Senior judges should have role in formation of SC benches: Maqbool Baqar

KARACHI: Former Supreme Court judge Maqbool Baqar said on Sunday the Constitution doesn’t give the chief justice absolute power to induct, elevate or hold a judge accountable.

Speaking at the Karachi Literature Festival’s session titled “Rising Expectations: Pakistan’s Judiciary in Focus,” moderated by senior lawyer Faisal Siddiqui, Baqar said an independent judiciary plays an important role in society’s development, well-being and welfare, adding that the judiciary could strengthen and become impartial and independent if it functioned according to the Constitution.

He maintained that a judge who was strong and committed and had a vision, conviction and knowledge would never come under any influence. “If you have a skeleton in the cupboard, lust for power, money and fame and biased, then you are inclined to those who wield power,” he added.

Baqar said corruption persisted in the judiciary but to what extent was anybody’s guess. He said the induction of judges had not invariably been on merit as nepotism, favouritism and the sacrifice of merit factored in. “The 18th Amendment calls for a participatory process for the induction of constitutional court judges with the application of collective wisdom,” he explained. “The Constitution doesn’t give the chief justice absolute power to do whatever he desires when it comes to elevation, induction or accountability of judges.”

He said the chief justice initiates the process of nomination of judges on his own though most members of the judiciary and Judicial Commission of Pakistan believed that it is not an exclusive power and that they should also be consulted when names are proposed.

Baqar opined that judges, who were involved in any unscrupulous activity, tended to please people with power and authority and never confronted or offended them and if any complaint was filed against them, it was swept under the carpet. He said he could name people “who had been notorious but still remained at the helm of affairs and had a say in administrative decisions, the formation of benches and assigning of cases,” but that would be a personal attack.

He said the chief justice’s exclusive discretion regarding the formation of benches ought not to be exercised the way it was being done and at least senior judges should have participation in them, adding certain benches with a specific approach heard sensitive cases, including those of political nature.

Noted lawyer Hamid Khan said the current mechanism of accountability of judges dated back to the 1962 Constitution under which the Supreme Judicial Council was formed having complete representation of judges to decide how it had to proceed against a judge. Previously, he added, the President could only send a reference to the council against a judge on the recommendation of the Prime Minister, but sending a reference against a corrupt judge was out of question because he would always be obliging and pleasing the government.

In 2003, he said, the 17th Amendment empowered the Supreme Judicial Council to also proceed against a judge on the basis of a complaint but then judges started protecting each other. “Complaints against judges with tainted reputation are received but they never come to light nor action is taken and on the contrary, judges who are not on good terms either with the establishment or judges at the helm of affairs are punished”

“The Supreme Judicial Council has been rendered completely ineffective. It has seemingly become an institution of victimisation rather than accountability in the past decade and a half,” he opined.

Khan said parliament had been unable to assert its role and had been weakened and rendered irrelevant over a period of time, shifting all the burden onto the judiciary.

Pulvasha Shahab said the judiciary could not fulfill its duty of delivering justice to all if it was male-dominated because then there were ideas and perspectives that would be absent from its jurisprudence.

Online adds: Justice (retd) Maqbool Baqar was of the view that clashes among institutions were prevalent mainly due to the fact that democracy could not flourish in the country. “Some people use democracy for power grabbing. Let me also underline that politicians unfortunately have been soft targets while the media is also among the list of victims. Such instances pave the way for undemocratic forces to form an alliance but there are exceptions too,” he remarked. He lamented that undemocratic people had never been punished in the country but pointed out that the atmosphere was now changing.

Meanwhile, former President of the Supreme Court Bar Association Hamid Khan said the judiciary couldn’t be viewed as an independent entity as he stressed that the weakness of parliament was equally responsible for the predicament. He recalled that ex-SC Chief Justice Asif Khosa had exercised his powers to take suo motu notice of the extension given to former Chief of Army Staff Qamar Javed Bajwa. However, both benches in the parliament demonstrated rare unity and the decision was given a legal cover through a law and later another six months were given to decide on the matter. He said that the accountability of judges was missing from the process.