereby augmenting legal aberrations. Had Imran’s lawyers stood their ground with cogent arguments, the process of removing bias from courts could have begun. 

Irfan Qadir, the ex-Attorney General of Pakistan faced this activism of the Supreme Court more than anyone else. A certain media house also unnecessarily hyped the issue of appointment of judges. The smokescreen provided the cover for judicial activism never witnessed before. According to him: 

“On 31st of July, 2009, for the first time in our judicial history a few Judges removed a large number of their own brethren. In other words, 14 judges of the Superior Court sacked over 100 Judges without hearing them. Unfortunately, this led to a divide between the Bench and the Bar” 

Against common belief, Justice Iftikhar Chaudary was not restored but reappointed. He had to wait for Justice Dogar to retire. Going against his own judgment in Zafar Ali Shah Case in which he ruled that a judge who is not given a PCO oath ceases to be a judge, a minority of judges (themselves questionable), adjudged that any judge who had not taken oath under the PCO 2007 would remain a judge. This way he violated a previous law set by himself to be a winner of both. 

Zafar Ai Shah Case is still intact including the paragraphs that justify military interventions under necessity. In light of the precedence he set, he ceased to exist as a judge when he refused to take oath under the PCO 2007. It is only on 31 July 2009 that he reversed his judgment. If he had ceased to be a judge, how come he was reappointed as the Chief Justice of Pakistan on retirement of Justice Dogar is a question, the legal fraternity of Pakistan has to address? In focus will be the complete 14 member bench that had taken oath under the first PCO of General Musharraf. Though the Chaudary Courts maintain that Tikka Iqbal Khan Case was thrown out, the factual position is that Tikka Iqbal Khan Case is not set aside. It is a case of judicial activism against a judgment that judges once removed cease to be judges. 

According to the argument of Humayun Gauhar and to which Irfan Qadir agrees: 

“Non PCO judges were removed by PCO judge Iftikhar Chaudhry and his handpicked PCO judges of yesteryears without giving the ousted judges the opportunity of a hearing, thus making a mockery of due process. He even ignored the fact that he had been restored under a questionable Executive Order that was neither issued under any law nor the constitution, thus putting the legality and credibility of an already controversial Supreme Court and the entire judiciary into a tailspin”. 

It was General (Retired) Kayani’s phone call that resulted in reappointment of judges through an illegal procedure. The biggest beneficiary was PMLN.

Had Imran Khan’s lawyers been sincere, a first step towards removal of legal aberrations and restoration of Rule of Law could have begun. To be continued 

Brigadier (Retired) Samson Simon Sharaf is a political economist and a television anchorperson. Email and twitter: samson.sharaf@gmail.com

http://www.nation.com.pk/columns/06-Sep-2014/judicial-activism-i

 

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