- Not so enviable
The Honourable Chief Justice of Pakistan Justice Saqib Nisar addressing the National Judicial Policy making committee last Thursday vowed to protect the democratic set-up and strongly rejected the notion that judiciary was acting as part of plan to derail democracy. I would be the last person not to take his words at their face value. But unfortunately the public perception about judiciary is not so enviable. The permeating view within the society is quite contrary to it. The SC made a blunder by taking up the petitions of the political parties, including PTI against Nawaz Sharif in regards to Panama Leaks which was a highly politicised issue.
The Panama Leaks had revealed the names of about 450 Pakistanis who owned off-shore companies. If at all the SC considered it an issue of utmost national importance it should have formed the JIT to investigate all the cases instead of singling out Nawaz Shairf, which reinforced the impression of a witch-hunt. The SC judges in their observations during the hearing of the case grilled the NAB harshly and chided it for its failure to investigate the Panama Leaks, the obvious reason given to try the case in SC though it was not the court of trial.
But strangely enough after the announcement of verdict against Nawaz Sharif the SC did not show any inclination to take up other cases to erase the impression about its partiality. They are now being taken up by the same NAB about which the SC had expressed lack of confidence. People ask how come that NAB now has been given a free hand to deal with those cases. Honestly speaking cases of such nature should have been dealt with by the institutions created through acts of the parliament like NAB. The SC actually undermined these institutions by taking up the case directly. It also denied the avenue of appeal to the affected party which was his fundamental right.
Some people also point out the bias of judges in the Panama case by referring to the confession by Imran Khan in an interview with a private channel after the verdict against Nawaz Sharif that he had taken the case to the SC because Justice Azmat Saeed Khosa and the then CJ had telephone him to move the SC.
The semblance of confrontation between the judiciary and the PML-N surely is a sequel to the wrong decisions of the SC, its indiscretion of treading the political territory and the growing propensity to act as a savior of the nation for which it is simply not cut out as per the constitution
In my columns during the hearing of Panama case I invariably maintained that whatever verdict is delivered in the end, the judiciary would not emerge unscathed from it. That is what exactly has happened. Courts throughout the world avoid delving into cases of political nature and even when a situation emerges where they perforce have to deal with them, they observe utmost restraint, an internationally recognized principle of jurisprudence.
A sitting prime minister was disqualified under article 62(1)f notwithstanding the fact that the honourable judge of the SC Azmat Saeed Khosa who was part of the bench which decided the disqualification of Nawaz Sharif, in an earlier petition filed by Ishaq Khakwani in 2014 for his disqualification (PLD 2015) while dismissing the petition wrote an addition note regarding this article reiterating that many provisions of the Article 62 were not amenable to legally enforceable standards. Referring to Article 62(1)f he opined “It is proverbial that the devil himself knoweth not the intention of man. So why to have such requirements in the law, nay the constitution, which cannot even be defined, not to talk of proof”
It is interesting to note that even the present CJ Justice Saqib Nisar while hearing a case regarding determination of the period of disqualification period on 8 February 2018 reportedly remarked that article 62(1)f of the constitution was vague and its interpretation was difficult. In the light of the opinions of the two honourable judges of the Supreme Court one tends to ask if it was so then why a sitting prime minister had been disqualified on the basis of that article and why the court failed to exercise restraint and delivered the verdict on the basis of ‘Iqama’ which was never the part of the petitions filed by the petitioners?
The verdicts delivered by the SC in Panama case and disqualification of Imran and Jahangir Tareen were not the marvels of jurisprudence and hence came under severe criticism by the eminent lawyers and constitutional experts of the country. The court disqualified Nawaz Sharif under article 62(1)f but in case of Imran it failed to observe the standard set in the former case. Even the former Chief Justice Iftikhar Muhammad Chaudhry who was architect of the newfound judicial activism had to say that Imran had been provided relief by the judiciary notwithstanding the fact that both the cases were of similar nature.
The judiciary and the judges who adjudicated these cases may not have been part of any plan but their decisions reflected miscarriage of justice for the reasons best known to them. Judiciary is the most sanctimonious institution of the state and the judges of the apex court deserve utmost respect of the society. However this respect has to be earned through decisions that are strictly in conformity with the law and constitution and are also compatible with the internationally recognised principles of jurisprudence.
World history is replete with myriad of instances of miscarriage of justice. The judiciary in Pakistan has the dubious distinction of validating martial laws on the invented doctrine of necessity and even authorising the dictators to amend the constitution in spite of the fact that judiciary itself was not competent to amend the constitution what to talk of authorising other to do so. Those decisions represented breach of the constitution by those judges who delivered the verdicts which had debilitating impact on the political landscape of the country and kept it away from the democratic path envisioned by the father of the nation. There were many other cases including that of Zulfiqar Ali Bhutto which represented miscarriage of justice.
The semblance of confrontation between the judiciary and the PML-N surely is a sequel to the wrong decisions of the SC, its indiscretion of treading the political territory and the growing propensity to act as a savior of the nation for which it is simply not cut out as per the constitution. The real dilemma of this nation has been the interference of one institution of the state into the domain of the other institutions. The tendency to overlord the parliament and the executive by the judiciary will create more problems than it would resolve as was the case when Iftikhar Muhammad Chaudhry headed the judiciary.
While it is desirable on the part of the PML-N and its leaders to tone down their criticism of the judiciary it is also incumbent upon the judges not to show their egoistic inclinations that smack of vengeance. The court must show restraint and avoid sending out contempt of court notices to the political leaders because it would embroil the judiciary in an unending controversy undermining its prestige besides scuttling its credibility.