Outgoing Supreme Court Judge Justice Maqbool Baqar, who is set to retire tomorrow (Tuesday), has said that the exclusion of certain judges from hearing sensitive cases on account of their independent and impartial views has an adverse effect on the impartiality of judges and added that the practice has also tarnished public’s perception about the independence of judiciary.
"Another vital aspect which, even though it pertains to the internal dynamics of the judiciary, has a very serious bearing on its independence, impartiality, and integrity is the issue of assignment of cases. The United Nations Special Repertoire on the independence of judges has urged for a fair and objective criterion for the assignment of cases which would protect judges from undue interference, Justice Baqar said in his farewell speech at full court reference on the eve of his retirement.
Exclusion of certain judges from the hearing of sensitive cases on account of their independent and impartial views has an adverse effect on the impartiality of judges while also tarnishing the public’s perception of the independence and integrity of the judiciary. This practice also tends to affect the morale of judges who are consigned to less significant benches and fosters feelings of estrangement amongst members of the bench, he added.
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While speaking about alienation, he highlighted an issue that has created “fissures” amongst members of the bench. “As someone has frequently dissented with my brother Judges. I have been in agreement with Chief Justice Hughes of the US Supreme Court when he said dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.
"Nonetheless, an enviable practice of our judicial tradition was that judges in the majority or in dissent would refer to those they disagreed with as their ‘learned brother’, thus, implying that notwithstanding their disagreement on the interpretation of certain legal provisions, the other judges’ views too were learned and thus deserved respect and reverence. Nonetheless, the manner in which we have referred to each other while differing from each other’s views in the recent past should cause immense discomfort to all of us. Can this country expect us to be temperate, balanced, and respectful when we are incapable of displaying the most common of civility and courtesy to our own colleagues," he added.
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