In the developed world including USA, UK and the Commonwealth, honourable judges are neither seen nor heard. They speak through their judgments and are seen or assessed through their intellect, legal acumen or capacity to do complete justice. Pakistani courts inherited a similar system.
Honourable judges like Justice Sir Abdur Rashid, Kaikaus, Kayani, Cornelius, SA Rehman and Hamood ur Rehman seldom talked or were seen and yet held in very high esteem by their countrymen. However, of recent, more than often, judges are heard in courtroom making endless remarks. All this is seen by public in the tickers on print or electronic media. Ever since Justice Iftikhar Chaudary became the Chief Justice of Pakistan, this practice or behaviour has become a norm with many judges. Much that these judges said was irrelevant to the merits of the cases and many of their own impromptu remarks were contradicted in their judgements.
The judicial crisis of 2007-2008 gave cause to these judges to take their case to the streets. Lawyer’s Movement followed by massive rallies infused a popular factor that made some of the judges louder inside the court rooms. The problem is that on many occasions’ lawyers, their clients and witnesses are held in shock by such vociferous interruptions of the judges which ultimately affect fair play and even handed Justice. By invoking Suo Moto and Contempt Jurisdiction as a matter of routine, judges in fact impinge upon the executive functions to be performed by the constitutional functionaries.
A hyperactive higher judiciary has had its domino effects. There are also visible cracks between the Bar and the Bench as regards an effective system of administration of justice in the country. In other words, the Bars are a check on judges and the judiciary provides a check on lawyers. Unfortunately we neither have an impartial judiciary nor an independent bar. A few independent lawyers, like Irfan Qadir (ex-Attorney General for Pakistan), had to face adverse consequences through suspension of their licenses. Ali Zafar is another example whose license has been suspended because he belongs to the anti-Hamid Khan Group. Hamid Khan has always supported Chaudhry Court PCO Judges whereas Ali Zafar has his loyalties with Asma Jahangir’s group of judges. As such Bars and lawyers are a house divided. Many senior lawyers have more interest in not irking the judges who have been their partners in Chambers and who hope to get early hearing and disposal of their cases. Consequently many such lawyers have also become very aggressive and take to streets at the slightest pretext forcing courts to shut down. In a nutshell such aggressive behaviour on the part of lawyers or judges obstructs justice and fair play. Ones who suffer are the clients who pay the fees to lawyers and the court (i.e. The Court fee). Though practice of law has an elaborate code of ethical conduct, hyperactivity and self-interests have become an impediment. In such dynamics the eye of the media galore has become a constant.
World over, attorneys tend to disagree with judicial comments concerning the merits of pending cases-in the form of opinions, orders, or bench rulings. Lawyers feel that genuine disagreements lead to fairness and therefore they have a strong cause to disagree. This argument is not without merit and rules pertaining to the lawyers conduct should be rendered flexible for the sake of fairness and freedom of expression.
The major issue is that by commenting on the merits of pending cases a judge unconsciously or consciously acts in a manner which is prejudicial to the interests of the parties. Such comments are highlighted in the media creating undue influence. Unfortunately, no judge in Pakistan fears the likelihood of disqualification over extra-judicial remarks.
There are many instances in the Supreme Court where the honourable judges have insulted and rebuked lawyers and witnesses contrary to the spirit of fairness. In a recent letter to President of Pakistan Mr. Irfan Qadir has raised issues concerning Justice Jawad Khawaja on this Code of Conduct. He has maintained that “the honourable judge ran the courtroom as if it was his personal fiefdom and often treated lawyers and litigants with condescension as if he looked down upon them from some majestic and elevated position.” He goes on to write that “the judge had the habit of sermonising, haranguing and ridiculing the institutions of the State, its officers and the litigant public. He misused the contempt power of the apex court to pressurise the top offices of the country and repeatedly impinged upon the investigative function of the executive authority of the Federation and the Provinces.” To support his allegations, Irfan Qadir has referred to Arsalan Iftikhar case in which both Justices Iftikhar Chaudary and Jawad Khawaja sat on the bench despite an obvious bias, a Lahore High Court Bar resolution against him, and sitting in the bench in case of his own relative. Indeed Justice Jawad along with Justice Iftikhar Chaudary and Justice Ramday were amongst the most aggressive and abrasive judges who during their tenures remained in media highlights.
But this practice of judicial high handedness did not begin here. There are issues that will keep raising heads over a period of time.
First, some members of the Bar still maintain that the appointment of Justice Iftikhar Chaudary as the Chief Justice of Pakistan for the third time was not legal. Following Justice Dogar’s legal retirement, all constitutional procedures were violated for his new appointment.
Secondly, on 31st of July, 2009, for the first time in 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. As per one allegation, at that time Justice Jawad Khawaja was not a practicing lawyer and his selection was illegal.
Thirdly, Justice Iftikhar, 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. Thus, he violated a previous law set by himself to be a winner of both.
Fourthly, the findings regarding Law of Expediency in Zafar Ali Shah Case were never expunged or reviewed thereby making our jurisprudence self-contradictory and conflicting.
Justice Jawad Khawaja’s parting kiss, “A case in courts takes 25 years”. What did Justice Jawad and his mentors do in the past ten years to bring such judicial lethargy to an end?