‘Unannounced war between self-serving powerful elite centers, will of people has defined much of our national tragedy’
Athar Minallah, Supreme Court Judge. PHOTO: FILE
ISLAMABAD:
Supreme Court judge Athar Minallah has urged Chief Justice of Pakistan (CJP) Yahya Afridi to convene a judicial conference for an open institutional dialogue on threats to independence of judiciary and its constitutional function as a machinery for enforcement of fundamental rights of citizens.
The SC judge has proposed that all judges of the Supreme Court and the high courts should be invited for a candid and open discussion on the state of judiciary, the challenges to its independence and the steps necessary to reclaim the peoples’ trust on it.
In the 7-page letter dated October 8 and titled “Moment of Reckoning”, Justice Minallah noted that the judiciary as an institution is at a perilous crossroad and silence in the face of the systemic erosion of judicial independence would only amount to complicity.
The apex court judge presented an overview of the chequered history of the top court which he said has too often bowed before might and power instead of standing on the side of the people. “This recurring, unannounced war between the self-serving powerful elite centers and the will of the people has defined much of our national tragedy,” he stated.
He lamented that it took forty long years for the judges of the Supreme Court to publicly acknowledge that the court was complicit in the judicial murder of a popular leader, Zulfiqar Ali Bhutto, and more gravely, in the suppression of the will of the people itself.
“Yet, acknowledgement, though necessary, was little more than the admission of shame. It was not enough to wash away the crimes hidden beneath the white marbled walls of this temple of justice.
“No apology was ever offered to the people whose faith was violated, nor repentance shown for being instruments of oppression against their representatives.
“Not a single judge has ever been held accountable for suppressing the will of the people, not even those who sent a human being to the gallows simply because it was demanded by a uniformed dictator,” he said.
Talking with reference to continual persecution of political leadersfrom Benazir Bhutto and Asif Ali Zardari to Nawaz Sharif, Shehbaz Sharif and Imran Khamthe judge lamented that justice is denied to them all.
“Would the victims of today be justified in perceiving the courts as enablers of oppression? The same tragic script once inflicted upon the leaders of the other political parties at various times in the past is being replayed.
“Must we wait another forty years for the judiciary to acknowledge its complicity in denying justice to the will of the people of today?
“It is precisely because the judiciary has been historically captured and continues to serve as a guardian of the power elite rather than as guardian of the Constitution and the peoples’ sovereign will,” he said.
According to the SC judge, the truth is known to all judges but it is whispered only in the tea room and court chambers. The independence of this institution, he said, has too often been compromised from within, whether through surrender or through active participation.
Justice Minallah referred to the transfer of judges from other courts to the Islamabad High Court (IHC) as its “dismantling”, describing it as a classic example of punishing a court that had earned the confidence and trust of the people across the country.
He said the IHC’s only crime was that it had earned the trust of the people and the ire of the unelected powerful elite centres.
He said “the truth” with regard to the executive’s interference in judicial matters as recorded by “six courageous” IHC judges through a letter and later affirmed by fearless judges of other high courts during a judicial proceeding was an opportunity for redemption of the wrongs committed by the SC.
“Regrettably, the Supreme Court chose to stand beside the forces that had attacked the independence of a constitutional court trusted by the people, so much so that the minutes of two full court meetings, for obvious reasons, remained concealed from public view.
“We proclaim ourselves to be guardians of the fundamental rights, but we maintained silence when a former CJP told us that the phenomenon of enforced disappearance had reached his doorsteps.
“We also chose to look the other way when another CJP…warned twelve judges of this very court that he was the one responsible for stalling the imposition of martial law and that ‘they would come and send us home’.”
Justice Minallah clarified that his intention in recalling the past was not to criticize nor assign blame but to remind ourselves of the painful truth that a captured judiciary has always stood with those who have suppressed the will of the nation instead of standing for the rights of the people.
Referring to the proposed 27th Constitutional Amendment, which among other things also seeks formation of a Federal Constitutional Court, the judge stated that the judiciary is at a perilous crossroad and the truth must be spoken at this moment of reckoning.
He said at this critical juncture, it is imperative that the judges as custodians of the rights of the people collectively strive to restore the trust and confidence of the people in the judiciary.
“We have to reaffirm our commitment to the sovereignty of the people rather than the centres of power. The strength and legitimacy of our institution is rooted in its independence.
“It is the onerous duty of the representatives of the people to strengthen the independence of the judiciary and not to subvert it through capture of the courts,” he added.
