The research team at the ministry of law is preparing a reference against Justice Waqar Ahmed Seth, confirmed Law Minister Farogh Naseem on Sunday. “The law ministry’s research team is working and the reference against Justice Waqar Ahmed Seth is under preparation,” the law minister was quoted by the Independent Urdu.
The government had announced two months ago that it would file a reference against Justice Seth after the judge wrote a controversial paragraph in the verdict against former military dictator Pervez Musharraf in the high treason case.
“An unfit judge”
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.
— Ali Salman Alvi (@alisalmanalvi) December 19, 2019
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.
The Law Minister, Farogh Naseem and former 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.
‘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.
Can we safely conclude from the Gang of Mush's presser that the only decision made during the meeting between PM Khan and General Bajwa was to file a reference against Justice Seth Waqar?
— Amber Rahim Shamsi (@AmberRShamsi) December 19, 2019
Incapacity is described as ‘all forms of physical or mental incapacity which will render the judge incapable of performing his duties in the office.’
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.
Pakistan Bar Council apex body of lawyers has urged PTI government to refrain from filing presidential reference against Peshawar High Court Chief Justice Waqar Ahmad Seth on account of judgment awarding death sentence to Musharraf in treason case. pic.twitter.com/LUSdUL0r5M
— Hasnaat Malik (@HasnaatMalik) February 3, 2020
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.
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.
سنگین غداری کیس، پرویز مشرف کو سزائے موت کا فیصلہ سنانے والی خصوصی عدالت کے ایک جج جسٹس وقار سیٹھ کے خلاف ریفرنس دائر کرنے کے لیے اسلام آباد ہائی کورٹ میں تین این جی اوز کی درخواست
حکومت کو کہا جائے کہ وہ اپنے وعدے کے مطابق جج کے خلاف ریفرنس دائر کرے، استدعا pic.twitter.com/vjTtRtomPO
— Awais Yousaf Zai (@awaisReporter) February 22, 2020
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.
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.