By Justice Markandey Katju–
(Justice Markandey Katju is a former Judge, Supreme Court of India, and former Chairman, Press Council of India. The views expressed are his own)
My article on the recent judgment of the Pakistan Supreme Court regarding the bat symbol published in Indica News has been read and acclaimed widely in Pakistan and elsewhere. Many have asked me to elaborate on the legal flaws in the verdict. As I see it, there are four glaring flaws in the judgment.
1. Violation of the principles of natural justice
There are certain legal principles known as the principles of natural justice which are the essential requisites of every court judgment. The first of these is the rule against bias.
This principle states that not only must a judge not be biased, but he must also appear to be unbiased. This is because not only must justice be done, it must also appear to be done. A judge must be totally neutral and impartial, and also appear to be so.
As stated by Lord Hewart CJ in R v. Sussex, justice must not only be served but should also be perceived as being done without any doubt. This principle was flagrantly violated in the bat symbol case.
Former Prime Minister Imran Khan had initiated proceedings for corruption against Justice Qazi Faez Isa (before he became the Chief Justice of Pakistan) before the Supreme Judicial Council of Pakistan.
It seems that for this reason the CJP bore a grudge against the former. He sat with a pre-determined mind to decide against Imran Khan’s party, the PTI. Even if Qazi Faez Isa, who presided over the three-member bench which delivered the verdict, was not actually biased, an apprehension would arise that he indeed was, for the reason given above. Hence he should not have sat on the bench, and nominated some other judge in his place.
The settled principle is that even if one of the judges on a bench is biased (or there may be an apprehension of bias in him) the entire verdict of the bench is vitiated.
The manner in which Qazi Faez Isa conducted the case certainly gave the impression that he was determined to decide against the PTI. He constantly kept interrupting the lawyers representing the PTI, not allowing them to develop their points, and was often rude to them. He gave lectures, and made frivolous and flippant remarks during the hearing.
For example, he asked why the senior lawyer Sardar Latif Khosa call himself a Sardar. He told him that if he doesn’t want to be burnt, he should not enter the kitchen, etc. The proceedings can be seen on YouTube. This definitely created an impression that he was biased, or at least appeared to be so.
2. Maintainability of the appeal
A cardinal legal principle is that only an aggrieved party can file an appeal. I have explained in this article that the appeal to the Supreme Court by the Election Commission of Pakistan was not maintainable as the Election Commission could not be said to be personally aggrieved just because the Peshawar High Court had set aside its order. Hence the appeal should have been peremptorily dismissed on this short point.
3. Merits of the case
The judgment was based mainly on the ground that the intra-party election of the PTI was not validly held. In fact, it had been held, and Barrister Gohar Khan had been elected its Chairman. It appears that 14 persons complained that they had not been allowed to contest the election.
But these persons, though they may have been earlier members of the PTI, had been later expelled, and they had obviously been set up. Not being members, how could they contest?
Barrister Gohar Khan, who appeared for the PTI, showed a list of members of the PTI and these 14 persons were not on the list. It is for the party to decide who are its members, not for the ECP.
4. Violation of the principle of proportionality
A basic legal principle is that the punishment should be proportional to the offense. One cannot be hanged for stealing an apple.
Even if the intra-party election of the PTI was not validly held, the appropriate punishment should have been a fine, not depriving it of its symbol. The PTI is the largest party in Pakistan. In his verdict, Qazi Faez Isa lectured on the need for democracy, but he himself struck a heavy blow against democracy by depriving the PTI of its symbol.
It should be noted that the Election Commission of Pakistan had imposed a fine of PKR 20,000 ($72) on another party, the ANP, for not holding intra-party election, without depriving it of its symbol. Why then this drastic order against the PTI?
