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Friday May 27, 2022

An unwanted adversary

May 14, 2022

In the 11th century, despite being warned, Byzantine emperor Michael VII turned to an infamous conman named Nikephoros for advice in strengthening his control over the empire. As prophesied by elders, Nikephoros turned out to be a complete disaster. Michael VII’s authority was compromised, the empire slumped to its knees and collapsed. Amidst utter chaos, the emperor was deposed and Nikephoros was exiled.

Machiavelli warned the Prince about the dangers of flattery in times of indecisiveness and crisis. Whenever there is political turmoil or dearth of novel ideas, it’s easy for leadership to fall for the schemes of intellectual conmen, who have the unique ability to effortlessly sway leadership. Their unremitting loquaciousness, incessant sycophancy and (ostensive) cerebral supremacy compel leaders to take a path leading to irreversible calamities.

In the present constitutional impasse, a myriad of legal conmen with half-baked understanding of legal principles have found their way among the top leadership of the PTI. Now Punjab Governor Omar Cheema has said he will file a reference against Justice Jawad Hassan of the Lahore High Court (LHC) in the Supreme Judicial Council (SJC). He contends that Justice Jawad committed misconduct when he passed his judgment directing the National Assembly speaker to administer the oath to Hamza Shehbaz as Punjab’s chief minister.

Seemingly, Omar Cheema has been ill advised by a legal conman to file a reference against Justice Jawad. The governor is in no position to file a reference against a superior court judge; this is the prerogative of the president as per Article 209 of the constitution. The governor can only file a complaint in the SJC against a superior court judge. Even such a complaint, in my view, is not maintainable. A bare reading of Article 209 of the constitution and the jurisprudence settled in relation thereto makes it clear that no complaint is maintainable against a superior court judge on account of a purported error in his judgment. As per Article 209, judges of a superior court can only be removed on three grounds: physical incapacity; mental incapacity; and misconduct. Article 209 also makes it abundantly clear that a superior court judge shall not be removed except as provided by this Article. Thus, there is no other ground including “error in judgment” on the basis of which a judge can be removed.

Likewise, the assault on Justice Jawad – based on the malicious and erroneous advice of some legal conman – is unfortunate. Justice Jawad is competent and enjoys a very good reputation, his judicial activism inspired by affection for rule of law, civic rights, environmental protection and social justice has received recognition even at the international level. Filing a complaint against a judge of a superior court in such a manner by the governor is a matter of grave concern – and should be based on cogent reasons.

The PTI leadership needs to wind up its excessively aggressive and outrageous strategy towards the superior judiciary. Rule of law unravels its substance through the courts; therefore, the authority of the courts has to be jealously guarded and no class of persons should endeavor to impair the administration of justice. Furthermore, scandalizing the judiciary is against public interest as it infuses in the minds of the people general dissatisfaction about the fairness of judicial verdicts. The substructure of the judiciary is the confidence of the people: whenever people’s fidelity to the courts trembles, it corrodes public trust which is the entire edifice on which the superstructure of the judiciary stands.

Only a non-controversial judiciary is an independent judiciary. Without an independent judiciary, rule of law is a mirage. The PTI leadership needs to realize the judiciary is not an adversary but a state institution, the ultimate guardian of the fundamental rights of the people of Pakistan including members of the PTI. Even these days, the judiciary is protecting the PTI, its members, workers and social media team against the illegal escapades of the FIA. As a lawyer, I have seen self-righteous and egoistic judges refusing relief to their critics or lawyers out of vengeance and pettiness. Despite facing harsh criticism, Justice Ather Minallah has granted relief against the FIA to his critics hailing from the PTI. Even in the future, leaders of the PTI, its members’ and activists’ last resort against the mis-adventures of state institutions will be the judiciary. And, for that, it is in the supreme interest of the public that our judiciary must remain independent.

Fair criticism of the judiciary in developed democracies and republics is an accepted norm and a beneficial exercise. However, launching an unwarranted crusade against the superior court judges over disagreements with judicial verdicts shouldn’t be in the tool kit or strategy bag of a political party. As former CJ Gulzar Ahmed fittingly observed, while addressing lawyers in Lahore, “appeal not violence is the best revenge against a judge who transgresses constitutional and legal boundaries”. If one is aggrieved by an order of a judge, the next and only plan of action should be appeal to rectify the wrong. Indeed, the judiciary is an unwanted adversary but to realize this one needs to have professional and competent lawyers around – not toadies like Nikephoros.

The writer is a Lahore-based advocate of the high court.

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