In a democratic country, as part of the separation of powers, the Judiciary’s functioning is kept independent of the Legislature and the Executive’s ambit in order to avoid any undue influence of the ruling dispensation in the quest for justice. Essentially, if the judiciary is subverted, the ethos of democracy is in peril. In the Indian Subcontinent, if there is one country that has repeatedly witnessed the undermining of its judiciary, it’s none other than Pakistan. Let’s examine this in detail.
The Pakistani Army has always desired that the judiciary toe its line. Though some conservative judges prefer restraint and don’t look for a clash with the army, Pakistan has a fair share of activist judges who are critical of the Army’s pervasive role in political affairs. The judges who conform to the Army’s thought process keep politicians on a tight leash through their judgements with scathing remarks on the Government’s performance thus indirectly enabling the Army to have a stronghold over the political affairs of the country.
In order to dilute the chastity of the judiciary, the Pakistan Army is known to position its ‘own men’ by influencing the appointment of judges to various higher courts. Ijaz Ahmad Chaudhry, a former Chief Justice of Lahore High Court once stated in an interview that he was approached by a serving general from the Inter-Services Intelligence (ISI) regarding the appointment of judges. In fact, appointment of several judges to the Lahore High Court and even the highest Court of the land, the Supreme Court has been pending for a while due to a brewing conflict between the Bar council and the Army as each party is trying hard to install judges considered favourable to their point of view.
With an intention to manipulate judgements in its favour, the Army as part of its modus operandi apparently coerces the senior most judge of the Court to exclude ‘troublesome’ judges from benches that hear cases related to its functioning. To this extent, the vulnerabilities of judges based on financial or moral wrongdoings are often exploited in the pursuit of achieving favourable decisions. Conversely, judges are also allegedly called out, sidelined and even subtly harassed for taking a stand against the Army or in favour of individuals/organisations that don’t suit its interests. The most prominent such case is that of Justice Shaukat Siddiqi of the Islamabad High Court. Being the senior most judge, Siddiqi was to become the Chief Justice of the Islamabad High Court; however the incumbent Chief Justice Muhammad Anwar Khan, on the advice of the Army, kept him out of all benches constituted to hear petitions of opposition politicians because of a perception of him being sympathetic to Nawaz Sharif. In 2018, Justice Shaukat Siddiqi was even removed for his remarks about the alleged interference of the ISI in judicial processes during a public address to the Bar association. His petition against his dismissal was deliberately not taken up by the Supreme Court for over two years until June 2021 when it was put up for hearing just barely three weeks before his scheduled retirement.
Despite all these manipulations, if at all a decision is taken against the Army, the institution pushes the government to send appeals to sympathetic judges for review of the same. For instance in December 2019, when the Peshawar High Court Chief Justice Seth Waqar Ahmad convicted former Chief of Army Staff ( COAS) General Pervez Musharraf for high treason and sentenced him to death, the government swiftly approached the Lahore High Court and got the verdict revoked on technical grounds. In another case in December 2020, when a five member bench of the Balochistan High Court unanimously declared the Army run Defence Housing Authority’s (DHA) Quetta acquisition of land illegal and unconstitutional, an order was issued by a three member Supreme Court bench in March 2021 suspending the earlier judgement of the five member bench of the Balochistan High Court. The constitution of the Bench also clearly demonstrated that Chief Justice Gulzar Ahmad included only those judges who didn’t wish any conflict with the Army. Much in the news, another judge to face the ire of the Pakistani Army for his outspoken attitude is Justice Qazi Faiz Isa.
Justice Isa is known for giving a strong rebuke to the military establishment in his judgements. Fearing that he may set a trend of such rebuttals, his ouster has become a top priority for the Army; more so since he is in line to become the Chief Justice in 2023. Not giving up, the Pakistan Army has roped in Barrister Farogh Nasim as the Law Minister in Imran Khan’s Government to cover the legal front, particularly in Justice Isa’s case. Nasim, a prominent lawyer has earlier fought in Court successfully for former President and Chief of Army Staff (COAS) General Pervez Musharraf. In this instance, in May 2019, the President of Pakistan Arif Alvi sent a reference against Justice Isa to the Supreme Judicial Council (SJC) accusing Isa of not declaring the property owned by his wife and children in London. Nasim allegedly prepared the reference note against Justice Isa putting the current government on a direct collision course with a segment of the judiciary and a large section of the legal fraternity. In fury, the Additional Attorney General(AAG) Zahid Ebrahim resigned when the reference was filed against Justice Isa stating that it was a ‘reckless attempt to tar the reputation of independent individuals and browbeat the judiciary of Pakistan’. Not just the AAG but all bar associations publicly supported Justice Isa.
Subsequently, in June 2020, a ten member Supreme Court bench issued an interesting judgment. It not only set aside the Presidential reference declaring it invalid but also instructed the Federal Board of Revenue (FBR) to investigate the matter of properties and send a report to the Supreme Court without much delay. Later in April 2021, the bench set aside the earlier decision by a majority of 6-4 declaring all investigations and proceedings against Justice Isa illegal. Irrespective of this judgement from the Bench, the law minister Farogh Nasim, fearing for his own head, convinced the Prime Minister to re-argue the issue and possibly introduce another reference against Justice Isa. However the Government’s application for review was returned by the Registrar of the Supreme Court with the remarks that the President, the Prime Minister and the Law Minister of the country have used derogatory language while addressing the Court and its officials. Things have come to a point wherein the legal community believes that the Law Minister is representing the case not for the Government but seems for the Army .
Journalists, Human Rights defenders and civil society activists in Pakistan also believe that the Army keep pushing the government to proceed against Justice Isa in an attempt to send out a message to all dissenting judicial officials and judiciary.
Nevertheless, increasingly, a large section of the legal fraternity is growing averse to the all permeating role of the Army. If the current conflict continues between the masters and a significant segment of the higher judiciary, the likelihood of an impending constitutional crisis cannot be ruled out. For Pakistan, this would be a self inflicted predicament, an emerging property of a ‘Deep State’ that governs every aspect of Pakistani life, as the problem is not likely to go away with Justice Isa alone. The judges who follow him in the line of succession are again publicly known for disapproving the expanding role of the Army which having grown into a Frankenstein monster is deterring the functioning of the country as a truly democratic entity. The Lordships seem to have taken note. May be its time the citizens of Pakistan do too.
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