Why judges are playing havoc with the Constitutional Framework?

OpinionWhy judges are playing havoc with the Constitutional Framework?

By Agha Iqrar Haroon

Enjoying the position at the lowest bracket of the global ranking of Justice, Pakistan’s justice system still does not want to hear criticism because it enjoys constitutional immunity nevertheless it also enjoys to infringe on constitutional immunity provided to other institutions like Parliament and the Armed Forces.

   

Article 69 of the Constitution of Pakistan 1973 protects the operation and decisions of the Parliament and it bars courts from intervening in proceedings of the Parliament. The Article 69 categorically says:

(1) The validity of any proceedings in 1[Majlis-e-Shoora (Parliament)] shall not be called in question on the ground of any irregularity of procedure.

(2) No officer or member of 1[Majlis-e-Shoora Parliament)] in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order in 1[Majlis-e-Shoora (Parliament)], shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.

(3) In this Article, 1[Majlis-e-Shoora (Parliament)] has the same meaning as in Article 66.

Nonetheless, there are hundreds of instances where the higher judiciary has not only made hurdles in the operations of the Parliament but rather reverted law/act passed by the Parliament and made Parliament virtually de-moralized component of the State and denied the ‘Supremacy of the Parliament’.

The same situation is now faced by the Armed Forces whose operations are protected under Article 199 (3). This clause says:

An order shall not be made under clause (1) on an application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.

In recent observations a judge of Islamabad High Court not only demanded the appearance of officials of intelligence agencies rather ordered them to explain their operations and even asked how many vehicles and personnel have such and such intelligence agencies. Even a novice journalist understands that such information is highly classified and directly linked with security issues and such information in normal circumstances is bought by enemy intelligence agencies by offering hefty amounts. How could a judge be so reckless? was a question in the minds of journalists present in the courtroom that day.

Related Story: Is Justice Mohsin Akhtar Kayani playing the Final Stroke?

It may be remembered that in the last week of May Justice Mohsin Akhtar Kayani of Islamabad High Court directed the Defence Secretary to appear before the court along with Sector commanders of ISI and Military Intelligence and shared information on how many cars, personnel have intelligence agencies and how did they work and share also their operational nitty gritty. Facing charges of misconduct in the Supreme Judicial Council (SJC), Justice Mohsin Akhtar Kayani knowingly that the judge of the High Court could not summon personnel of the Armed Forces under Article 199 (3), he continued to demand the appearance of faceless officials of spying agencies. On his conduct, government circles claimed that Justice Mohsin Akhtar Kayani wants to become a “victim hero” by raising the temperature against law enforcement and intelligence agencies of the country because he knows that he has nothing to defend himself in SJC but he is putting pressure on intelligence agencies to appearing before the court although he knows that he cannot call personnel of Armed Forces in High Court under Article 199 (3). His remarks were irrational and even out of context and people present in the courtroom could feel that the Honorable Judge was suffering from severe mental stress and anxiety.

If we deeply review the situation in higher courts, it seems that unfortunately, it has been felt for some time now that some members of our esteemed judiciary have decided to challenge the constitutional framework thereby trespassing and intervening in the working of other constitutional institutions like the Parliament and the Armed Forces (as example mentioned above) but if someone raise a legitimate question about the working the judiciary, they immediately use the sword of Contempt of the Court and it seems that all the problems of Pakistan are over, and the only problem of Pakistan is Contempt of Court.

Justice Mohsin Akhtar Kayani and Justice Babar Sattar of the Islamabad High Court have been keeping their daily judicial duties aside for several weeks and are running around themselves. It is pertinent to mention that some documents were uploaded on social media by some quarters regarding Justice Babar Sattar’s citizenship and claimed that Justice Babar Sattar is a US Green Card holder but this information is not shown in his official record. However, the then Chief Justice of IHC who is now Justice of the Supreme Court said that Justice Babar Sattar, before his appointment as a judge, verbally informed him that he (Justice Babar Sattar) is a Pakistani citizen and holder of a Green Card. Nonetheless, such information is not shown in his official record. His nationality issue was raised by politicians and parliamentarians as well as media reported this issue and questioned the travel of Justice Babar Sattar to America without a visa. It has also been questioned by social media circles that he and his children also have properties in the United States and how will it be proved that they are not American citizens?

The answers to these questions are still pending, and Justice Mohsin Akhtar Kayani, who is hearing this case is already facing breach of conduct charges in the Supreme Judicial Council including his alleged involvement in real estate scandals and his name is appearing in mega rear estate scandals like of Lake View Lane. According to details of the judicial sources, the Lake View Lane Housing Society has so far encroached on 15 to 20 kanals of CDA land and five to six kanals of land on the banks of the Kuring River. It should be noted that Mohsin Akhtar Kayani, the lawyer of Ghori Town is also in the news for large-scale irregularities in land procurement, encroachment, and illegal transactions. It is surprising that if someone questions the conduct of judges like Justice Mohsin Akhtar Kayani and Justice Babar Sattar, he or she faces the threat of Contempt of Court. If the question is asked by Faisal Wada and Mustafa Kamal, it is considered contempt of court, but if the abusive language against judges like using the word ‘touts’ is used by PTI’s circles like the comments of Raoof Hassan and Shoaib Shaheen, no response comes from higher judiciary.

PTI judges

Today Pakistan is at 139 in the world judicial raning due to certain judges of the honorable judiciary who are merely concerned about their respect and reputation instead of looking at the reasons why millions of prisoners are facing millions of cases year after year and a backlog of cases in courts are increasing day by day while certain members of the higher judiciary during the last two years spent maximum time for bailing out the leadership of PTI. Any case that comes from PTI is taken almost the same day and is fixed for hearing almost in the same day and the hearing starts the next day. Is it the judiciary of the public or the judiciary working only to protect itself from contempt and for bailing out PTI leadership? Even this question falls under Contempt of Court.

Disclaimer:

The views and opinions expressed in this article/Opinion/Comment are those of the author and do not necessarily reflect the official policy or position of the DND Thought Center and Dispatch News Desk (DND). Assumptions made within the analysis are not reflective of the position of the DND Thought Center and Dispatch News Desk News Agency.

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