Gaffes gripping Justice Nisar

Daily: Daily Times
Date: 04.04.18

To err is human. The adage is the ultimate refuge of a human being. Commit a mistake and
expect from fellow human beings to forgive by acting in a divine (or godlike) way. In the
public domain, every error is a gaffe tightening its grip over Chief Justice Saqib Nisar with
each passing day, especially after his launching the recent spell of judicial activism since 15
December 2017.

On January 13 this year, while delivering a speech at a judicial conference in Karachi,
Justice Nisar said, “I don’t think I have written a long speech. I am always told that a speech
should be like a woman’s skirt. It should not be too long that one loses one’s interest. Nor
should it be too short to cover the subject. So I will be adhering to this principle.” The
original idea might be to create a convivial milieu, but the analogy invited the ire of women
rights activists who launched a diatribe against him saying that the quote revealed some
deep-rooted sexism and that Justice Nisar was not required to amuse anyone by
objectifying women. Consequently, on January 24, Justice Nisar apologized publicly. This
was the first regret he expressed and the first retraction he did openly.

On March 27, Prime Minister Shahid Khaqan Abbasi met Justice Nisar for two hours at the
Supreme Court (SC). On March 29, during a hearing on illegal constructions in Murree,
Justice Nisar remarked that his job was to listen to the pleas of every ‘faryadi’ (complainant)
and this was why he let Abbasi meet him, as widely reported in the media. Though the word
‘faryadi’ can be understood better when translated into ‘solicitous’ than into ‘complainant’,
the word took the country by storm. The mock-cum-malign encapsulated in the manner and
context the word ‘faryadi’ was articulated stirred the followers of Abbasi’s political party. In
the evening, in a public gathering, when a reporter, Azaz Syed, asked Justice Nisar if it was
appropriate for a judge to call an elected prime minister a ‘faryadi’, Justice Nisar replied that
he did not utter any such words at all. In the immediate aftermath of this query, not only
reporters were barred from asking questions to publically available Justice Nisar, but the SC
also felt constrained to issue a press release averring that the word ‘faryadi’ was not
uttered for Abbasi, though the press release admitted that Justice Nisar had uttered the
word ‘faryadi’ overtly.

The public domain takes its toll especially when mistakes are done publicly. The first
difference between the banned TV anchor Dr Shahid Masood and Justice Nisar is that over
the years Masood had created an unrestrained overdeveloped penchant for committing
mistakes publicly and getting off scot-free. It is getting away with mistakes that opens space
for making more mistakes transforming a mistake into a blunder. The second difference is
that Masood had reached the point where he had exhausted all facilities for retracting his
words. Contrarily, Justice Nisar has at least twice pulled back his words uttered publicly.
The third difference is that Masood had no option to constrain reporters from asking him
questions. In the case of Justice Nisar, the security personnel pushed the reporters away
and allowed an opportunity to the SC to rescue Justice Nisar by issuing a press release.
The feature Justice Nisar shares with Masood is that they have both erred publicly.
Nevertheless, the more is the public exposure, the more mistakes are to surface.  

When Nihal Hashmi was invited second time through the contempt of court notice, he
vocalized a simple point broadcast on TV screens, “if the chief justice can retract his words
with impunity, why can’t I?” The answer is also simple: Hashmi is not the chief justice.
Though Hashmi was spared second time, a reality stood established: the chief justice
enjoys the unrivaled facility of retracting his words.

On March 27, after his meeting with the prime minister, Justice Nisar said that the judiciary
would continue to play its constitutional role, as reported in the press. This is an interesting
but intriguing statement. The reason is that, on the one hand, by invoking about 30 suo
moto notices since the beginning of this year, Justice Nisar has prioritized Article 184 (3), as
if this were the only article embodying the constitutional role of the judiciary. On the other
hand, within the given domain of Article 184 (3), Justice Nisar is selective to express his
concern by cherry picking the areas other than the judiciary. That is, Justice Nisar has
bifurcated the domain of Article 184 (3) into non-judicial (such as politics, social, and
economic) and judicial. He likes to invoke Article 184 (3) only in the non-judicial domain
under the belief that the domain of the violation of fundamental rights and the consequent
enforcement exists necessarily outside the lower and high courts.

Justice Nisar has talked about the constitutional role of the judiciary despite the fact that he
has not visited any high court or lower court in the country even for once to listen to the
problems of people since his becoming the chief justice on 31 December 2016. Apparently,
Justice Nisar believes that the acts of delaying and denying justice to people by the
judiciary, the presence of venal and inept judges running the judiciary, and the presence of
corruption and other anomalies in the judiciary are not the violation of fundamental rights of
people falling under the purview of Article 184 (3). Justice Nisar thinks that Article 184 (3) is
a source of populism in the non-judicial domain only: populism is not possible in the judicial

In short, functioning in the public domain under the influence of Article 184 (3) exclusively,
stomaching violation of fundamental rights practiced by delaying or denying justice in lower
and higher courts, uttering publicly wobbly words prone to retraction, and avoiding
reporters under the ruse of security concerns is a quartet, a working formula, Justice Nisar
has become able to cultivate.

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