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WAF Karachi calls for accountability of the Chief Justice of Pakistan

July 1, 2018

WAF Karachi calls for accountability of the Chief Justice of Pakistan

The Women’s Action Forum (WAF) was founded in September 1981, as a pressure group to struggle against dictatorship, religious discrimination, for the restoration of democracy, and to promote the rights of women, religious minorities and the economically disadvantaged. WAF is a non-funded, non-partisan, secular organisation that believes that women's rights are human rights, and that all citizens must be treated with equality regardless of sex, class, creed, sect, ethnicity, and faith. WAF is firmly committed to the separation of state powers, and believes the military and religion should remain out of politics and governance.

In 2007, WAF was at the forefront of the Lawyer’s Movement as part of civil society’s struggles for a principled demand, that is, the supremacy of the Constitution through the restoration of then Chief Justice, Iftikhar Chaudhry, illegally deposed by a military dictator. WAF has supported and fought for judicial independence based on its belief in the principle of the separation of powers as intrinsic to democracy. Therefore, WAF is aggrieved by the blatant politicisation of the Supreme Court of Pakistan due to the conduct of the Chief Justice of

Pakistan (CJP), Mian Saqib Nisar. Over the course of his tenure, the CJP, through his remarks and actions, has indulged in conduct unbecoming of a judge. This has raised serious questions regarding his ability to adjudicate in an independent, neutral, non-partisan and impartial manner. He has failed to keep his office free of controversy and uphold the rule of law.

WAF is sympathetic to the recent objections to the conduct of the CJP as noted by the Karachi Bar Association and Women Lawyers’ Association Karachi, and is fully aware of the dangers of populism despite its temporary appeal. The inconsistent invocation of Article 184 (3) and its exercise for populist reasons, yet lack of action on ‘unpopular’ issues when fundamental rights are violated - violence against ethnic and religious minorities, muzzling of dissent, media censorship, illegal detentions, arrests and disappearances of citizens (political workers, journalists and activists), human rights violations reported by the Pashtun Tahafuz Movement and curbs on their freedom of assembly and movement - shows selectivity and has politicised the judiciary. WAF fears that the inconsistent use of Article 184 (3) powers blurs institutional boundaries and undermines the separation of powers instead of bringing any substantive changes or meaningful reform. This is a disservice to the Constitution and the institution of the judiciary.

The CJP’s extra judicial pursuits and saviour complex are in serious violation of democratic norms and defy the principles of the separation of powers. Moreover, threatening contempt to deflect criticism is authoritarian and counter-intuitive to strengthening democratic institutions. WAF has developed a record of the populist political commentary of the CJP and noted how these actions violate Articles I, II, III, IV, V, VII, VIII, IX and X of the Code of Conduct for Judges of the Supreme Court and High Courts, 2009. A few examples are listed below from what is an exhaustive list which cannot, for the sake of brevity, be included in this statement:

The CJP’s refusal to verbalize the term “Hindu” at an event in Quetta; his choice to quote Churchill to compare the length of a good speech to a woman’s skirt; and his class bias as revealed in his advice that citizens who sell milk or run paan shops should not enter the legal profession, are a few examples of violations of Article III of the Code. These are contrary to the spirit of Articles 20, 21, 22 and 25 of the Constitution. The CJP’s inappropriate comments on women’s issues or to women lawyers and contemptuous behaviour towards judicial colleagues has further undermined the dignity of the office (the most recent of these was the on-camera humiliation of the District Judge in Larkana).

In a recent hearing in Karachi when the families of missing persons appeared in court, the CJP was irked by their anger and grieving, which he considered to be a violation of court decorum. And yet, the CJP himself shows no restraint and is consistent in his commentary on unconnected issues during court proceedings that serve as fodder for headlines and tickers. This clearly violates Article III of the Code. Furthermore, in blatant violation of Article V, which prohibits a judge from seeking publicity and engaging in public controversies, the CJP gave an interview to AwazToday as published on 22.03.2018 as “Chief Justice Ke Sath Aik Taweel Mulaqat.”

The CJP’s inspection visits are political gatherings masqueraded as official duty orchestrated with slogans of “CJP Zindabad” and “Chief Justice tere jaan nisar beshumar”. The CJP has been quoted claiming the undertaking of “jihad” in the form of suo motu notices on issues of public interest. The CJP’s involvement in extrajudicial work amounts to breach of Article VII of the Code. His extrajudicial activities have simply contributed to an increase in pendency in cases which lowers the ranking of Pakistan in ease of doing business (EODB). For this too, he stands in violation of Article X of the Code.

WAF strongly condemns the harassment of individuals by the CJP simply for their familial links, or for being paid high salaries as career professionals. This attitude itself is a violation of Article IX of the Code. We wish to remind the CJP that his salary is a bigger burden on the national exchequer than that of those individuals being bullied. According to the details shared by the then Law and Justice Minister Zahid Hamid with the Senate in 2017, the salary of a CJP costs the national exchequer PKR 14 Million a year, excluding the benefit of chauffeur driven cars, fuel, house rent, medical allowance, daily allowance, and ticket concessions, while the total of the salaries of 134 Supreme Court and high court judges can reach up to PKR 1.9 Billion annually.

The CJP’s commentary on the economy, dams and CPEC fall well beyond his mandate. His arbitrary guarantees and promises for unconditional support to CPEC, combined with direction to the lower courts to not issue ex-parte orders in CPEC-related matters are open admission of the exercise to influence the decisions of the lower courts. This failure to maintain detachment from the likely litigant (ie. CPEC cases) violates Article VIII of the Code. The CJP’s stated opinions about Pakistan’s executive while on visit to China were completely beyond his mandate. All such matters compromise the impartiality and independence of the judiciary.

The CJP has also behaved as a self-acclaimed moral angel and misused his authority in treating Pakistanis as infants to be chastised and prevented from what he considers inappropriate TV viewing preemptively preventing cable operators from airing ‘obscene content.’ The presumption of guilt, before the act is even committed, has implications for rights guaranteed under Article 10 A. The decision itself impinges Article 19 A where citizens may decide rather than have the court decide for them.

The CJP has had to defend himself against allegations of the political motives that inform his judicial activism. This has resulted in a loss of public confidence in the independence of the institution and renders the CJP incapable of executing the office of the Chief Justice of Pakistan. In holding everyone else to account, it seems the CJP has forgotten that he too, is accountable as a public servant, in the service of the people of Pakistan, charged with the duty to abide by a mandate as laid down by the Constitution of Pakistan, bound also by the code for judges.

With national elections due, it is imperative for all individuals and institutions to refrain from transgressing their constitutional mandate. Such overstepping also encourages the Armed Forces to make political comments on the 18th Amendment (later retracted); threatens the democratic will and consensus of the people of the entire Federation; and undermines the dignity of the judiciary. It is not enough that the elections are held on time but these must be conducted in a fair and impartial manner, under an environment free of any sort of coercion. The judiciary must abide by its mandated constitutional role and ensure fundamental rights are upheld and due process guaranteed to all.

We do not need saviours. We need systems and institutions that work effectively and equally for all.

#statement #CJP #SCP #ChiefJusticeOfPakistan #SupremeCourtOfPakistan #Democracy #Elections

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