A plea for restraint
Mohammad Jamil


The respect the higher judiciary enjoys in Pakistan today is well-deserved and well-earned as a result of the struggle waged by the lawyers, members of the civil society and activists of political parties. And it should be our endeavour to protect, maintain and sustain that honour and respect. There is no denying that with Chief Justice Iftikhar Muhammad’s courage of challenging the executive’s controversial order to suspend him, a new chapter in the evolution of country’s judicial system was written. On one hand, public trust and confidence in the judiciary has been restored and enhanced, and on the other public expectations of the system of administration of justice have increased. However, in scholarly debates in TV programmes and in the articles published in the newspapers some analysts including some of the stalwarts of movement for restoration of judges are of the view that the judges should be careful in their observations and remarks, and only their judgments should speak.

After years of military dispensation, elections were held in February 2008, and elected governments were installed. Since then the pillars of the state are inclined to exact the powers beyond what is enshrined in the Constitution. There is confrontation between the Parliament and the Judiciary, which will not bode well for the country. Meanwhile, media have assumed the position of fourth pillar of the state, and become obstreperous. Day in and day out, one finds insinuations against the military and intelligence agencies especially in English newspapers. In Saturday’s editorial of English daily, the leader writer has unnecessarily criticized the Army chief’s brief remarks and unleashed a barrage of insinuations. Among other adverse comments he wrote: “Before flying off to Moscow, General Pervez Kayani said the army would support any solution to the Balochistan crisis provided it was within the constitution…We hope that the generals have learnt their lesson and stay well within the limits of the constitution.”

Pillars of the state and institutions should act according to the dictates of the Constitution, and show respect to each other; lest they all would lose respect in public eye. Sometimes the tone and tenor of Attorney General smacks of lack of respect for the court; he should therefore be careful about his language during the court appearances. Judges on their part should also avoid remarks that tend to inflame the litigants, as they retaliate by denigrating judges in their press conferences.

There is a perception that court’s remarks such as ‘for every third missing person the fingers are raised towards the Frontier Constabulary’ could create ill will between the institutions. Last week, Supreme Court Chief Justice Iftikhar Muhammad resumed the hearing on a petition filed on the law and order situation in Balochistan, during which Baloch nationalist leader Sardar Akhtar Mengal made submissions including his six points. The chief justice said in his remarks that the missing persons would be recovered and that the court would go to any extent, if needed, to achieve the purpose.

According to an English daily, Chief Justice of Pakistan in his concluding remarks said that the ‘death squads’ of ISI and MI agencies should be abolished, which have been construed as CJ’s agreement with the stance taken by Sardar Akhtar Mengal. Again apart from the whispering campaign some analysts are of the view that this could provide an opportunity to the UN for intervention, as recently there was a UN delegation to see for itself the situation in Balochistan. Our judiciary should take cognizance of the fact that nationalist or dissident Baloch sardars do not want to hold negotiations with the government on the grounds that they have no powers. And they are not inclined to talk to the military, as they consider them responsible for all the woes and problems they are facing. Nearly a week after he chaired a Congressional hearing on Balochistan, US Congressman Dana Rohrabacher had introduced a resolution in the US House of Representatives on 17th February 2012 calling upon Pakistan to recognise the Baloch right to self-determination.

As regards missing persons’ case, no agency has the right to detain anyone without due process of law, and nobody would condone killing of Baloch nationalists. But killing of Punjabi settlers is no lesser horrific. They too have human rights that do not cease to exist simply because they are not Balochs but Punjabi-speaking and Pashtuns. However there was not a word of compassion for them, even as scores have been killed, many more wounded, and a lot more driven out of their hearths and homes with intimidation and terror, who had to settle in other parts of Pakistan. Though media in general subscribes to the views expressed by Akhtar Mengal, there are voices that the apex court focuses on missing persons and dead bodies of Baloch dissidents only, and no questions have been asked from Akhtar Mengal about killings of Punjabis and Pakhtuns. Such propaganda is tarnishing the image of the judiciary.

In many countries, efforts are made to create a balance in the powers through clauses enshrined in the Constitution. The concept of a judge acting as a referee or umpire in the political game has been used throughout American jurisprudence, but was made famous by Chief Justice John Roberts during his confirmation hearings for the Supreme Court. Roberts said: “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.” Suo motu is the buzzword in Pakistani public discourse post 2008 lawyers’ movement and the subsequent ‘independence’ of judiciary. Gerhard Casper, professor of law and political science and former President Emeritus of Stanford University, in an interview said: “If the judges care about judicial authority and genuine respect in the long run, they should observe extraordinary self-restraint, not just in the courtroom, but also with respect to their extrajudicial statements and speeches”, Casper added.