Rizwan Ghani
THE timing of transfer of FBR head shows mala-fide intention (The malicious intention to be dishonest or to violate the law). It would be better for the government to scrap the posting order and return the chairperson to her post to end speculation of mala fide intentions on its part to influence the case of Justice Faez Isa. Legal experts including Aitzaz Ashan are giving their opinion in which it is being said that short order is in fact detailed order. Nothing new will come in detailed order. It may be a very learned argument but it has no legal value because interpretation of law is only the prerogative of the judges not the lawyers. Otherwise, all lawyers and public would become courts giving their own judgments. Only is judiciary has the right to interpret law and decision are open for public comments. The detailed judgment is going to deal with mala fide intentions which is crux of the case to determine if government had mala fide intentions against a sitting Supreme Court Judge. Mala fide can be interpreted as conservative (text of law) or progressive (as per situation). If Bench determines that presidential reference against Justice Isa was based on mala fide intention then all involved will have to go home. It could mean President, PM, Law Minister and Special Asst to PM on Accountability & Interior Minister of State.
That is why the posting of FBR head, ahead of 19 July last date for filing of appeal, has opened window for progressive interpretation of law to deal with mala fide when text of law is being used to protect the malicious intention of presidential reference despite the fact that its foul stench is undermining the scent of purity of law like the perfume of fresh cut grass. In simple words action of government has justified progressive interpretation of law to punish it in this case and end its use in future. Thus detailed judgment could explain mala fide in a way that could be landmark decision to protect independence of judiciary. As far as notice to Justice Isa’ family is concerned, the law gives them legal right to reply in 30 days (that is until July 19, 2020). As per law, there is additional two-week provision to file the reply. There are 17 parties who have the legal right to ask for the extension and as per the law they cannot be denied their right just like any other citizen of Pakistan. So we all will have to respect the choice made by the parties and see how law takes its course in due course.
The impression is being developed in the media as if judiciary and establishment are on confrontation course. It is totally wrong. Judge Arshad Malik’s case has shown that judiciary is exercising self accountability despite being a very high stake case. But instead of appreciating judiciary’s effort to uphold law against their colleagues, anchors in media are proposing that politicians should select and promote judges. It is against the independence of judiciary, public and state interests. US senate has confirmed 200 judges (more than 22% of total judges) appointed by Trump. It has left the country in total chaos because these Republican politically elected judges will continue for life and experts believe that for next three decades nation will face the consequences of political appointments. The politicization of judiciary has turned America into corporate mafia exploiting public, divide nation over police reforms and left judiciary toothless to give single decision on 200,000 cases registered against the police.
Our shameless politicians and their media supporters want to further politicize our judiciary on lines of US. They are ashamed by the suo moto notices, publication of inquiry reports like sugar, ata, petrol, etc and loot and plunder hidden overseas. Our judiciary has sent home its judge but not a single high police official has been punished and removed from the duty but no politician is ready to stand up against the endemic police corruption. Police budget in all provinces is more than agri budget, dams, Naya Pakistan housing scheme and what not. The media campaign against judiciary and establishment is an effort by the politicians to permanently control judiciary with police. It is hoped that sense will prevail at all levels to uphold system of check and balance under trichotomy of power in parliamentary form of democracy. The Establishment should support the State institutions as part of their constitutional duty so that political system delivers for the public in which weak is protected against the strong. If that is threatened, it is duty of every state institution to protect it even if it involves removal of PM for sending presidential reference on mala fide intentions and uphold law in case of other violators including the family of the judge.
—The writer is a freelance columnist.
