The government has decided to file a reference against Chief Justice Peshawar High Court, Waqar Ahmad Seth, after his objectionable order in former president Pervez Musharraf’s case.
The judge who wrote “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,” is not mentally fit, the government has claimed.
A judge who has demonstrated a primitive man’s mentality cannot be medically proved to be unfit for the job
Prime Minister Imran Khan said that the special court’s detailed verdict in the former military ruler’s high treason case is an attempt to create “anarchy” and “unrest” in the country, as the federal government decided to move the Supreme Judicial Council (SJC) against the judge who authored the decision.
“The government will not allow any situation, which creates instability in the country or a clash between institutions, to arise,” said the prime minister while addressing a meeting of the Media Strategy Committee.
وزیراعظم کی معاون خصوصی برائے اطلاعات و نشریات ڈاکٹر فردوس عاشق اعوان، وفاقی وزیر قانون فروغ نسیم، وزیراعظم کے معاون خصوصی شہزاد اکبر اور قانونی ٹیم کی اہم پریس کانفرنس کریں گی۔۔۔ https://t.co/D7HXgVQUk0
— Dr. Firdous Ashiq Awan (@Dr_FirdousAwan) December 19, 2019
PM’s aide on Information Firdous Ashiq Awan said on Friday that “personal anger and malice” was seen in the special court’s verdict against the former military dictator. She said it was the government’s responsibility to take action if something happened contrary to the constitution and law. “It is our legal right to file a reference in the Supreme Judicial Council,” the PM’s aide said.
The Law Minister, Farogh Naseem and Attorney General, Anwar Mansoor Khan, have also said that the judge is a mentally challenged person who does not deserve to stay in the office. They have vowed to file a reference against him and request the apex court to immediately bar him from the work.
Justice Seth is busy in watching wrestling on TV?
Justice Waqar Ahmed Seth on Friday said that he is unaware of the controversy caused by the verdict he wrote in the high treason case against the former president as he only watched wrestling on television. According to reports, the PHC chief justice made these remarks during a hearing.
Read More: Pervez Musharraf cries of ‘Personal Vendetta’ at work in his case
While the hearing was underway, a lawyer paid tribute to the judge and praised the fact that the latter was confident despite the ‘tough circumstances’. In response, Justice Waqar said sarcastically that he did not know what was happening as he only watched wrestling on television.
‘Misconduct, mental capacity’
The Supreme Judicial Council Procedure of Inquiry 2005, which lays down the rules for the functioning of the Supreme Judicial Council, defines ‘misconduct’ as: conduct unbecoming of a judge, disregarding the code of conduct under Article 209 and someone who is found to be inefficient.
Incapacity is described as ‘all forms of physical or mental incapacity which will render the judge incapable of performing his duties in the office.’
Government’s position
If the government plans to make its case against Justice Seth on the basis of him being ‘mentally unfit’, therefore a case of ‘incapacity’, the Council may summon any expert, states the Procedure of Inquiry, to probe the ‘incapacity’ of the judge and order a medical examination by a local or foreign expert.
But legal experts like Salman Akram Raja believe that the case for the government shall be challenging since it will have to prove the allegations medically.
Sad & disappointed to see Salman Akram Raja (brilliant legal mind & scholar) finding lame excuses & legal chicanery to defend "primitive mind set & mental ability" of Judge Waqqar Seth ( in Arshad Sharif program (18 Dec) & glad that Mohd. Malik took a strong principled stand!
— Moeed Pirzada (@MoeedNj) December 20, 2019
Salman Akram explained his position:
I never defended the indefensible para 66 of the judgment. All I said was that a finding of medical incapacity requires a medical determination. Let that determination be made.
— salman akram raja (@salmanAraja) December 20, 2019
In response to him, Dr. Moeed Pirzada said:
Dear Salman, You are right in the sense of “legal definition of sanity” but we all know that this is not the argument here; it’s about Judge’s overall “primitive world view” that has been exposed; do you analyse that after this he should continue as High Court Judge?
— Moeed Pirzada (@MoeedNj) December 20, 2019
It is important to note that SJC’s Procedure of Inquiry also clearly states that in case it finds ‘the information or evidence provided to it was false or with the sole intention to malign a judge, or scandalizing the court or to undermine it in any form whatsoever, it may direct action against all those who are found to have provided the said information, or evidence as the case may be.’
Can primitive mentality be proved medically?
Analysts believe that the courts and legal community in Pakistan need to dissect the situation and carefully determine the future course of the judicial process in Pakistan. A judge who has demonstrated a primitive man’s mentality cannot be medically proved to be unfit for the job.
The judge, who has issued a verdict that negates basic human values, needs to be assessed and understood through his written-order, not through medical tests
Experts believe it is a matter of common sense that the judge who has shown utmost disregard for modernity, religion and the constitution of Pakistan is not capable of performing his assigned job anymore. Opinion makers believe that primitive mentality or disregard for basic moral principles cannot be proved through medical tests.
For example, a woman, Mukhtaran Bibi, known as Mukhtraran Mai, was gang-raped on the order of a tribal council of the local Mastoi Baloch clan back in 2002. As a matter of fact, there can be no medical test to prove that those who ordered such heinous crime were not fit to be part of the council.
Read More: If Dead, drag Musharraf’s Body to D-Chowk & let it hang for 3 Days
Experts view that men and women when holding powerful office are expected to speak through general conduct. The judge, who has issued a verdict that negates basic human values, needs to be assessed and understood through his written-order, not through medical tests.
It is worth mentioning here that recently a Conservative candidate stood down in the United Kingdom after Boris Johnson criticized his remarks from 2014 saying women should keep their “knickers on” to avoid rape. In the UK, no medical test was needed to prove that the man was not fit for the job. Analysts believe Pakistan needs to learn these modern-day practices to upgrade public discourse in the country.