On April 10, 2023, the current depleted parliament decided to celebrate the golden jubilee of the 1973 constitution of the Islamic Republic of Pakistan. There was a cross-section of guests. The entire bench of the Supreme Court of Pakistan (SCP) was invited to grace the ceremony. Only one sitting judge ventured to attend. He patiently listened to the speeches of Asif Ali Zardari sitting on his right and Shahbaz Sharif sitting to his left. In utter embarrassment the very next day Justice Faiz Qazi Isa had to issue a statement that he had no idea that political speeches were planned for the session.
As student leaders, we walked out to stop exploitation/misuse due to our presence and participation. One must have the courage to dissent when trapped by the unscrupulous. Amongst the do’s and don’ts of my late father Nazir Ahmed Malik, a worker of the Pakistan Movement item number 1 says; “No compromises: do not fear confrontation.” His leader Muhammad Ali Jinnah was known for his dissent both inside and outside the courtroom.
Historically speaking Muhammad Ali Jinnah took the oath of office as the first Governor General of Pakistan on August 15, 1947, at Karachi. The oath was administered by Sir Abdul Rashid, Chief Justice of Lahore High Court (LHC). Jinnah then went to the Constituent Assembly and administered oath to the first Prime Minister (PM) and his six-member cabinets. The journey of Pakistan started on sound footing under the leadership of the Quaid. After the death of Jinnah, Khawaja Nazimuddin, a stalwart of the independence movement was sworn in as the second governor general. Trouble started with the assassination of Liaquat Ali Khan in 1951. Ghulam Muhammad managed to capture the coveted position, pushing Khawaja Sb down as PM. This crossing of constitutional laid boundaries has been devastating for the republic ever since. Recovery from this encroachment has been difficult despite tremendous efforts and the enactment of 1973 unanimously agreed constitutional framework.
The President, when invited, sits with the Speaker as a guest before his address to the elected representatives of the people. Moreover, under government rules of business, the permission of the head of the institution is required for any outside formal participation by any member. The SJC is the sole legitimate body for accountability of the higher judiciary which should be allowed to function as per law. Although very few judges have been removed by SJC, several have chosen to resign/retire instead. The entire Lawyer’s Movement could have been averted if the case against Chief Justice Iftikhar Chaudhry had been forwarded to the Council to be dealt with under the law. Forcing him to resign without due process was a poor decision. Charges against the CJP were of serious nature which should have been pursued. His restoration proved deadly for the nation and the rule of law. Then there was a campaign to extend his tenure for the period of his suspension. The idea was so disturbing that civil society was forced to serve the threat of street protests in case of any extension. There was a sigh of relief when the senior judge and scholar Justice Tassaduq Hussain Jillani took charge of the SC (Supreme Court) thus ending the most deadly term of Justice Chaudhry. However, the poor decisions of the outgoing chief continue to haunt the people today.
Justice Isa is next in line to take over as CJP in September on the retirement of Justice Umar Atta Bandial. Credibility and neutrality are essential traits of a judge which cannot be compromised under any circumstances. It reminds me of a story of two judges, father and son who both rose to be judges of the superior judiciary. Justice Malik Muhammad Akram before accepting the position sought a firm commitment from his family not to approach him for any favours. His son Justice Malik Qayyum, a great legal mind had to resign after his telephone conversations influencing under-trial cases were made public.