Pakistan’s politico-judicial history, in large parts, is a tale of calculated compromises. As admitted in numerous judgments of the honourable Supreme Court itself, Pakistan’s judiciary has (from time to time) played a blatantly controversial role in our democratic paradigm. A role that belies the promise of independence and constitutionalism. From validating military coups, to the ‘judicial assassination’ of Zulfiqar Ali Bhutto, the political make-break of the 1990s, and partisan activism of Iftikhar Chaudhary, our Courts have been active participants of the political theatre. And today, as an extension of this partisan narrative, there is a growing sentiment (perhaps incorrectly held) that members of the judiciary, at least in Punjab, either fear or favour the PML(N) government.
Being a member of the bar, this is a disconcerting narrative to reckon with and oppose. And this week, as a result of rather bewildering turn of events at the honourable Lahore High Court (LHC), it has become harder to defend the flag of judicial independence.
As widely reported, the famed Orange Line Project was challenged before the LHC, through connected Constitutional petitions, almost six months ago. These petitions raised questions concerning, inter alia, interpretation of fundamental rights, devolution, environment and the heritage laws. While such petitions are usually heard by a single Judge of the honourable Court, in light of the significance and ambit of legal questions involved, the honourable Chief Justice of the LHC referred these petitions to a special bench consisting of two honourable Judges – Mr. Justice Abid Aziz Sheikh and Mr. Justice Shahid Karim. This special bench, in January, 2016, temporarily stayed the construction of the Orange Line Project within a radius of 200 feet from 11 historical sites in Lahore.
The temporary injunction irked the leadership of PML(N), who have highlighted Orange Line as the flagship development project of their political tenure.
As a result, naturally, the incumbent government made efforts to persuade the Court to allow the construction to continue as planned. However, honourable Court did not accede to the government’s plea.
During this time, a separate (and unconnected?) petition was filed before another bench of the honourable LHC, challenging the construction of Coal Power Projects, under the umbrella of China-Pakistan Economic Corridor. This petition was dismissed by a single member bench of the Court, resulting in an appeal before a division (two-member) bench, headed by Mr. Justice Muhammad Khalid Mehmood Khan. In appeal, the Attorney-General of Pakistan appeared in person to request that a ‘larger bench’ be constituted for hearing of all cases relating to infrastructure development projects (of national importance) in Punjab.
In response to this request, as also reported in the media, the honourable Chief Justice of LHC decided to constitute a five-member (larger) bench for this purpose, headed by Mr. Justice Muhammad Khalid Mehmood Khan and including (in minority numbers) the two Judges who had been hearing the Orange Line challenge for almost six months.
Surprisingly, under this garb, the only ‘infrastructure project’ cases clubbed before this larger bench were those relating to Coal Power Projects and the Orange Line. Nothing else. Thus prompting criticism, from members of the bar and civil society, that the larger bench had been purposefully constituted so as to affect the outcome of the Orange Line case.
In an almost unprecedented demonstration of individual judicial integrity and independence, Justice Sheikh and Justice Karim – members of the original bench that had been hearing the Orange Line case – recused themselves from being a part of the larger bench. In the face of this principled recusal, and its widespread reporting in the national media, the honourable Chief Justice of LHC was compelled not to constitute the five-member bench at all, and instead allow Mr. Justice Abid Aziz Sheikh and Mr. Justice Shahid Karim to resume hearings in the Orange Line case.
Though seemingly innocuous, this episode casts a grave shadow over our judicial culture, and raises critical questions about its administrative governance. Questions that are being whispered all across our legal fraternity, even if no one dares to articulate them. Why did the government, through the Attorney General, request that the Orange Line case be heard by another ‘larger’ bench, instead of the one that has heard it for the past six months? Why did a division bench, while hearing Coal Power Plant cases, forward such a request to the Chief Justice? And even if this was done, why did the Chief Justice deem it necessary to accede to such a request? What, if any, are the ‘common questions’ of law between Coal Power Plants and the Orange Line? Is (partial) Chinese funding a sufficient reason to connect all such cases before one bench, at the arbitrary discretion of the honourable Chief Justice? If so, why not create a ‘China-Funded’ bench in the LHC, much like the Green Bench and other designated Courts? And why did this wisdom not occur during the past six months when the Orange Line case was being heard? Would a reallocation today not render the past six months of judicial hearings to be meaningless?
Is the administrative power of the honourable Chief Justice of LHC to reallocate cases, under Rule 5 and 6 of the Lahore High Court (Establishment of Benches) Rules, 1981, absolutely unfettered? Can a Judge of the High Court be arbitrarily prevented from listening to a case (even after months of hearing) through a simple transferring of the docket? If so, would that not mean that the honourable Chief Justice has the power to reassign a case, at any time, from any Judge, if the proceedings are not conducted to his or her liking? And resultantly, can this administrative power of the Provincial pater familias not be used to clip the authority and independence of other Judges, all of who enjoy the same constitutional authority? Does such arbitrarily exercise of administrative power not undermine the independence of judiciary? Does it not disempower individual judges? Can it not be used (as has been the case in our past) to sideline Judges who do not find favour with the Chief? Can it not be used to bend the arc of our jurisprudence in deference to the forces of status quo? And in a country with admittedly checkered judicial history, can this power not be used by political elites to escape the dispassionate empire of justice?
It is irrelevant how the Orange Line case is eventually decided. Justice Abid Aziz Sheikh and Justice Shahid Karim deserve much accolade for demonstrating courage and integrity in defending their constitutional authority from being abrogated under the garb of administrative power. In the past, sadly, members of our judiciary have chosen to quietly yield, in the ‘larger institutional interest’, thus undermining the entire project of justice!
Our entire judicial culture needs to take a page out of Justice Sheikh and Justice Karim’s book. For far too long, have we lived under a judicial umbrella that considers deference a virtue. For far too long as independence bowed at the altar of conformity. For far too long have forces of status quo and concepts such as ‘pater familias’ defined the narrative of our judiciary. For far too long have the contours of our jurisprudence been defined by tepid pens and malleable souls. For far too long have the bold and the brilliant lived a life of cloistered judicial virtue.
These honourable Judges have taught us all a lesson in judicial empowerment; they have reminded us that tempered or compromised justice is no justice at all. That our democracy rests its elbows on an unspoken promise that the empire of justice will remain unaffected in the face of power. That each judge as an individual, over and above the judiciary as an institution, will uphold and defend the independence of his constitutional empire. And that Justicia – the Lady Justice – will neither peak from behind the blindfold, nor tip its scales in favour of the powerful, nor restrain herself from a swing of her sword.