Reference against Chief Justice of Pakistan Justice Saqib Nisar
BEFORE THE SUPREME JUDICIAL COUNCIL,
SUPREME COURT OF PAKISTAN, ISLAMABAD
THROUGH: The Registrar,
Supreme Court of Pakistan/
Secretary Supreme Judicial Council,
MISCONDUCT WITHIN MEANING OF PARAGRAPH 3(l) OF THE SUPREME JUDICIAL COUNCIL PROCEDURE OF ENQUIRY, 2005.
The complainant seeks to submit the information of subject misconduct as follows:-
- That the complainant is serving as District & Sessions Judge in District Judiciary of Khyber Pakhtunkhwa under control of Honorable Peshawar High Court Peshawar; and he is presently posted as District & Sessions Judge, Kohat. Having benefit of a Constitutional guarantee within meaning of sub-clause (b) of clause (2) of Article 4 of the Constitution of Pakistan, and on call of his constitutional duty and obligation as citizen within meaning of Article-5 of the Constitution, the complainant has no hesitation in expression of his belief that the factual submissions next herein are prima facie sufficient to sensitize the worthy Supreme Judicial Council (SJC), for taking notice of the misconduct of Mr. Justice Mian Saqib Nisar, the Chief Justice of Pakistan (hereinafter shall be referred as “the Chief Justice”).
- That judicial activism no doubt portrays a dynamic image of the Court but its positivity or negativity depends upon agenda of the man behind it. In Pakistan’s case, the most recent history of judicial activism relates to the times of Mr. Justice Iftikhar Muhammad Chaudry, the then Chief Justice of Pakistan, which got momentum after restoration of Superior Courts Judges in result of successful Lawyers’ Movement (2007-2009). The said movement got unprecedented support of people of Pakistan on the promise to bring rule of law in the country. So, activism of those times was the result of judicial power based on public legitimacy as claimed in a book titled “The Politics and Jurisprudence of the Chaudry Court (2005-2013)” published in Pakistan in 2015 by Ameena Saiyid of the Oxford University Press. In the said book at page 94, with quoting of Mr. Justice Asif Saeed Khan Khosa, a passage from his judgment in Suo MotoCase No. 4 of 2010 (PLD 2012 SC 553, 609) has been copied which is further copied herein below:-
“A page from our own recent history reminds us that the Chief Justice of Pakistan did not possess or control any division when he refused to obey the unconstitutional dictates of General Pervez Musharraf, who commanded quite a few divisions, and still emerged victorious with the help of the people. The lesson to be learnt is that if the cause is constitutional and just then the strength and support for the same is received from the people at large who are the ultimate custodians of the Constitution. I am not too sure as to how many divisions would a population of over 180 million make.”
- There is no denial of the fact proudly depicted by the Honorable Judge in the paragraph cited from his judgment. What was the promise with people and their expectation from the Judiciary; copy a page found through browsing of Internet archives is annexed herewith.
- Of course, the page of history cited by the Honorable Judge will keep telling us that a great opportunity had come to credit of Pakistan’s Judiciary with unprecedented public support but when we turn the next page of the same history, it tells us that instead of benefiting from such a great opportunity through collective wisdom of the superior judiciary, it was exploited by one man for his personal aggrandizement in utter violation of the Code of Conduct to be observed by him as the Chief Justice of Pakistan. The judicial activism which got momentum after restoration of Mr. Justice Iftikhar Muhammad Chaudry to his office in 2009 was misdirected from the promise which captured people’s attention emotionally engaging them in successful movement and at end of Mr. Justice Chaudry’s times in 2013; people saw no change in terms of poetically made promises.
- That the history of human egotism is self-speaking that woman, money and land/property have ever remained as cause of conflicts between human beings on the earth, and will remain as long as the earth and man on it exist. Majority of the fundamental rights enshrined by the Constitution of Pakistan revolve around all the said three factors. It is universally accepted phenomenon that panacea for muting conflicts of given kind lies in vibrant judicial system where people go to get their disputes judiciously settled. The lack or insufficiency of health and other facilities never engaged the human being in wars but factors enumerated herein did. If we go through data of today’s litigation in our courts, it will become evident that people in our homeland are overwhelmingly engaged in litigation on account of conflicts emanating from said three factors but their grievances are piling up day by day due to ineffectiveness of courts to deliver.
- The legislature performed its duty by adding Article 10-A in the Constitution of Pakistan making the fair trial and due process as fundamental right of citizens. The National Judicial Policy 2009 though was devised to ensure efficient disposal of judicial business by the courts but it failed in the courts from top to bottom due to obvious reasons. There was already built in delays in the Judicial System but it stood aggravated due to Mr. Chaudry’s joining of hands in politics with those who were mainly responsible for keeping the courts at their routine from top to bottom in utter rejection of the NJP 2009. The National Judicial Policy Making Committee, a body utterly inconsistent with basic structure of the Constitution despite getting all limelight could do nothing to ensure inexpensive and expeditious justice, despite having credit of Article 202 of the Constitution read with Part-X of the Code of Civil Procedure, 1908. Nothing was got done in term of said rules making powers of the High Courts. The main reason of this failure is obvious. Mr. Justice Chaudry was so imbued with ambitions of personal aggrandizement that he wanted to emanate everything from his ways lest it meant to compromise the law or even the constitutional provisions. It was due to this expedition of Mr. Justice Chaudry that it eclipsed the very image of the Supreme Court of Pakistan taking its recognition by the constitutional name with replacement as “The Chaudry Court” in colloquial sense. Mr. Justice Chaudry without bothering about failure of National Judicial Policy kept on playing politics through his Suo Moto Noticesin his times at the Court exploiting the public support behind his judicial power, which actually was got on solemn promises. It was because of forgetting his promises to people that when he went from the Court, the public support to the judicial power of the Supreme Court of Pakistan had also gone leaving the people with belief that they were befooled on a hollow hope.
- May be misled by the gone history of public legitimacy of judicial power, the sitting Chief Justice of Pakistan embarked upon the judicial activism unfortunately not for the social changes or fulfillment of forgotten promises but for the political changes in the Country with underlying aim for installation of government apparently through free and fair future elections conducted with his shared control. He himself is on record in this respect through one of his interviews.
- That what is markedly different; people in case of activism of Mr. Justice Chaudry were morally bound to support it yet on hollow hope, in honor of their engagement in the movement of his restoration in office as the Chief Justice of Pakistan, which is not the case now. That is why, when the incumbent Chief Justice of Pakistan realized the absence of public support behind his actions; he himself came to the public face moving from one pillar to the other. He in his public discourses at different public forums could not exhibit a conduct to be above reproach within parameters of Article III of the Code of Conduct which he is bound to observe under oath of his office. Among so many instances of public criticism of his conduct, the most pertinent includes his ridiculing with the name “Baba Rehmatay” put in people’s mouth by none else but by him alone while defending his judgment in a political case, at a public forum. Besides criticism of judiciary by politicians at floor of the parliament, public speech of Nihal Hashimi in Rawalpindi aired by electronic media was drastically mocking and attacking on the Chief Justice and institution of judiciary, which even moved the former and he put Mr. Hashimi at notice of another contempt of Court in addition to the one regarding which his appeal against conviction was pending. It is lack of the public support that the Chief Justice resorted to contempt of court proceedings against so many contemnors but selectively not daring to embark upon contempt of court proceedings against the main contemnor engaged in organized movement making a case notionally as “Awami Adalat Vs. Supreme Court of Pakistan”. An impression is inevitable that the Chief Justice might have spared his erstwhile benefactor lacking ability to earn the public support in favor of his action against him. So, the complainant believes that the entire judiciary from top to bottom stands caught in a pot of glue by unwise moves of the Chief Justice, who himself is morally so weak that he even cannot stand to his own spoken words and almost on everyday coming up with clarifications by swearing to God. The negative criticism of his and of the Honorable Judges who heard the Panama Case and passed judgment in it is still publically ongoing but he is unable to control it either by logic or by contempt of Court proceedings.
- The ambitions of the Chief Justice for self-aggrandizement are no more a secret because it is evident from unrestricted engagement of electronic, print and social media in propagation of his remarks at the Bench and his public activities out of Court, both favorably and unfavorably. It is often that media reports about his remarks and public activities stir controversy and clarifications come from himself or from the Registrar Office but without any action against the reporters twisting his remarks. His unwarranted pursuit of self-aggrandizement with the office of Chief Justice of Pakistan on one hand is eroding the impression about unity of the honorable judges of Supreme Court of Pakistan as one judge in the matters of public importance, and on the other hand he is exhibiting a conduct of self-indulgence tantamount to greed of fame though an intangible interest but more fatal than the tangible in expressions of poetry:
اِک زہر بھرا ناگ ہے شہرت کا جنوں بھی
ڈس جائے یہ موذی تو سمبھلنےنہیں دیتا
- The pursuit of Mr. Justice Chaudry with sheer urge of self-indulgence was not checked by the SJC and the entire judiciary is still facing the consequences. The instances of consequences falling at the District Judiciary are heart-burning. The complainant does not lack the justification in his respectful submission for those judges of the Supreme Court of Pakistan, particularly those making part of SJC at times of Mr. Justice Chaudry that they compromised at their independence by ignoring unbecoming conduct of Mr. Justice Chaudry as a judge.
- The Chief Justice with his present-day conduct has exposed himself that he lacks most of qualities of a judge enumerated in Article-II of the Code of Conduct issued by the SCJ in 2009. It is because of his failure to show a conduct compatible with requirements of said Article of the Code of Conduct, and non-compliance to prohibitory provisions of the said Code that the Peshawar High Court Bar Association in its general body meeting held on 27.03.2018 with particular reference as to his conduct passed a resolution with unanimous approval of house setting out the following demands:-
- All the institutions and persons responsible to represent them must remain in the respective limits prescribed by the Constitution. Any violation by any person must be brought to books in order to protect and preserve the Constitution, for which the Pakistan Bar Council is urgently requested to take immediate and appropriate steps.
- The lawyers Community of Khyber Pakhtunkwa expresses serious concerns and strongly resents the treatment meted-out to the Honorable Judges of Supreme Court belonging to the smaller provinces. In case the hearing of proceedings in a dead case against Justice Qazi Faiz Essa of the Supreme Court are not immediately stopped, the lawyers community of KP after coordination with the lawyers from all the provinces and all other lawyers bodies will go to the streets.
- The lawyer’s community also calls upon the KP Bar Council, Pakistan Bar Council, Baluchistan, Sindh and Punjab Bar Councils to immediately coordinate and convene an all Pakistan Lawyers Conference at the earliest so as to chalk future course of action.
- The lawyers of Peshawar High Court Bar Association will arrange a grand convention for welcoming Honourable Justice Dost Muhammad Khan in Peshawar High Court premises.
- The lawyer’s community will work to develop strong bonds amongst the provinces for supremacy of law and constitution in order to strengthen the Federation.
- The resentment of Lawyers bodies from Quetta and Karachi has also been publicly reported as newsworthy information.
- That the Chief Justice by appearing injudicious and reckless in his remarks and then failing to stand by them without explanations has proved absence of rationality in his speaking conduct. The Supreme Court of Pakistan in worldly sense is the ultimate hope of people of Pakistan for the sake of justice. The Chief Justice heading this ultimate forum of hope of people is not supposed to be irresponsible in his speaking conduct. If he makes a show of going against the prescribed conduct, flaunting his unconventional ideas and unorthodox ways, people will think that he only wants attention. Such irrationality on his part makes his conduct as unbecoming of a good judge.
- That the Chief Justice while heading a Bench to hear the Suo Moto case of drug prices swore to God that he had no political agenda but he simultaneously disclosed his desire that what he would like or want is the supply of unpolluted consuming water, primary wellbeing amenities and meals to the individuals of Pakistan. If he had no political ambitions, he instead of desiring things for people of Pakistan which are not his domain to ensure, should have thought about the failing of judicial system mainly due to ineffectiveness of the courts’ inability in providing justice in context of Article 10-A read with clause (d) of Article 37 of the Constitution of Pakistan, as it is generally believed by people that courts are unable to dispense justice in context of constitutional requirements. While going all-out at blaming the Executive on their failures, he remains oblivious of the fact that his oath of the office enjoins a duty to abide by the Code of Conduct issued by the Supreme Judicial Council, which includes Article X requiring a particular level of performance by judges of Superior Courts. Without caring for the failure in ensuring expeditious justice to people, he has virtually announced his political agenda through a widely published interview on 19thMarch, 2018 with Journalist-cum-Anchorperson Mr. Javed Chaudry, hinting at taking over the functions of other constitutional bodies.
- That the Chief Justice very unwisely dismisses the blame of his having any political agenda but his conduct speaks otherwise. Recently, he held a meeting with the Prime Minister of Pakistan in his chamber without disclosing the agenda. If he claims himself as custodian of Constitution of Pakistan, he should have had regard to article 19-A of the Constitution which guarantees right of citizens to have access to information in a matter of public importance. Non-disclosing of agenda of his meeting with the Prime Minister on one hand violates said fundamental rights of citizens and on the other hand the hidden agenda of the meeting has become instrumental for a blame against him that he is likely to play a role for settlement of things between the Establishment and the Sharif family. Having come under pressure of rival public opinion, he in a bid to dilute the wrong impression for want of known agenda was reported to have made some remarks about his meeting with the Prime Minister which also bounced back and triggered another public controversy giving rise to an explanation from the Court through Registrar office. It is axiomatically said that words put a person on the defensive. The denial of the Chief Justice and explanation of Supreme Court Registrar is being taken as weakness of Chief Justice by many in the country.
- That it is there in Article-V of the Code of Conduct that functioning as he does in full view of the public, a Judge gets thereby all the publicity that is good for him. He should not seek more. The same Article particularly requires of a Judge that he should not engage in any public controversy, least of all on a political question, notwithstanding that it involves a question of law. There is a lot of evidence against the Chief Justice of Pakistan that he has literally failed to abide by the Code of Conduct as required to be observed within meaning of Article-V. The Chief Justice by his failure to observe the Code of Conduct has engaged his person as well as the Supreme Court of Pakistan in public controversy having nexus with the political questions.
- That the complaint believes that the Chief Justice by his reckless, injudicious and random remarks at the Bench in the matters of public importance, by indulging in serious controversies with the politicians, on having irresistible urge of public fame at cost of lowering the dignity of Judiciary, on having political agenda with unwarranted desires of encroachment in domain of other constitutional bodies has lost a conduct befitting to requirements of the Code of Conduct-2009 issued by the SCJ; and in turn he has become guilty of misconduct warranting inquiry within meaning of Clause (5) of the Article 209 of the Constitution of Pakistan.
- That the complainant, in his belief about misconduct of the Chief Justice, is fortified by the newsworthy information disseminated by electronic and print media, social media, and other sources, which he (complainant) will indicate in due course of time for collection in evidence under authority of the Council within meaning of Article 210 of the Constitution of Pakistan.
With the foregoing submissions, the complaint seeks to invoke constitutional jurisdiction of Supreme Judicial Council for inquiry into the following questions:-
- Whether the Chief Justice as head of National Judicial Policy Making Committee, since his taking oath of the office of Chief Justice of Pakistan, has given a vision for exercise of rulemaking powers of the High Court within meaning of Article, 202 of the Constitution read with Part-X of Code of Civil Procedure, 1908? If not, whether the Chief Justice has discharged his responsibility on behalf of Judiciary as an organ of State to ensure inexpensive and expeditious justice in compliance with Article 29 read with Article 37 (d) of the Constitution of Pakistan?
- Whether Chief Justice has given a vision to ensure effectiveness of Criminal Justice System in line with Article 10-A read with Article 37(d) of the Constitution?
- Whether the Chief Justice, without proving about discharge of his constitutional responsibility in terms of concrete steps in relation to Articles 10-A & 29 read with Article 37 (d) of the Constitution of Pakistan, has got any moral justification to assert that he will make the politicians and bureaucracy to deliver lest he has to stage a sit-in?
- Whether Chief Justice is pursuing a political agenda on his having joined hands with the Establishment which has notionally been defined by Stephen Phillip Cohen the author of the book titled ‘The Idea Of Pakistan’ as: “an informal political system that ties together the senior ranks of the military, the civil service, key members of the judiciary and other elites”.
- Whether the Chief Justice is imbued with irresistible urge of personal aggrandizement?
- Whether the Chief Justice is self-possessed and truthful in his speeches in public, interviews to journalists and in his side-line remarks in course of hearings at the Bench; and his self-protective line with subsequent clarifications offered by swearing to God is insignificant?
- Whether the Chief Justice has, by his conduct, brought a rift within the Supreme Court of Pakistan and thereby eroded its public impression as unity of one judge in matters of public importance?
- When political tensions at national level are consequence of judicial activism lead by the Chief Justice; and with such tensions at their height, whether Chief Justice without known agenda was justified to meet the Prime Minister of Pakistan in his Chamber?
- Whether the manner adopted by the Chief Justice disclosing his practical contact with Rao Anwar an accused of murder befits to his conduct becoming of Chief Justice of Pakistan? (Practical means that Chief Justice disclosed his letters and by his meaningful remarks from the Bench gave him messages.)
- Whether friendly and elitist treatment extended to Rao Anwar an accused, on part of Chief Justice is justifiable by his oath of office or by any norm of the Code of Conduct to be observed by him under oath of his office?
- Whether the act of Chief Justice procuring assembly of judges of special courts from all over Pakistan with presence of Chief Justices of High Courts was a wise step and what he spoke to them was befitting to dignity of courts?
- Whether the Chief Justice was right in being selective in contempt of court proceedings fixing the proxies and sparing their leader without valid reason?
- Whether Chief Justice is abstemious, truthful of tongue, wise in opinion, cautious and forbearing, blameless, and untouched by greed?
- Whether the public criticism of Judiciary in ongoing scenario is result of irresponsible conduct of the Chief Justice?
- Whether the Chief Justice has been guilty of misconduct within meaning of PARAGRAPH 3(l) OF THE SUPREME JUDICIAL COUNCIL PROCEDURE OF ENQUIRY, 2005, necessitating action against him under Clause (6) of Article 209 of the Constitution of Pakistan?
While hoping for proactive treatment in the matter of this complaint; let the complainant conclude with the prayer for our motherland:-
امن ملے تیرے بچوں کو اور انصاف ملے
دودھ ملے چاندی سا پانی اُجلا صاف ملے
Dated: 03.04.2018 Ahmed Sultan Tareen
Son of Suba Khan
R/O Chhohar Sharif
Tehsil & District Haripur.
CNIC # 13302-0450955-5
Cell # 0333-9434837
Note: Copies of this memorandum of complaint are being sent to all the Honorable Judges of Supreme Court of Pakistan, the Chief Justices of High Courts, and Offices of Bar Councils and selective Bar Associations.