By Khaled Ahmed
March 17, 2018
On February 27, Chief Justice of Pakistan Mian Saqib Nisar responded to the charge that the judiciary had erred by taking on cases that were political and divisive by saying, “I swear to God that I have no political agenda but what I want or wish to see is the availability of clean drinking water, basic health facilities and food to the people of Pakistan”.
He didn’t address the “political” problem at all; he simply forgave himself the spree of suo motu cases he was setting up. He was garrulous and populist in a third-world environment which is poison for a chief justice. He should have harked back to the tenure of his predecessor, Iftikhar Chaudhry, who began with a lot of goodwill but became painful to bear as he undid such important reforms as the denationalisation of the spectacularly loss-making Pakistan Steel Mills.
Not taking political cases has become a word of advice in all judiciaries. You get into the dirty business of toppling governments that opposition politicians love and you ruin your reputation as an impartial judge.
There was a time when the judiciary shrank from brawling with the executive. Chief Justice Iftikhar Chaudhry began the trend as if to compensate for all those years. He made “suo motu” the most dreaded word. The lawyers who loved this phase said India too had an activist Supreme Court; but when you asked the Indians they said, yes, but Pakistan was overdoing it. By 2007, Chief Justice Chaudhry could have hit the Guinness Book with his 6,000 suo motu cases. Add self-dramatisation to suo motu through references to American fiction and you have a falsely postured court going in the wrong direction.
Justice Nisar is also following the Chaudhry court tradition of addressing the bars where lawyers form the “army” of “justice”, clapping every time he uses the rough word “thok” — used in Indian movies by gangsters for a pistol shot — to describe how tough his “justice” is going to be. Over a Lakh-and-a-half Pakistani lawyers — who can do a lot of damage to property when they hit the street — clap when he hints at his desire for their support as he goes for the jugular of powerful politicians.
But what he did to Prime Minister Nawaz Sharif was not always liked. Leader of Pakistan Tehreek-e-Insaf (PTI) Imran Khan, archrival of the dismissed prime minister, told a TV channel February 18 that the Supreme Court of Pakistan had delivered “a weak verdict” by pinning Sharif’s dismissal on Iqama, a residential visa to the UAE. He thus delivered a boost to Sharif’s political campaign against the Supreme Court for leaning on a frivolous pretext to oust him from power in 2017.
The court relied on a “finding” of the Joint Investigative Team (JIT): That Sharif had not revealed a source of his overseas income from the UAE and had not declared this income in his nomination papers. Sharif’s assertion that he had neglected to draw the salary from a UAE firm owned by his son didn’t wash. Khan honestly highlighted the weakness of the court to rely on an “Islamic” article of the Constitution enabling an “absolutist” verdict without any regard for mitigation. The dismissed PM — for the third time in his career — has unleashed a public challenge to the Court on its “Iqama” verdict, which many senior lawyers have already criticised. Khan’s opinion lends greater moral strength to it.
Everyone knows that the court has lowered itself into a litigation through which the political parties want to pull each other down. Everyone knows that Sharif’s PML-N doesn’t get along with the Pakistan army and that some judges are prone to show themselves as part of the more powerful establishment determined to replace the ruling PML-N with Imran Khan’s Pakistan Tehreek-e-Insaf (PTI). Also, the article pertaining to “Sadiq” and “Ameen” lends itself to judicial literalness. If someone has been caught lying once, does it mean he will be lying forever? Is lying an un-compoundable crime like murder? Even in the case of murder, manslaughter or unintentional killing is compoundable.
Respected journalist IA Rehman (Dawn, March 1) wrote: “The Supreme Court’s order of Feb 21, whereby Nawaz Sharif was dislodged as president of the PML-N, has raised many questions that need to be satisfactorily answered in the interest of democratic politics and the judiciary’s independence.”
Khaled Ahmed is consulting editor, ‘Newsweek Pakistan’