Former Supreme Court judge Maqbool Baqar has said the judiciary is no exception when it comes to corruption, and shortcomings in the key pillar of the state has a “direct linkage” to the process of inducting judges.
“The inductions in the judiciary have not been up to the mark [right from] our independence. There was nepotism, favourtism and sacrifice of merit soon after we inherited the Government [of India] Act 1935 after the creation of Pakistan,” Baqar said while addressing the Karachi Literature Festival (KLF) during a panel discussion titled Rising expectations of Pakistan’s judiciary.
The panel also featured well-known legal eagle and seasoned lawyer Hamid Khan and another prominent lawyer Palvasha Shahab. The session was moderated by Faisal Siddiqi.
In his remarks, Baqar — also a former Sindh High Court chief justice — said no institution was free of corruption.
“There is corruption [in judiciary also], but it can’t be said at what level. We have had notorious members. I can name them but it would be personal, hence, I should not comment further,” he said.
He was of the view that clashes among institutions were prevalent mainly due to the fact that democracy was unable to flourish in the country.
“Some people make use of 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 non-democratic forces to form an alliance but there are exceptions too,” he remarked.
He further said that there were examples of chief justices abusing their power. “Likewise, there are shortcomings in the judiciary and its direct linkage is with inductions”.
Though, in Baqar’s view, there was no harm in discord within the institution.
He lamented that “undemocratic people” had never been punished in the country but pointed out that the atmosphere was now changing.
When asked about the general perception regarding the judiciary being influenced by external elements, Baqar was cautious yet categoric in his reply.
“As far as influences are concerned, well, yes and no. Nobody can influence or pressure anyone. If you are strong deep down and you have conviction, no one can pressure you. You cannot be confident until are strong and insightful.”
The former judge said a person’s independence boils down to his own vision, commitment and determination.
“You need character, courage and caliber for this independence. In any society, an independent judiciary plays a critical role for its progress and security and welfare of people. And that role is well-defined in the Constitution,” he said while explaining the significance of an independent judiciary.
He also talked about the recent discord in the legal fraternity regarding the decision to elevate judges to superior courts.
“The majority demands rules for this process. There is a demand for determining the parameters. The perception is that inductions have been based on nepotism. If the induction process is laced with corruption, then problems will surface. After all, corruption is not just financial — it is moral, social and political too.”
‘Judiciary can’t be seen as independent entity’
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 General (retd) Qamar Bajwa.
“However both the benches in the parliament demonstrated rare unity and the decision was given legal cover through a law, and later another six months were given to decide on the matter.”
He further said that the accountability of judges was missing from the process. “Previously, judges did not have power as the president was expected to send references. It was also assumed that the president won’t send a reference against a corrupt judge. Because ultimately the government is the beneficiary of decisions that favour them.”
He called out the Supreme Judicial Council, saying it has become “ineffective body”. “We have not seen it take suo motu notice for the last 15 or 20 years. Non-transparency is rife in the Judicial Commission of Pakistan and the SJC.”
‘Gender imbalance in judiciary needs to be addressed’
In her remarks, lawyer Palvasha Shahab stressed the need for an independent judiciary so that the institution could ensure justice is delivered.
She pointed out that dispensation of justice will be impacted if the judiciary was wholly or predominantly male dominated. “The judiciary doesn’t operate in a vacuum,” she remarked.
She believed that if the judiciary could not take notice of “violent patriarchic public reason”, it cannot claim legitimacy and assert it is doing its job.“
“When we saw the appointment of Justice Ayesha Malik, there was a hue and cry. But the kind of reaction to her nomination was reactive. This is the older pattern in Pakistan.”
She expressed surprised that there was no women representation in the Pakistan Bar Council, which she said comprised of 23 male members. “Until we really streamline the system, we will struggle in ensuring equity and justice.”