SUPERIOR JUDGES’ COMMITMENT TO JUDICIAL INDEPENDENCE IN PAKISTAN

1Amanullah Shah, 1Muhammad Iqbal Khan, 2Mobina Mahsood 1Law College, Gomal University, Dera Ismail Khan(KPK) Pakistan 2Lower Courts , Dera Ismail Khan(KPK) Pakistan

ABSTRACT Independence of judiciary cannot depend solely on the structure of the government and the judiciary’s formal role within it. It also depends on the judges themselves. This paper aims at examining the judicial commitment to independence of judiciary in Pakistan. This study covers collective role as well as individual role of the judges of the superior courts in Pakistan from 1947 till the restoration of Judges in March 2009. It elaborates the importance of integrity and character of the individual judges for judicial independence. This paper critically studies the role of those judges who by their behaviour undermined the independence of the judiciary and severely damaged the confidence of the public in the judiciary of Pakistan.

INTRODUCTION corruption and to make truly Independence of judiciary does not mean independent decisions. Prof. Dam has merely independence from outside rightly referred to the British influences but also from those within. A constitutional system, in support of his former justice of India, Mr. Verma, is of view that behavioral independence is the opinion that dangers to judiciary more important and more effective than from within have much larger and structural independence in the context of greater potential to harm than dangers independence of judiciary (Dam, 2006). from outside (Verma, 2000). Professor The British judiciary has not Dam differentiates between structural traditionally been structurally independence and behavioral independent is shown by the independence. The latter is more intermingling of judicial, executive and important than the former (Dam, 2006). legislative functions at the highest level. The former term as used here, refers to Until the Constitutional Reform Act the way in which government is 2005 was passed, the Law Lords who constitutionally structured. Does that formed the Highest Appellate Court in structure secure independence of the British Judiciary also sat in the judiciary? Behavioral independence House of Lords – the upper house of the resides in the judge as a person. Is the British Parliament. More amazing was judge independent? An independent the position of Lord Chancellor, who judge is not just dispassionate and free presided over the Law Lords as well as from bias, but willing to take difficult the House of Lords and was a member of position to resist political or any external the cabinet also at the same time. The pressure, to reject any temptation of Law Lords transferred to the newly

Gomal University Journal of Research, 27(2). December, 2011 55 Shah et al., Superior Judges Commitment created Supreme Court in 2009 under the removed by the military government in Reform Act 2005. That is why it is said 1977. The whole process was accepted that the structural arrangement in Britain by the judiciary with very ease without made structural judicial independence any murmur on its part. The judges of unlikely, yet still the fact is that British superior courts had been asked four judiciary, particularly at the highest times (i.e. in 1977, 1981, 2000 and level, was known for its independence 2007) by the military dictators to take a (because of behavioral independence). new oath under Provisional Behavioral independence was acquired Constitutional Order (PCO). They have after a long struggle in which many never been able to act collectively and to British judges were willing to stand up resist as an institution, the executives to the British sovereign at great personal measures undermining the prestige as risk during the Tudor and Stuart periods, wells as independence of the judiciary. even before the Act of Settlement of Each time except in 1977, a good 1701, gave judges life tenure on good number of judges of the superior behavior (Dam, 2006). judiciary were arbitrarily removed by the military regime, simply not inviting Although the independence of the them to take new oath. Their only fault British judicial system was established was that they were not under the by behavioral independence rather than influence of the government and were structural independence, it does not apparently known as independent follow that a developing country like judges. There were also certain noble Pakistan can afford to neglect structural judges who individually refused to take independence. Structural independence new oath under PCO and preferred to and behavioral independence can sacrifice their prestigious service at the support each other and in a country altar of their conscience. seeking to overcome legalized abuse of the executive authority, it is mars to see The most shocking and painful episode judicial independence “fully secured” if was the oath taking of several judges of one does not foster both. the superior judiciary under PCO 2007, promulgated on November 3, 2007 by JUDICIARY AS AN INSTITUTION General Musharraf as Chief of Army The preceding history of Pakistan tells Staff. Anticipating something unusual, the fact that judges could not develop the several senior judges of the Supreme judiciary as an institution. They never Court including the Chief Justice responded collectively as an institution remained in the Supreme Court till late to a threat or direct interference in the afternoon on Saturday (November 3, independence of judiciary. For example 2007). As they came to know about the the Chief Justice of Pakistan, Justice declaration of Extra-Constitutional Yaqoob Ali Khan was arbitrarily Emergency and promulgation of PCO

Gomal University Journal of Research, 27(2). December, 2011 56 Shah et al., Superior Judges Commitment 2007, they immediately assembled in a judges also switched over to the court room. In an unprecedented move, government’s side. At the end 5 seven judges of the Supreme Court Supreme Court judges and 40 High headed by Chief Justice Iftikhar Courts judges took oath under PCO Muhammad Choudhry overturned the 2007. A very good opportunity of PCO and restrained the Chief of Army collective stand as an institution has Staff, Corps Commanders, Staff Officers been missed by the judges who preferred and other civil and military officers from their personal perks and privileges over acting under PCO. The court directed the institutional interests. President Musharraf and Prime Minister Shaukat Aziz not to take any action Judges of the superior judiciary not only contrary to the independence of the failed to collectively resist the onslaught judiciary and asked the judges of the on the independence of judiciary but Supreme Court and the High Courts, they have been so docile and passive that including their Chief Justices, not to take they could not protest even at an oath under the PCO or follow any humiliation of their brother judges. For other extra-constitutional step. This example, during General Yahya Khan’s order of the court was distributed among martial law in 1969, as Sub-Martial Law the media men present at the time Administrator, General Abu Bakr (Dawn, The News, The Nation etc dated Usman Mitha issued a notice of November 4, 2007). The same was contempt of martial law to two justices communicated to all Chief Justices and of the West Pakistan High Court and judges of the Supreme Court and High both judges were asked to appear before Courts (The News, 4-11-2007). In spite the General. They were blamed in the of the clear order from the Supreme notice for staying an order of military Court, there were certain judges who court. According to Justice Nasim took new oath under PCO without any Hassan Shah – one of the two judges to hesitation and in complete violation of whom the notice was issued – almost all the Supreme Court’s direction. Though judges of the West Pakistan High Court this time majority of the judges resisted kept silent and was avoiding taking open the powerful establishment but their stand and supporting their colleagues stand was destroyed by some self- against General Mitha (Shah, 1997). centered judges. On November 3, 2007, Another shocking episode of judges’ 13 judges out of 17 Supreme Court disgrace happened in 1981, during judges including the Chief Justice of General Zia’s regime, where three Pakistan and 49 judges out of 77 judges judges of the Lahore High Court were of the High Courts refused to take oath returned from the Governor House under PCO. Justice Abdul Hamid because they were not to be given oath. Dogger was sworn in as Chief Justice of Other brother judges present including Pakistan. Within few days some other the Chief Justice of the Lahore High

Gomal University Journal of Research, 27(2). December, 2011 57 Shah et al., Superior Judges Commitment Court did not take any stand for the declined to take oath under PCO? In a colleagues who were so blatantly society like Pakistan, even a dictator insulted and humiliated (Khan, 2001). would think a hundred times before sacking the entire judiciary. In the days On March 9 2007, the Chief Justice of of General Ayub Khan’s regime, where Pakistan, Justice Iftikhar Muhammad the Chief Justice of Lahore High Court Chaudhry was summoned by General (one of the noble exceptions) learnt that Musharraf to his army office, there he a writ issued by the High Court was not was pressured to quit. On the refusal of going to be honored by the government, the Chief Justice to do accordingly, he the Chief Justice threatened Ayub Khan was detained in the army office up to that the whole Court would resign in five hours. In the meanwhile another bloc. It is said that Chief Justice was judge of the Supreme Court, Justice carrying the letters of resignations of the Javid Iqbal, was appointed and sworn in judges in his pocket. There upon a strong as acting Chief Justice of Pakistan. The dictator like Ayub Khan baked down irony is that the fellow judges of Justice (Samdani, 2004). But this example is Iftikhar instead of inquiring about the unique in the judicial history of Pakistan. well being of their Chief and ordering of his production and availability in the ROLE OF THE INDIVIDUAL Supreme Court, rather they went ahead JUDGES OF THE SUPERIOR and took oath as was desired by another COURTS Chief (COAS) and people saw them The role of the individual judges in congratulating each other on this victory. achieving and preserving the Sweets were presented to one another on independence of judiciary can hardly be this happy occasion (Malik, 2007). overemphasized. Similarly a judge’s adverse role is also more injurious to the In short when it is time of judicial unity judicial independence than any other you can always find judges, who will factor. A former Indian judge says “the come forward and act against their own functioning of institutions and the peer. Solidarity amongst the judges conduct of the individual judges is the would be a better guarantee than that sine quo non for independence of the offered by a Constitution which could be judiciary. The damage caused by the abrogated by a stroke of the sword. institution, either by its decision----- or Respect and stature of institutions grow by the conduct of the judges is far more with sacrifices. High traditions are never injurious to the independence of established by taking apologetic attitude. judiciary than the external assaults” A question comes to one’s mind. What (Anklesaria, 1991). would have happened if all of the judges It takes years and decades of dedicated of the Supreme Court and High Courts, and conscientious work to build an at any of the past four occasions, had institution, according to Justice Khanna,

Gomal University Journal of Research, 27(2). December, 2011 58 Shah et al., Superior Judges Commitment but institutions can be destroyed over Conduct provides that a judge shall be night by the ambition, waywardness, careful to preserve the dignity of the pettiness or weakness or by one or the court. Article III directs a judge to be other of these taints at the hands of, above reproach, and for this purpose to sometimes, adventurist or self-seekers keep his conduct in all things, official and at other times of petty minds or and private, free from impropriety or those who cave in under fear and even even the appearance of impropriety, to those well intentioned but carried away avoid infractions of the law even in the by exuberance of their ideas (Khanna, smallest things. Certain judges 1985). particularly Chief Justices of the History tells us that great institutions superior courts had been involved in have sometimes been damaged by certain activities which could not be internal forces proven to violate reconciled with the oath taken by the established code and norms of behavior. judges as well as with the Judicial Code The inevitable effect is that they erode of Conduct. the institution from within and defile its image. The same thing happened with In spite of the fact that judges were the judiciary of Pakistan. The majority bound by their pious promises made of the judges of the superior courts in under the oath to preserve, protect and Pakistan, except on one occasion (i.e. the defend the Constitution, some of them judges’ resistance to PCO 2007); instead presented their services, for legal of protecting the image and integrity of advice/legal drafting, to the actors the judiciary from the onslaught of the responsible for assault on the external factors, they facilitated the Constitution, disruption in the legal external factors in trespassing the order and destruction of the political independence of judiciary. Before the institutions of the country. Examples British left this country, one of them start from the tenure of Justice Munir as remarked that of all the institutions, they Chief Justice of Pakistan. Justice Munir were leaving behind, judiciary was one used to give his legal advice, on which could never come to harm except important legal and constitutional issues from inside (Samdani, 2004). This is to President Iskandar Mirza and General exactly what befell Pakistan’s judiciary. Ayub Khan – the First Martial Law dictator (Khan, 1967 & Mahmood, The judges of the superior courts take an 1992). Justice Munir was also helpful in oath that they will “preserve, protect and drafting the Laws (Continuance in defend the Constitution” and they will Force) Order 1958, promulgated by do justice “according to law without fear martial law regime of General Ayub or favor, affection or ill-will” (6th Khan. He stated, after his retirement, Schedule of the constitution of Pakistan). that a few hours after declaration of Article II of the Judicial Code of martial law, he was called by the

Gomal University Journal of Research, 27(2). December, 2011 59 Shah et al., Superior Judges Commitment President to Karachi and he took the first (Kadri, 1990). Again it was Chief Justice available plane. He continued, “I was to Yaqoob Ali Kahn who recommended scrutinize the draft instrument which the advocate Sharif-ud-din Pirzada to be the law secretary had been required to Attorney General and chief advisor of prepare------and in a meeting which was General Zia’s regime (Kadri, 1990). attended by the President and Chief Martial Law Administrator who was In Begum Nusrat Bhutto’s case (1977) accompanied by a young army officer, the Supreme Court not only validated the law secretary and myself, I suggested General Zia’s martial law but General certain modifications. The instrument Zia was empowered to perform all acts was entitled the Laws (Continuances of legislative measures which could have Force) Order and purported to be been made under 1973 Constitution promulgated in the name of the including the power to amend the President.”(Mahmood, 1992). constitution. Justice Dorab Patel, a judge of the Supreme Court Bench that The Chief Justice of Pakistan having validated General Zia’s coup, narrated in associated himself with the drafting of later days, that the aforesaid underlined the Laws (Continuance in Force) Order words were not included in the typed 1958, then presided over the Bench of judgment circulated amongst members the Supreme Court which gave validity of the Bench and these words were later to this order in Dosso’s case. An analyst added by Chief Justice Anwer-ul-Haq termed this shocking episode as a after getting the judgment signed from “mockery of judicial propriety and other members (Khan, 2005). General judicial independence”(Mahmood, (Retd) K. M. Arif -one of the confident 1992). generals of General Zia- has further elaborated the same shocking episode in General Zia’s martial law received the these words: “One day before blessings of the judiciary right from the announcement of the judgment, the beginning. The General, who started Chief Justice met Sharifuddin Pirzada function as CMLA by imposing martial (Attorney General of General Zia law in July 1977, consulted the Chief regime) at a party and told him that the Justice of Pakistan on almost every judgment would be announced the next important legal matter (Samdani, 2004). morning, at 9 am, adding that the court After taking over the government, had decided to hold the promulgation of General Zia drew to the Supreme Court martial law as legal. He enquired from to meet Chief Justice Yaqoob Ali Khan Pirzada if he would be attending court. in seeking his constitutional advice and Pirzada asked if the power to amend the the steps to be taken in the matter. It is constitution was also conceded to the no secret that Justice Yaqoob advised chief martial law administrator. Justice him to put the constitution in “abeyance” Anwer replied in negative. ‘In that case’

Gomal University Journal of Research, 27(2). December, 2011 60 Shah et al., Superior Judges Commitment replied Pirzada, ‘the government would administrative set up of the government have to swear in a new chief justice.’ and other related constitutional and legal ….. Anwer inserted the words, issues (Zafar, 2002). The extra official ‘including the power to amend it’ consultation and personal advisory (constitution) in the sentence in his own function of the Chief Justices had not hand.” (Arif, 2001) been limited only to military dictators. In May 1980, General Zia called the The practice of appeasing the executive Chief Justice of Lahore High Court, by giving extra official advice had been Justice Mushtaq Hussain and the Chief carried on by the Judiciary during Justice of Pakistan, Justice Anwer-ul- civilian governments also. For example, Haq for consultation. Both Chief Justices President Farooq Laghari, after prepared a draft for the General to make dissolution of Benazir Bhutto’s amendment in the Constitution. This government on November 5, 1996, draft was written by Justice Mushtaq invited the Chief Justice, Justice Sajjad Hussain in his handwriting and Justice Ali Shah to President House, where the Anwer-ul-Haq scrutinized it and made Chief Justice was briefed of the entire some corrections in it. This draft became situation which led the President of Article 212A of the Constitution (Patel, Pakistan to dismiss Benazir Bhutto’s 2004). Article 212A was added in the government (Zafar, 2002). The Chief Constitution through amendment order Justice could not realize that in the near promulgated on May 27, 1980 barring future, he could be on a bench to decide the High Courts from making any order over the legality of the President’s action relating to the validity of martial law of dissolving the Assembly. The Prime regulations or martial law orders. It Minister Nawaz Sharif intended to enact restricted the writ jurisdiction of the anti-terrorism law. In August 1977, High Courts. Furthermore, the provision Prime Minister Nawaz Sharif, Chief in Article 212A was violation of the Justice of Pakistan Justice Sajjad Ali express direction in the Supreme Court’s Shah, Chief Minister of Punjab Shahbaz judgment in Begum Nusrat Bhutto’s Sharif (Nawaz Sharif’s younger brother) case that the High Courts and the and Majeed Nizami of the Nawa-i-Waqt Supreme Court would continue to group met at the Lahore residence of exercise their powers of judicial review Nawaz Sharif to discuss the proposed against all orders of martial law anti-terrorism law and to arrive at some authorities. settlement (Mian, 2004). One fails to understand how the Chief Justice of After the coup on October 12, 1999 Pakistan could hold talks with Prime General Pervez Musharraf held two Minister and other persons about a meetings on the same day, with the proposed law. Under what authority Chief Justice of Pakistan seeking his could he arrive at any settlement over a consultation and advice over the new proposed law that was apparently

Gomal University Journal of Research, 27(2). December, 2011 61 Shah et al., Superior Judges Commitment unconstitutional? The same law, when perform his functions of his office due to enacted, was challenged in the Supreme any cause. It must be noted that Court and some provisions of the law Governor of a province in Pakistan is not (Anti-Terrorism Act 1997) were held by an elected person but he is appointed by the Supreme Court unconstitutional, the president after consultation with the hence declared void (Mehram Ali versus Prime Minister and holds office during Federation of Pakistan, 1998). the pleasure of the President (Article 101 of the Constitution of Pakistan). The Constitution of Pakistan is based on Whenever the office of the Governor of the doctrine of separation of powers. It a province becomes vacant, due to his clearly defines the domain of each absence or inability to function, usually organ. The judiciary is entrusted the the Chief Justice of the High Court of power to interpret the law and if any the concerned province is directed by the provision of law violates any President to act as a Governor of that fundamental right guaranteed by the province. In the early history of Constitution, the judiciary can strike it Pakistan, the Chief Justice of High Court down as ultra vires of the constitution. was casually appointed as acting The judiciary or the Chief Justice has no Governor. It became practice from days power under law and constitution to of General Zia’s regime. propose legislation or participate in any The direction of President to Chief such process. Justice of High Court to act as Governor was challenged on several occasions. In EXTRA-JUDICIAL DUTIES ON most of these cases main controversy THE PART OF JUDGES was, whether a Chief Justice of a High Under Article III of the Judicial Code of Court could be directed by the President Conduct, judges are required to avoid to perform as acting Governor or not? extra-judicial duties or responsibilities, The decisions of the courts were that the official or private to the greatest possible Chief Justice of a High Court could be extent. But judges of the superior courts directed by the President to act as particularly of High Courts do accept Governor in absence of Governor from extra-judicial duties, like appointment as Pakistan or where the Governor is acting Governors, membership of the unable to perform his functions due to Universities’ bodies like Senate and any cause (Rizvi, 2005). Syndicate. The disappointing episode in this context Under article 104 of the Constitution, the was appointment of all Chief Justices of President of Pakistan may direct a the High Courts as acting Governor of person to act as Governor of a province their respective provinces by General when the Governor of that province is Zia’s at the dawn of his martial law in absent from Pakistan or is unable to 1977, with the consent of the Chief

Gomal University Journal of Research, 27(2). December, 2011 62 Shah et al., Superior Judges Commitment Justice of Pakistan. Under post- some important and crucial proclamation order # 2 of 1977, acting constitutional cases’ proceedings. For Chief Justices were appointed for the example in 1990 petitions were filed in High Courts. The High Courts remained the Sindh High Court challenging the under acting Chief Justices for long President’s order of dissolving Benazir time. In this way new trend, detrimental Bhutto’s government. The petitions were to the independence of judiciary, was entertained by the then Chief Justice of started and usually the Chief Justices of Sindh High Court, Justice Sajjad Ali the High Courts were kept acting even Shah and a bench of five judges headed by the political executives, after General by the Chief Justice was formed for the Zia’s regime, till 1996 when it was hearing of the constitutional petitions discarded by the Supreme Court in the fixed for September 24, 1990. On judgment of Al-Jihad Trust’s case 1996. September 19, 1990 the Governor of Sindh went to Saudi Arabia for Umrah This practice of appointment of Chief (a religious pilgrimage). The Chief Justice of High Court, on several Justice of Sindh High Court was accounts, is not good rather detrimental appointed as acting Governor. The initial to the independence of judiciary. Article tour of Governor was for three days. But 175 of the Constitution of the Pakistan it was extended on the pretext of his provides for the separation of judiciary illness. He stayed abroad up to disposal particularly from the executive. The of the petitions. After rejection of the willingness of the Chief Justice of the petitions, the Governor came back and High Court to function as acting the Chief Justice was relieved to resume Governor goes against the concept of his own duties (Shah, 2001). Justice separation of powers. Secondly when the Sajjad Ali Shah was appointed as acting Chief Justice assumes the executive Governor just to keep him away from office as acting Governor, he becomes the bench hearing the petitions against head of the provincial executives. And the dissolution of Benazir’s government. his executive’s orders or administrative actions or provincial legislation The appointment of Justice Shahab-ud- ascended to by him, maybe challenged din, a judge of the Federal Court, as in the court of law of which he is the acting Governor of East Bengal Province Chief Justice. In such an eventuality, in 1955 caused disastrous consequences will not his colleagues/judges feel for democracy in Pakistan. (The embarrassment in over-ruling the Province of East Bengal was a province executive’s order of their own peer? of Pakistan later renamed as East Thirdly the judiciary, by accepting the Pakistan, separated in 1971, and adopted office of the acting Governor, gives an the name of Bangla Desh.) As Tamiz- opportunity to the executives to get ride ud-din Khan’s case moved to the Chief of an unwanted Chief Justice during Court of Sindh, Justice Shahab-ud-din

Gomal University Journal of Research, 27(2). December, 2011 63 Shah et al., Superior Judges Commitment was temporarily assigned by the provides, “Extra-Judicial duties or government to fill the office of Governor responsibilities, official or private should of East Bengal. The appointment was be avoided to the greatest possible unexpected and unusual because it was extent”. practice to have Chief Justice of High It is noteworthy that 18th constitutional Court of the province fill in for an absent amendment passed in 2010 has stopped Governor. The Governor General the misuse of the above referred replaced Justice Shahab-ud-din with provision of the Constitution by adding S.A. Rehman, the Chief Justice of new provision that in the absence of the Lahore High Court, as acting judge of Governor of a province, the Speaker of Federal Court. He has served in the the Provincial Assembly of the Lahore High Court under Chief Justice concerned province shall be acting Munir. Justice Shahab-ud-din was not governor of the province. only a strong minded as Justice Munir but had already taken position on the FAVOR TO JUDGES DUE TO core issue in Tamiz-ud-din Khan’s case THEIR OFFICES that is the Governor General’s assent to Article VIII of the Judicial Code of the constitutional legislation (McGrath, Conduct, provides that a judge must 2000). Chief Justice feared that with the refuse everything which comes as a Justice Shahab-ud-din and Justice favor due to his office. The code of Cornelius on the Court, he might not be conduct asks for refusal, on the contrary able to carry the majority of the court some judges had been found requesting with him. So Justice Munir requested for favor. During the earlier days of Governor General to get justice Shahab- General Zia’s martial law, the Chief ud-din out of the way so that he could Justices of the High Courts were manage the majority of the court in his appointed as acting Governors of their favor (Khan, 2005). respective provinces. They wanted to import for their personal use a duty free The fourth draw back of the appointment Mercedes car each. The federal law of the High Court’s Chief Justice as an secretary opposed the proposal on the acting Governor is that the first priority ground that by accepting the office of of every judge must be an even and the Governor, the Chief Justice did not speedy administration of justice. By cease to be judges and to import a car in assuming the function as an acting such a manner was not among the Governor, the basic function of the judge’s privileges. Therefore it was judge, that is, administration of justice, inappropriate for them to do so. But the will certainly suffer. Lastly, the Chief military government wanted to oblige Justice appointment as acting Governor the Chief Justices. So the CMLA is not in conformity with Article VII of referred the matter to the Chief Justice of the Judicial Code of Conduct which Pakistan. Instead of refusing to give

Gomal University Journal of Research, 27(2). December, 2011 64 Shah et al., Superior Judges Commitment advice as he was not the government One of the allegations among others was advisor, he wrote back an opinion which that the Chief Justice of Pakistan had accorded with the wishes of the been using seven official vehicles government (Samdani, 2004). Chief whereas one car was allowed for him Justice Anwer-ul-Haq could not realize (The News, March 21, 2007). But all that his opinion was inconsistent with these remained mere allegations because the article VIII of the Judicial Code of no inquiry about the allegations was Conduct. conducted as the reference against him was held by the Supreme Court void and Several governments allotted residential illegal. The agitating lawyers, members plots to the judges of the superior courts of the civil society and other critics of to win over their loyalty (Khan, 2001). the reference against Justice Iftikhar In 1986, under a scheme, plots were Muhammad Chaudhry, were not allotted to almost all judges, save few debating the allegations, nor were they ones, of the Sindh High Court by the defending the allegations, they were Chief Minister of Sindh, Ghous Ali critical about the timing of the reference Shah. When a judge pointed out to the and the ideas behind the reference which Chief Minister, in an informal meeting, were, according to them, based on that by allotting plots of land to some of prejudice, bias and personal interests of the judges, he had compromised the General Musharraf. position of the judiciary, his reply was Chief Justice Iftikhar challenged in the that he had been pressed hard by some of Supreme Court the reference against him the interested judges (Mian, 2004). as well as the composition of the Supreme Judicial Council. One of his In March 2007, President General objections against the composition of the Musharraf sent a reference to the Supreme Judicial Council was that the Supreme Judicial Council to conduct an acting Chief Justice Javid Iqbal was not inquiry against the Chief Justice of entitled to sit in the Supreme Judicial Pakistan who was accused of Council and conduct inquiry against him misconduct. It was alleged in the because Justice Javid Iqbal had also got reference that the Chief Justice had got his two daughters admitted in the same his son, Arslan Iftikhar, admitted to medical college on the nomination of the Bolan Medical College, Baluchistan in Chief Minister of Baluchistan and got 1996 on the recommendation of the his son-in-law appointed (The News, Chief Minister Baluchistan. The posting March 19, 2007). of Arslan as Section Officer in civil Article IX of the Judicial Code of secretariat Baluchistan, was allegedly Conduct says that a judge should, in his made, outside of merit. His subsequent judicial work and his relations with other postings and transfers were allegedly judges, act always for the maintenance possible due to special favor with him. of harmony among all courts and the

Gomal University Journal of Research, 27(2). December, 2011 65 Shah et al., Superior Judges Commitment integrity of the institution of justice. to judicial independence than any other There are several examples of gross external factor. To protect judges from violation of this Article IX of the damages which emanate from sources Judicial Code of Conduct. Once it was outside there are many others who can violated by almost all judges of the help, so far as the dangers from within Supreme Court of Pakistan, that is, the are concerned, judges are the one removal of Justice Sajjad Ali Shah from primarily responsible for them and the office of the Chief Justice of judges are the ones primarily who can Pakistan in 1997 by a Bench of Supreme avoid them. Court consisting of ten judges. The revolting judges succeeded with clear The foregoing study demonstrates that, support of Nawaz Sharif’s government, unfortunately, the judiciary in Pakistan in removing their own senior peer with miserably lacks behavioral disgrace and in unprecedented way. independence. Consequently, the image Justice Sajjad Ali Shah, once Chief of the judiciary had been lowered in the Justice of Pakistan and an honorable eyes of the public, the dignity of the brother judge of the other Judges of the judiciary tarnished and judicial Supreme Court was sent to his home independence surrendered at the even without a reference in his honor. preference of the judges’ personal gains, All these judges of the Supreme Court self-interests and official perks and were bound to “preserve the dignity of privileges. the court” under Article II of the Judicial Code of Conduct and “to maintain Although this paper is for a limited harmony in relations with other judges period as stated in the abstract yet it will and integrity of the institution of the not be out of context to say few words justice” under Article IX of the Code of about the present superior judiciary of Conduct. Pakistan. After restoration of the judges of the superior courts in 2009 due to CONCLUSIONS Lawyers Movement, the judiciary Independence of judiciary does not mean particularly the Supreme Court and the merely independence from outside High Courts have dared to function as influences but also from those within i.e. per law without accepting any from the judges of weak character and influence/pressure. That is why the doubtful integrity. It goes without saying public confidence in the superior that a judge having a weak character judiciary has been restored to great cannot be a good judge. Without good extent. The difference between the past judges, an independent and competent judiciary and present judiciary is not due judiciary will remain only a dream. to structural independence but due to Judges having weak character and behavioral independence. doubtful integrity are more detrimental

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Gomal University Journal of Research, 27(2). December, 2011