Murder of justice in Pakistan

Amalendu Upadhyaya
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By Justice Markandey Katju

The words ‘Thou art weighed in the balance and found wanting’, in the Bible (Daniel:5:27), were used by Sir Winston Churchill in 1938 to criticise Neville Chamberlain, the then British Prime Minister, for signing the shameful Munich Pact with Hitler.

The same words could aptly be used for the Pakistan judiciary too, for its recent shameful, distressing, disheartening and cowardly performance in repeatedly failing to protect the fundamental rights of the Pakistani people – which was its sacred and solemn duty under the Constitution-- when they are being trampled upon by the authorities, which have unleashed a fascistreign of terror in Pakistan, with impunity.

FormerPrime Minister of Pakistan Imran Khan is bravely leading the fight for democracy and humanrights in Pakistan, even when confined to a tiny, dirty, dingy bug infested dell in Attock jail.

He was convicted and sentenced to imprisonment for 3 years, by a blatantly dishonest and flawed verdict on 5th August, and the judge, Humayun Kabir, was promptly rewarded by the Chief Justice of Islamabad High Court, Aamer Farooq ( with whom he was evidently hand-in-glove ), by sending him and his family to London. I have explained this in the video below.

An appeal was filed before the Islamabad High Court, but the Court, while orally observing that the trialcourt's verdict appeared to be unsustainable, has been adjourning the hearing on flimsy pretexts.

A petition had also been filed in the Supreme Court against the judgment of the trial court , but the Supreme Court, while orally observing that the trial court's verdict appeared to be defective, said it will await the decision of the Islamabad High Court.

I submit that when both the High Court as well as the Supreme Court had found the trial court's verdict was prima facie wrong, bail should have been granted forthwith to Imran Khan, and he should have been immediately set free.

In Ghani vs Jones (1970),  Lord Denning observed “A man’s liberty of movement is regarded so highly by the laws of England that it is not to be hindered or prevented except on the surest ground.”

 Whenever a bail application or habeas corpus petition (a petition praying for release from illegal custody) comes before a British judge, he sets aside all other files, and takes up the petition as having priority over every other case, since it related to individual liberty.

So why did the Pakistan Supreme Court and Islamabad High Court, which found several defects in the trial court's judgment, not grant bail to Imran Khan, especially when the sentence was only of 3 years jail, and it was not likely he would abscond ( like Nawaz Sharif ), and instead has adjourned the case on flimsy pretexts

The only reason I can think of is that the judges hearing the case are scared of the Pakistan army, which is hostile to Imran Khan. The fate of former Prime Minister Zulfiqar Ali Bhutto may be dangling, like Banquo's ghost, before their eyes.

But a judge is not worth his salt if he is scared of giving a correct verdict by fear of the consequences.

 I have in the article below given the example of Qazi Sirajuddin of Bengal who risked his neck but refused to deviate from his solemn duty.

PakistanJudges, how will you answer Allah when brought before Him

In State of Maharashtra vs Bhaurao Punjabrao Gawande, (2008) the Indian Supreme Court observed that while the first object of the founding fathers was to give to the people a Constitution whereby a government was established, their second object, equally important, was to protect the people against the government. The Court observed:

“The imperative necessity to protect the people’s rights is a lesson taught by all history and all human experience. Our Constitution makers had lived through bitter years of the freedom struggle, and had seen an alien government trample upon human rights which the country had fought hard to preserve. They believed, like Jefferson, that ‘an elective despotism was not the government we fought for '. And therefore while arming the government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that these powers were not abused to mutilate the liberties of the people ''.

It is time that the Pakistan Supreme Court and High Court judges stop thinking exclusively of their salaries, perks and pensions, and do their solemn duty of protecting the people's rights ( even by suo motu proceedings ), failing which their names will be enshrined in the hall containing portraits of the ill reputed Judge Jeffreys, the Nazi judge Roland Freisler, the former CJ of Lahore HC Maulvi Mushtaq Husain ( who sentenced Bhutto to death at the command of Gen Zia ul Haq ), Ranjan Gogoi the utterly shameless ex CJI who had no vice which was not in him ( and was rewarded for his services by the BJP Govt by making him an MP ), and other ignominous figures of infamy.

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