KARACHI: Former judge of the Supreme Court Justice Maqbool Baqar on Sunday said that the flawed process of induction and elevation of the apex court judges was one of the factors responsible for repeated failures of the judiciary to uphold the Constitution.

He was speaking at a seminar organised to celebrate 1973 Constitution at the auditorium of the Sindh Assembly. Pakistan Peoples Party chairman Bilawal Bhutto-Zardari, Sindh Chief Minister Murad Ali Shah were among speakers.

Justice Baqar, who had also served as the chief justice of the Sindh High Court and was one of the judges who refused to take an oath under the Provisional Constitution Order (PCO), also spoke about what he called a common perception that inductions and elevations in the superior judiciary were based on favouritism and nepotism. He said that the Constitution reflected the desire that the country be run by a popularly elected government that adhered to the fundamental law.

He said that the Constitution, achieved after years of disillusionment and failures, was indeed one of the greatest achievements of former prime minister Zulfikar Ali Bhutto.

Justice Baqar said that the principle of trichotomy of power and the concept of devolution had been trampled with contempt. “We have come to this unfortunate pass, in most part, because of the repeated direct unconstitutional interventions and manipulations by undemocratic forces,” he added.

Reflecting upon the judiciary’s role in the constitutional history, he said that it took us nine years after independence to adopt our first constitution in 1956.

Former SC judge Maqbool Baqar blames repeated failures of judiciary to uphold Constitution for country’s economic, social ills

“It could survive for only two years when the first martial law was imposed,” he said, adding that repeated military interventions had retarded the evolution of democracy in the country.

He said that the decision of the Federal Court in Maulvi Tamizuddin Khan case to uphold dissolution of assemblies was perceived as the first step down the slippery slope of judicial acquiescence in executive excesses.

“Two years later, the 1956 constitution was abrogated and martial law was imposed,” he said and added that the judiciary further tarnished its image by supporting this step.

He recalled that Gen Zia Ul Haq’s martial law, imposed in 1977, was also validated by a five-member Supreme Court bench. “A perverse machination by way of ‘doctrine of necessity’ was deployed by the court in both cases,” he added.

Justice Baqar said that although Governor General Ghulam Muhammad was declared to have no authority to innovate constitutional provisions, General Zia was authorised to amend the constitution.

“The public’s confidence was further shaken by the judicial murder of prime minister Bhutto, where the chief justice of the Lahore High Court, bent upon conviction, dismissed all applications seeking his recusal on grounds of bias,” he said.

He said that repeating its history, the Supreme Court also upheld Gen Musharraf’s martial law and authorised him to amend the constitution.

He said that the glaring inconsistency in deciding the two cases filed against the dissolutions of assembly during the tenures of former prime ministers Benazir Bhutto and Nawaz Sharif, respectively, had raised many eyebrows.

“Repeated failures of the judiciary to uphold the constitution and protect democracy have played their part in the country’s current political, economic and social woes,” he said.

He said that among various factors responsible for this performance was the flawed process of induction and elevation of superior court judges, which suffers from lack of transparency and objectivity. “It is now common perception that inductions and elevations are based on favouritism and nepotism,” he added.

He said that despite strong and repeated demands from the bar, civil society and majority of the members of the Judicial Commission for defining criteria for judicial appointments, no effort has been made in that direction.

“Nor is a plausible reason or justification given when senior judges, despite their impeccable records, are superseded by their juniors,” he deplored.

Justice Baqar said that composition of benches and assignment of cases of national significance to a select few, whose judgements as well as conduct were being widely questioned, was also eroding the independence and legitimacy of the judiciary. “Judicial overreach, rewriting of statutes and reading into the constitution is another matter of great concern,” he added.

Senior lawyer Rasheed A Razvi said that the Pakistan Peoples Party had two big achievements to its credit — the 1973 Constitution and the 18th Amendment.

He said that there were over 100 amendments in the 18th Amendment that removed many illegal provisions incorporated in the Constitution.

Mr Razvi said that the Supreme Judicial Council (SJC) had failed to keep a check and balance on the appointment and performance of the judges.

He urged that the decisions taken by the SJC should be made public.

PPP-Sindh President Senator Nisar Ahmed Khurho said that the country’ Constitution was attacked by dictators many a times.

He said that Gen Zia introduced Article 58-2 B which was used to dissolve the elected assemblies. He said that the Constitution was actually an agreement between government and people and it should be respected. “Protect Constitution if you want to protect Pakistan,” he added.

Also spoke on the occasion included former chief minister Qaim Ali Shah and Yusuf Leghari.

Published in Dawn, February 27th, 2023