There is serious concern about the conduct of the judiciary in Pakistan. In a country where all manner of informal justice mechanisms, based on tribal and religious norms dispense arbitrary and discriminatory justice, the citizenry looks towards the formal justice system, to not only adjudicate matters on the basis of rational-legal canons of law, but also to appear to be non-discriminatory and non-partisan in their conduct and uphold the pristine principles of equality of all before the law and presumption of innocence until proven guilty.
Statements emanating from Honourable Justices, either during the conduct of formal hearings or while addressing public fora, negate the above mentioned pre-requisites of conduct expected from those entrusted with dispensing formal justice. Particularly unbecoming have been statements made by the Chief Justice of the Lahore High Court. In one instance he stated that: Former Dictator General (Retd.) Parvez Musharraf, should be executed through hanging in a street square for the alleged crimes committed by him.
On another occasion he was reported to have implied that since President Zardari is the main beneficiary of Benazir Bhuttos death and that his involvement in her murder is possible. Apart from the fact that such partisan and presumptive remarks are unbecoming of a person holding as exalted an office as the Chief Justice of a High Court but it also creates an instance of bias exhibited by someone who can not only be called upon the adjudicate the above matters but also has the power to appoint the benches that may hear the above cases.
Similarly the Chief Justice of the Supreme Court and other senior judges make remarks during the course of hearings that reveal their thinking and their bias to the public and before the actual judgments are announced. Particular note is taken of two particular instances as reported in the press. During the hearing of the case on the National Reconciliation Ordinance (NRO), the Chief Justice and other judges are reported to have made remarks about getting money back from looters and plunderers who had stolen national wealth. The NRO was applicable to those who were accused of but not convicted of their crimes. As such the universal and basic principle of presumption of innocence is expected to be adhered to by the highest ranking adjudicators of the country. Moreover, the excessive emphasis on and remarks made by the Justices on corruption cases to the exclusion of a much larger number of criminal charges of murder, rape and kidnappings that came under the purview of the NRO exhibited a bias against the political class.
The other concern is that, whereas tens of thousands of cases pertaining to human rights abuse are pending in courts, the higher judiciary has tended to take up popular and high profile political cases in order of precedence. The tendency to take the populist road rather than the judicious one is yet another instance where the conduct of the judiciary is questioned.
If the higher judiciary restored through a long and arduous struggle is to sustain itself as the supreme arbiter and dispenser of justice without fear or favour, it will have to shun the temptation to play to the gallery and should only speak through carefully calibrated judgments based on legal logic and reasoning. Otherwise, like all other institutions in Pakistan, the judiciary will also come to resemble a partisan, prejudicial and arbitrary institution. The consequences of this destruction of the institution are self evident.