ISLAMABAD: The exclusion of certain judges from hearings of sensitive cases on account of their independent and impartial views has an adverse effect on the impartiality of judges and tarnishes perceptions about the judiciary’s integrity, Justice Maqbool Baqar of the Supreme Court said on Monday.

The assignment of cases has a serious bearing on the independence, impartiality and integrity of the judiciary, emphasised Justice Baqar in his speech at a full court reference held in his honour on reaching superannuation.

Chief Justice of Pakistan Umar Ata Bandial described his speech as a poetic message to all the judges, adding that he would try to find out the facts.

“But Justice Baqar never raised these issues with me after I became the Chief Justice,” the CJP said.

Legal experts believe Justice Baqar made the observation against the backdrop of non-inclusion of senior judges like Justice Qazi Faez Isa in important cases.

Justice Baqar emphasised that this practice tends to affect the morale of those judges who are assigned to less significant benches and fosters “feelings of estrangement” amongst members of the judiciary.

Justice Baqar pointed out that there was a tradition that judges refer to those who give a different ruling in a particular case as their ‘learned brother’, implying that notwithstanding their disagreement on the interpretation of legal provisions, the other judges’ views deserved respect.

“Nonetheless, the manner in which we have referred to one ano­ther while differing with each other’s views in the recent past should cause immense discomfort to all of us,” Justice Baqar regretted.

“Could this country expect us to be temperate, balanced, and respectful when we were incapable of displaying the most common of civility and courtesy to our own colleagues,” the judge wondered.

Justice Baqar referred to a growing perception that judicial appointments and disciplinary proceedings were influenced by extraneous considerations. “Notwith­standing the merit of such claims, the gravity of this perception cannot be overstated.

“We must evolve an objective criterion for appointments and also make proceedings before the Supreme Judicial Council more transparent,” Justice Baqar stressed.

He said it would be unfortunate if the tenure of a judge were made subject to the ‘acceptability’ of his judgements, and career prospects jeopardised if his decisions do not go down well with those in power.

Experience suggests that unbridled discretion, particularly when vested in non-elected institutions, results in rewarding loyalists and those amenable to the diktat of authority at the expense of merit and fairness, the judge observed.

“This retards the growth of democratic institutions.”

Justice Baqar regretted that the judiciary had fallen short of expectations. Delays and pendency remain at an all-time high across all courts in the country. The reality ought to be disconcerting for all stakeholders, he added.

“It is imperative that we remove impediments 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,” the outgoing judge said.

“Unbridled judicial activism spells the death of the rule of law,” he sounded a note of caution. Justice Baqar said it was regrettable that the judiciary remains silent on incidents like kidnapping of journalists. “Abdication of res­ponsibilities by courts emboldens those who trample fundamental rights and muzzle free speech.”

It also hurts the nation’s confidence in the judicial order’s ability to dispense justice without fear or favour, Justice Maqbool Baqar said.

In a democracy governed by the rule of law under a written constitution, he added, the judiciary is expected to protect fundamental rights and to be evenhanded. The rise of social media has promoted the right to democratic expression by improving access to platforms where information may be shared and received.

“But recent attempts to control these platforms and use instruments like the archaic sedition law to muzzle dissent may be a foretaste of things to come.”

The courts ought to jealously safeguard fundamental rights, Justice Baqar stressed.

In his address, Attorney General (AGP) Khalid Jawed Khan regretted that today many invoke Article 6 with an air of casualness that tempers its severity and treat it as a mere tool against political opponents.

The AGP said provisions of the Constitution were not meant to question one another’s loyalty to the country and indict opponents for subversion.

“Much of it flows from lack of tolerance and respect for one’s opponent.”

Published in Dawn, April 5th, 2022