Fruits of independent judiciary

Daily: The Statesman
Date: 11.06.10

How many times has it happened in the history of Pakistan that an additional session judge
is suspended by the Supreme Court for granting illegal bail before arrest to a provincial
minister allegedly involved in the kidnapping of a girl with the help of the officials of his
subordinate ministry?

The kidnapping took place in Kohat, the minister was the Provincial Minister for Prisons,
Mian Nisar Gul, and the judge faced suspension was Asghar Ali Shah. Subsequently, the
minister also tendered his resignation.  

Before the Supreme Court, Asghar Ali Shah, the judge, confessed that he was under
pressure to grant bail owing to the ‘political nature’ of the case. That is, a judge of the
stature of a session judge was subjected to pressure to commit an illicit act to favour those
having political clout – but after overlooking the rights of the deprived. The judge could
have withstood the pressure, as Justice Khalil ur Rehman Ramdey pointed out during the
court proceedings, but the penchant of the politicians for infusing their awe in the heart of
the public by violating the law is also a living day reality. There are politicians who never
miss availing themselves of any such opportunity. That is how the gulf between the ruler
and the ruled widens; that is how respect of law is mandated for only the weak sections of
society; and that is how the underprivileged get fed up of the state. Suicide bombing is one
of the manifestations of the anti-state psyche developed after getting detached from the
caring hands of the state.

It was the suo moto notice taken by the Supreme Court the other day to debunk what lied
beneath the case. The case also exposed two more points: firstly, the major beneficiary of
the independent judiciary was the deprived and weak sections of society; and secondly, the
mode of appointment of judges should be kept away from the politicians.

The judiciary is also criticized for its decisions depicted as pouching on the province of the
executive in the name of judicial activism. But who will listen to the wails and woes of the
poor and deprived devoid of any clout? If the executive (or the legislature) had the ears,
the apex court would not have felt the need to take a suo moto notice: it was both
complacency and complicity of the officers of the judicial department to perform an illegal
act in order to gratify the minister.

To extend the observation of Justice Khalil-ur-Rehman Ramday further, not only Asghar Ali
Shah, the Additional Session Judge, should have withstood the political pressure but also
the officials of the Ministry of Prison. Both should have refused the Minister, Mian Nisar Gul,
to act beyond their legal limits. But that refusal required moral courage which was quite
scarce around. As the saying goes, all the police are not the motorway police – which abide
by only the dictates of law.

If the context is Pakistan and a sitting minister is asking for an out of the way favour, the
subordinate officers find a chance to reassure their services by compliance in return of
which they may be offered chances to stay clung to the minister for the rest of his life. Both
Mian Nawaz Sharif and Asif Ali Zardari have plenty of such devotees around – giving birth
to a chain of aficionados down to a peon and converting the public offices to personal
fiefdoms. Pakistan has yet to taste the fruits of democracy where the rights of the poor are
undeniable and where the minorities are free to live and follow their faith.

The case of Mian Nisar Gul is also a perfect example to answer why the politicians should
be provided no space to interfere in the judicial matters even through the mode of
appointment of the judges, the administrative route. (Article 175-A inserted through the
18th Constitutional Amendment envisages the appointment of judges through a judicial
commission followed by approval of a parliamentary committee.)

Arguing against the petition filed by the Supreme Court Bar Association (SCBA) challenging
the new procedure of appointment of the judges to the Supreme Court, Barrister Wasim
Sajjad said (in the reply filed on behalf of the federal government) that the Constitution
envisaged parliament as a sovereign body and, as spelt out from its preamble, that
sovereignty over the entire universe belonged to Almighty Allah alone and … this Authority
was to be exercised through the chosen representatives of the people through parliament.
On the contrary, in practice, deeds of the chosen representatives are that they try their
best to prove themselves above the law.

When a public representative and the state machinery are a party to an issue, what
recourse that poor girl could have adopted. Had there been no independent judiciary
around, no one outside of Kohat would have heard of the case. By submitting to the illegal
dictates of Mian Nisar Gul, both the officials of the Ministry of Prison and Asghar Ali Shah,
the judge, abetted in the crime committed by Mian Nisar Gul.

By taking cognizance of such matters, the superior judiciary is strengthening the
relationship between a citizen and the state. Further, if the politicians start playing their
roles in appointment of judges, it is feared that the membership of the courtiers might be
extended to the judiciary.

In fact, more than the judiciary, independence of the judiciary is need of the poor and
deprived sections of society who hold no clout in society and who have – perhaps no –
inalienable rights to protect.

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