Removal of a judge

The administrative committee of Lahore High Court (LHC) has approved the removal from service of Judge Arshad Malik on grounds of misconduct. Malik was the judge of the accountability court that convicted former prime minister Nawaz Sharif on a reference filed against him in a graft case.

Sharif’s conviction was announced in 2018 leading to his government’s dismissal. That was the beginning of his woes. Many observers believed his removal was part of an orchestrated plan to eventually install a more pliant leader who would foster a more acceptable relationship with the country’s other institutions.

In July 2019, some PML-N leaders held a press conference in which a video was shown that had Judge Malik claiming he was pressured for convicting the former PM. The judge’s message caused a stir in Pakistan and voices were raised for revoking the penalty of conviction on grounds of mala fide role of the judge. Later, the Islamabad High Court (IHC) summoned the judge, directing him to explain his position. Judge Malik in his affidavit claimed he had been blackmailed by PML-N supporters because of a video. Subsequent to this video, in another statement he asserted the video was fabricated. Few then believed he was making an honest denial of his dubious role as a judge.

Malik was repatriated to LHC where an investigation was conducted by a committee of honourable judges. Resultantly, Malik was found guilty of misconduct and was shown the door.

Fat on the heels of the sacking of the judge, the PML-N leadership has demanded Sharif’s conviction be set aside now that the judge who convicted him has been proven guilty of misconduct. Voices have been raised from other quarters for a review of the judgment that caused a storm in Pakistan and ushered in a new political era.

A conduct of a judge that is incompatible with established norms of judicial integrity cannot be forgiven. Because it strikes at the roots of the entire edifice of the judicial system and judicial institutions. A judge displaying such a character that questions his integrity and impartiality would be a stigma on any country’s institutions and systems. The question is whether the judgments pronounced by the judge while he was proved to be lackadaisical, unfair, prone to pressure or blackmail, would carry any legal value; whether orders passed by him in a case where he admitted to being pressured for adopting a certain line of reasoning would be deemed lawful and retain their validity even as the judge has been removed for immorality.

The plain fact is that once a bias is proved and misconduct is established that is connected to the case disposed by the judge, orders including any conviction should be declared null and void. It is then up to the system or institutions whether to set aside the conviction and restore the status quo or to order a new trial in the case.

That would be the saner and prudent course to adopt if the ends of justice are to be met.

Whether it would happen in Pakistan is another matter. For reasons that have to do with the ground realities and not so much with the observance of principles of justice, the desired outcome of the order of conviction being quashed and restoration of the status quo that existed prior to Sharif’s conviction, would not come through. In Pakistan’s political culture where there is a vested interest in the continuance of the current dispensation, the issue would be allowed to lose steam and be overtaken by ‘other important’ developments. Then it will gradually fade away.

But the sacking of the judge would generate an outcry for reforming the judicial system in the country. There could be some move in that direction — if only to demonstrate that the government is responsive to the citizens’ genuine demands. Also, certain thresholds would not be crossed.

And so the story goes of deep contradictions, hypocrisy, fledgling institutions, deep-seated conspiracies. The flowering of unfettered democracy does not seem to be on the horizon for Pakistan.

Published in The Express Tribune, July 8^th, 2020.

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