It is said that judges speak through their decisions and while hearing cases they must refrain from making remarks that entail any expression of opinion because the interested parties can either exploit the judge or the situation. In the opinion of a retired judge of the apex court, the Judges are not supposed to cultivate biases and prejudices in the cases they hear. They are also not expected to speak unnecessarily in the court. It is not their bounden duty to make comments on every topic especially if alien to their comprehension.
The Supreme Judicial Council issued a code of conduct for the judges of the Supreme Court and High Courts on September 2, 2009. Article IV of the code stipulates, “To ensure that the justice is not only done but is seen to be done, a judge must avoid all possibility of his opinion or action in any case”. Article V says “Functioning as he does in full view of the public, the judge gets thereby all the publicity that is good for him. He should not seek more, in particular, he should not engage in any public controversy, least of all on a political question, notwithstanding that it involves a question of law”.
But contrary to the internationally recognised principles of jurisprudence and the Code of Conduct issued by the Supreme Judicial Council we are witnessing an impulsive streak on the part of the judges of the apex court hearing the Panama case to express their opinions with political connotations which provide the media as well as the parties to the case the opportunity to generate controversies on their opinions on daily basis. It seems that the judges relish the spectacle of hitting the headlines in the media.
The remarks of Justice Asif Saeed Khosa on article 62 and 63 of the constitution saying that if those were applied the entire parliament would have to go, were surely unwarranted. While the Honourable Judge later realised the error and withdrew the remarks, the damage was already been done. The media immediately latched onto it and exhaustively dissected it giving different interpretations to it. Even Imran Khan tried to extract political mileage out of it by saying that he did not care even if the entire parliament went, including himself, if justice was done. That surely is a political statement. He never meant it honestly. He has been calling the parliament a fake entity formed as a result of the rigged elections but the PTI members including Imran Khan continue to be part of it enjoying all the perks. If the elections were rigged and illegitimate then what was the justification for forming government in KPK? Actually he is not interested in across the board accountability. His only focus is on seeing the back of the Prime Minister and reaching the corridors of power by hook or crook. His entire politics has been focused on it and his stance on all the national issues has been hypocritical. Even his position on the panama leaks is akin to a witch-hunt as he is not vying for putting in place a system whereby across the board accountability of all the wrong doers and corrupt elements can be ensured.
Nevertheless since article 62 and 63 are part of the Constitution, the argument to apply it seems quite fair on the face of it. But practically it is not enforceable. This aberration in the constitution and other legislative measures like the Hadood Ordinance were introduced by a military dictator to win the support of the clergy and not to actually Islamise the society. The insertion of these articles in the constitution was also meant to make politicians fall in line. The criteria for eligibility to contest elections for the parliament as prescribed in article 62 (d,e,f) is such that even the members of the clergy and the custodians of our national morality and religiosity would not qualify to be the members of the parliament. The other very pertinent question is that in a society bereft of morality and steeped into the quick-sand of corruption, who would determine whether a person is ameen and sadiq and a practicing Muslim or not? The fact is that the man who introduced this clause in the constitution was a hypocrite of the first order and all his actions reflected societal hypocrisy.
Whether one likes it or not the fact is that the general elections of 2013 which brought about the current parliament were held according to the existing law and the constitutional provisions and their legitimacy has been corroborated by the Judicial Commission that was formed to probe the allegations of rigging by Imran Khan. All the disputes and election petitions have been handled according to the law by the election tribunals. It must not be forgotten that before the elections the candidates were duly interviewed by the returning officers, who were mostly judges, to check their eligibility according to article 62 and 63. So the current parliament and the PML-N are beyond any reproach both legally and constitutionally.
It is really amazing that the political parties who joined hands to bring about the Eighteenth Amendment, did not bother to remove this sword of Damocles from their heads, which can be exploited to victimise some individuals and even destabilise the system.
All the political forces need to shun politics of self-aggrandisement and cooperate with the government in bringing about necessary reforms in the system of governance as well as the constitutional amendments that could facilitate that process. The government of PML-N seems quite open to accommodating the views of the opposition in regard to improving the system of governance. That needs to be done in the national interest, and to realise the dream of the architect of Pakistan. It was the right time to rectify the social and political fault lines. It requires all the political parties to rise above their narrow political ends. The challenges confronting the country at the moment also dictate the same approach by all the political entities. They need to be part of the system to be able to reform it. So instead of trying to remove the elected regime before its mandated time the opposition parties must focus on presenting the best alternatives if they thought that the incumbent government was not working in the best national interest, and then leave it to the people to make the final decision in the coming elections because they are the final arbiters.
The candidates were duly interviewed by the returning officers, who were mostly judges, to check their eligibility according to article 62 and 63. So the current parliament and the PML-N are beyond any reproach both legally and constitutionally.