ISLAMABAD: Justice Maqbool Baqir said on Monday that exclusion of certain judges from the hearing of sensitive cases on account of their independent and impartial views had an adverse effect on the impartiality of judges.
Addressing a full Court Reference on the eve of his retirement, he said that this practice also tarnished the public perception about the independence and integrity of the judiciary.
He said, “This practice also tends to affect the morale of judges who are consigned to less significant benches and fosters feelings of estrangement amongst members of the bench.” Justice Maqbool Baqir stressed the need for evolving an objective criterion for appointments and also making proceedings before the Supreme Judicial Council more transparent.
“Notwithstanding the merits of such claims, the outgoing judge said that the gravity of this perception cannot be overstated. Resultantly, we must evolve an objective criterion for appointments and also make proceedings before the Supreme Judicial Council more transparent,” he said.
“Needless to say, it would be devastating if the tenure of office of a judge is in reality made dependent on the acceptability of his judgments by those wielding power, and the prospects of further elevation of a judge are jeopardized on account of his judgments not being well received by certain quarters,” Justice Baqir said.
He said, “Another vital aspect which, even though it pertains to the internal dynamics of the judiciary, but has a very serious bearing on its independence, impartiality, and integrity is the issue of assignment of cases.”
He said that the United Nations Special Repertoire on the independence of judges urged a fair and objective criterion for the assignment of cases which would protect judges from undue interference.
“While speaking about alienation, let us also address an issue that has created fissures amongst members of the bench,” Justice Baqir said. “As someone has frequently dissented with my brother judges,” he said and added, “I have been in agreement with Chief Justice Hughes of the US Supreme Court when he said, “A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed”, Justice Baqir said.
He said that during his time on the bench he had witnessed to a number of consequential events. One such event, he said occurred in March 2007 when the then Chief Justice was capriciously removed from office. In an unprecedented move, he said lawyers and members of the civil society from across the country came out in protest.
“As the regime’s repression and attempts to emasculate the judiciary became more severe, so did the resolve of those struggling for the rule of law and supremacy of the Constitution”, Justice Baqir said.
He said, “Today more than a decade since that movement, it was worth asking whether we, the judiciary, delivered all that we promised, for without sincere and candid introspection, we would be adrift. This question is perhaps particularly pertinent given that the country finds itself in the midst of another constitutional crisis and is looking towards the judiciary to once again preserve our democratic order from crumbling into tyranny and despotism.” He said that delays and pendency remain at an all-time high across all the courts in the country adding that the reality ought to be disconcerting for all stakeholders.
“It is, therefore, imperative that we remove encroachments in the path of expeditious and inexpensive justice and build dams against unnecessary delays in adjudication with sincerity of commitment and a single minded focus on fulfilling our constitutional role”, Justice Maqbool Baqir said.
“Speaking about the rule of law and particularly the independence of the judiciary; critical to our independence is transparency in both: judicial appointments and removals”, Justice Baqir said.
“Given that dictatorial as well as democratic regimes have attempted to subjugate the judiciary, our proclivity to jealously guard our freedom is understandable, he said. “Nonetheless, independence may not degenerate into judicial dictatorship. We must not become prisoners of our past and inward looking in our approach. Opacity erodes the public trust and confidence in the judiciary.
“The judiciary would, therefore, do well to hold itself to the same standards of transparency, objectivity, and meritocracy that it holds every other institution to”, Justice Baqir said. Meanwhile, Attorney General Khalid Jawed Khan said he was intending to resign after the Presidential Reference but had changed mind.
“I was intending to resign after the Presidential Reference, but as in the good time, I will keep the company in bad time. Stepping down in these circumstances will be equal to leaving the field without contest,” said AGP Khalid Jawed while addressing the full court reference over retirement of the Supreme Court’s Justice Maqbool Baqar, which was attended by all judges of the apex court, presidents of the Bar and senor lawyers.
Addressing the reference, Attorney General Khalid Jawed Khan said,“Justice Maqbool Baqar has an excellent judicial career behind. It will be injustice if Justice Baqar’s role during the PCO period is not referred to,” the AGP said.
“The dictator was not aware that he would be awarded punishment over breaking the constitution,” he said. “Nowadays Article 6 is being conveniently referred to against political opponents,” he said. “The 2007 episode will have to be kept in mind for understanding Article 6,” the AGP added.