When the sun finally set, last December, on the agonizing years of Iftikhar Chaudhary, as Chief Justice of Pakistan, many in this country had breathed a sigh of relief that the era of partisan jurisprudence was finally over. We had imagined that finally Lady Justice would stop peeping from behind her blindfolds. That Arslan Iftikhar and Allah Ditta would once again be equal citizens of this country. That the apex court will no longer be the fiefdom of a select few. That justice, in this land, will once again reclaim its spirit of being equal for all. That the threat of contempt shall no longer be used to silence dissenters. That age old principles, such as “no man shall be a judge of his own cause”, will once again be hailed as the foundations on which our entire judicial edifice has been constructed.

On Thursday, however, as a distasteful hangover of yesteryears, the bench of Justice Jawad S. Khawaja, while listening to the GeoTV Petition, reminded us that the legacy of Iftikhar Chaudhary is alive and kicking.

As it transpired, Constitutional Petition No. 48/2014, which, inter alia, prays for the unbanning of GeoTV, was fixed before the three-member bench headed by Justice Khawaja, on 22.05.2014. The night before, in his belligerent television program, Khara Sach, Mubashir Luqman, along with his guest Aqeel Karim Dhaidi, revealed that Justice Khawaja was related to Mir Shakeel ur Rehman, and thus the honorable judge could not adjudicate the GeoTV case. In his characteristic style, Mubashir Luqman reiterated that the ongoing proceedings of the said case were thus a mockery of the justice system, at the hands of those (Justice Khawaja) who had taken a PCO oath in the past. In light of this television program, on the following morning, one Mr. Sabir Shakir, bureau-chief of ARY Islamabad, appeared before Justice Khawaja’s bench, and on behalf of Mubashir Luqman, raised an objection to Justice Khawaja’s presence on the said bench, being in violation of the judicial Code of Conduct prescribed by the Supreme Judicial Council. Justice Khawaja proceeded to play several clips from the Khara Sach show, chastising PEMRA officials for allowing such contemptuous comments to air, and threatening that contempt proceedings may “proceed separately” against the said individuals.

Most surprisingly, Justice Khawaja therafter dictated an order which candidly concedes that “Mir Shakeel ur Rehman happens to be the brother of the wife of my brother”, and in the same breath concludes that, since Justice Khawaja has not met Mr. Rehman in some years, “I have no basis for regarding or treating Shakeel ur Rehman as a near relative”.

To support this startling conclusion, Justice Khawaja places reliance on a self-serving interpretation of Article 4 of the judicial Code of Conduct, which requires that “a judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friends”. In a carefully drafted judgment, the honorable judge, conveniently forgets to quote the part of this Article which reads “must decline resolutely”, and in a move that cannot be explained without being contemptuous, replaces this phrase with the word “should”. The honorable judge also conveniently skips any mention of the second half of Article 4 of the Code of Conduct, which mandates that “a judge must refuse to deal with any case in which he has a connection with one party or its lawyer…”. As a result, supplemented by the judicial oath to do justice “without fear or favor, affection or ill-will”, Justice Khawaja unequivocally concludes that the “conscience of the judge himself” alone decides which cases he recuses himself from. And thus, in the present case, Justice Khawaja, whose moral fiber is stronger than mere mortals, feels confident that he can do justice between the litigating parties, in a manner that it will manifestly be seen to be done.

It is hard to fathom that Justice Khawaja does not appreciate the mandate and spirit of the judicial Code of Conduct. He is far too qualified and experienced to be unaware of the fact that allowing each member of the bench to subjectively determine, on an individual basis, which relationships can be deemed as “near relatives”, would destroy the entire ethos of justice being ‘manifestly seen to be done’. He is acutely sensitive to all perceptions of bias. It is he, in fact, who once reprimanded Mr. Irfan Qadir, the then Attorney General, for being associated with a case of a party that Mr. Qadir had earlier represented in his private capacity. He is certainly aware of the fact that an even higher standard of transparency and independence is required of the members of the apex Court. He is fully cognizant of the overpowering reach and necessity of ensuring that ‘no man is a judge of his own cause’.

What then can explain Justice Khawaja’s refusal to recuse himself from GeoTV case?

The answer, though speculative, seems terrifyingly simple: Justice Khawaja, perhaps the last of the remnants of Iftikhar Chaudhary’s brand of justice, must believe that his individual moral fiber, his personal oath and integrity, is strong enough to transcend the menial rules of justice, written for other (lesser) men. He must genuinely believe, as Iftikhar Chaudhary did, while listening to Arslan Iftikhar’s case, that he is molded in the shadow of the examples of Khulfa-e-Rashideen. And this honestly held belief, which effectively is an oath of conscience between an individual and his God, cannot be restricted within the contours of man-made law. In fidelity to this belief, Justice Khawaja reportedly remarked in open court that the bench will dispassionately judge the case “according to its conscience”.

There can be no denial of the fact that Justice Khawaja’s presence on the bench, hearing the GeoTV case, is casting doubts on the project of justice. In fact, it is manifesting itself in absolutely unforgivable ways, including flyers against Justice Khawaja, all across Islamabad (for which strict and immediate action must be taken). But such abominable acts, by those bent upon maliciously undermining the constitutional dispensation, as reprehensible as they are, must not cloud the issue at hand.

The moral arc of justice, as strong as it is in character, is brittle in its temperament. For justice to command the respect of people – and more importantly, the respect of history – it must be unblemished and irreproachable. It must be humble and humane. It must be manifest and incontestable. It must be determined and dispassionate.

And in this spirit, might we, those who still need to abide by maxims of man-made law to find some semblance of justice, request Justice Khawaja to reconsider his approach in the instant case, in order to ensure that a dangerous precedent, for generations to follow, is not set, in this land.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard  Law School.


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