A shackled judiciary in Pakistan

The annals of history will mark the June 4, 2018 as one of the darkest days in Pakistan’s already marred judicial record.

Khadija Siddiqui, a young woman, was stabbed over twenty-four times by her attacker, who happened to be the son of a Bar representative. On June 4, 2018, he was acquitted by the Lahore High Court (LHC).

Despite forensic reports confirming the accused’s involvement in the brutal act, the High Court (HC) found a way to curtail the obvious: Khadija deserved justice.

This is quite similar to another case. In July 2017, the same LHC judge set free a man involved in the disappearance of an underprivileged woman and her son. A petition for the recovery of a young woman and her son was filed on behalf of her mother in the LHC in June, 2017. The family was impoverished and the missing girl had been secretly married to and had a son with an influential member of the Bar. The mother eventually retracted her statement and another concerned citizen filed a recovery petition on the girl’s behalf. The very judge responsible for acquitting Khadija’s attacker understood the influence associated with the opposition. He saw the throngs of lawyers gathered around the petitioning team. It seemed like a quick cost-benefit analysis. The cost of holding the Bar leader accountable would mean trouble for him. The benefit of letting him go would mean safety. In this analysis, a poor woman and her child were abandoned. It was because of this that the influential Bar leader was let go, free from accountability. To date, the girl and her child remain missing.

Let’s consider another example. An eight year old domestic labourer was physically assaulted by the wife of an Additional Sessions Judge in Islamabad in January, 2017. The trial court was influenced to the extent where a doctored forgiveness deed which was supposedly issued by the child’s parents was accepted by it. The Judge’s cousin was presiding over a portion of the proceedings. This prompted the Supreme Court (SC) of Pakistan to take notice of the incident. After a lengthy process which involved grilling the family and the prosecution, the case was sent by the SC to the Islamabad High Court (IHC) for trial. What was calming was that someone understood that the lower judiciary had been swayed. Following the SC’s directions, a judge of the IHC saw the need for deterrence in this case and understood the importance of justice for the child domestic labourer. He sentenced the judge’s wife to imprisonment and a fine in April 2018, after conducting a laborious trial. Alas! The carefully written judgement was suspended three days later by a Division Bench of the same court.

Why am I quoting these examples? Because they all have something in common. On the opposing sides in these cases stood powerful Bar leaders and judicial officers; people Judges wouldn’t like to offend.

But we will focus more on the influence of bar politics on judicial decisions.

Following an incident that took place in early August, 2017 when a Bar president broke a Judge’s chair in a bid to intimidate him; it became evident that not many members of the judiciary were willing to take eminent members of the Bar to task. Over the past few years, it has become evident that the lowest judicial forum to the HC has been overtaken and marred by bar politics. It is not news that bar leaders have assaulted trial court judges, abused HC judges and have flouted judgments passed against them. This pressure tactic has transcended into more flexible judicial members affording leaders favours where they can, in order to protect their interests and avoid conflict.
But at what cost must Judges protect themselves? How many times can Judges gloss over apparent facts and settled legal principles to afford prominent individuals favours?

Are people on the weak and vulnerable side not allowed access to justice simply because of their lack of connections?

As judicial populism reigns supreme, we are forgetting that there are rights that need to be protected beyond the suo motu remit. There is a backlog of cases demanding justice, and while some decisions may not be politically correct; they are necessary. They are necessary to protect those who demand and deserve justice.

Harsher words have been used in the second value of the Bangalore Principles of Judicial Conduct for the situations mentioned above. Deeming integrity as one of the key facets of judicial conduct, judges have been advised to refrain from biases or preconceived notions in cases. It requests judges to divorce themselves from their relationship with the legal fraternity while deciding cases. However, in recent times relaxed integrity has become a trend that seems impossible to overturn. It seems as though justice is for people with the right connections, for lawyers with the right parentage and for culprits with the right entourage.

Victims are seldom heard, and only by judges who look at the greater picture. I should add here that there are undoubtedly a number of judges who have exercised complete impartiality, independence and integrity in deciding cases. Unfortunately, their celebration is rare, their praise is whispered but not loudly sung. Glorified are unfortunately those who are more flexible in passing decisions.

So, while the Bar and Bench must work together for a more cohesive legal system, it must collectively sidestep nepotism and decide cases in accordance with the law.

Judges must be held accountable for passing decisions that are aligned more with personal ideologies or political motivations.

The best solution is not always taking suo motu notice. Rather it is important to enable the judiciary to divorce itself from the Bar in areas where judicial independence is compromised. It is only then that we can save Khadija, Tayyaba and the countless other victims who have fallen prey to this vicious relationship between Bar politics and judicial flexibility.

Because after all, not only must Justice be done, it must also be seen to be done.