As the Special Court has issued its detailed verdict in the Pervez Musharraf treason case, an incensed government announced a plan to seek the removal of the presiding judge, Justice Waqar Seth, through a presidential reference over his “three-day hanging” rider to the sentence of the former military ruler.
But now the government appears to be in two minds on whether or not to file the reference against Justice Seth with some members in the inner sanctum opposing the idea of approaching the Supreme Judicial Council (SJC), the apex forum mandated to hear complaints and take action against judges of superior courts.
“Not only this, but it is also undecided about filing a reference against Peshawar High Court Chief Justice Waqar Ahmed Seth for authoring paragraph No 66 of the detailed judgment."
— The Express Tribune (@etribune) December 24, 2019
Analysts believe that the government must file a reference in order to make history that no judge, who cannot control his anger, shall be part of the judicial system of Pakistan.
Justice Waqar Seth, who is also the chief justice of Peshawar High Court, wrote the grisly rider to Musharraf’s death sentence that stirred up a storm. Para 66 of the detailed judgment authored by Justice Seth states: “We direct the law enforcement agencies to strive their level best to apprehend the fugitive/convict and to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to the D-Chowk, Islamabad, Pakistan and be hanged for 03 days.”
Federal Minister for Parliamentary Affairs Senator Azam Swati dubbed the special court’s verdict against former military dictator Pervez Musharraf ‘judicial adventurism’. “This is not judicial activism but judicial adventurism,” Swati said in a TV show.
The senator questioned if the judges who wrote the verdict were writing a new history of the Constitution and the law. He added that the government had ‘reservations over the whole verdict’ and not just the controversial paragraph 66. “The selection of words in the verdict point to the judge’s ego and bias,” said the minister.
Where do Courts derive their legitimacy from?
Dr. Moeed Pirzada, prominent Pakistani political commentator, believes that “courts and judges are different from Jirgas. Court derives its power and authorization from either a constitution or some statute. It does not operate in a vacuum. How judge “Waqar Seth” justified his order in Para-66, where he derived legitimacy and authority for this order remains to be examined. What is the state of mind, quality of education and world view of a judge who actually writes something like that in ‘black and white’ in an official judgment next to a court seal representing a state? Can this “mindset” be allowed to exist on a high court bench; can such a man be elevated to the Supreme Court of Pakistan?”
Why Govt must send "Crazy Judge's Reference" to Supreme Judicial Council and on Para-66 alone? Why it's important for Supreme Court of Pakistan to feel the burden of history? https://t.co/2pkVsO2fRi via @@GVS_News
— Moeed Pirzada (@MoeedNj) December 24, 2019
While summing up main arguments being fashioned by the legal expert, Dr. Pirzada wrote “thus the latest arguments, being debated on the media channels are that: Supreme Judicial Council may not (or should not) accept reference built around a court judgment, that judge’s “mental competence” or ‘insanity’ can only be determined through a medical board; reference will weaken Pakistan’s position in the ICJ because a past decision of this judge was quoted in proceedings there and finally that government may be embarrassed because of its failure in getting Judge Seth disqualified from Supreme Judicial Council”.
He commented on the arguments saying “all these arguments are patently dishonest arguments (some like the reference towards ICJ are based on flawed assumptions) appear to be part of a well-planned political campaign to frustrate and stop the government from doing something “right” which this government has to do for preserving the sanity and self-image of the nation-state of Pakistan”.