Judicial politics

Daily: Daily Times
Date: 05.03.18

In a highly politicized society such as Pakistan where about more than 30 TV news
channels daily offer an evening time entertainment in politics only, if someone claims that
politics has not plagued them, it is impossible to believe.

On 27 February 2018, while heading a three-judge bench hearing a suo moto case on drug
prices, when Chief Justice of Pakistan Mian Saqib Nisar said, “I swear to God that I have no
political agenda,” hardly did anyone believe him. The reason is that, sparing none,
Pakistani society is deeply divided along political lines.

The façade of politics is to serve people but the objective of politics is to amass power. The
recent spell of judicial activism dates back to December 15, 2017. Justice Saqib Nisar does
not tell what change he has brought in the judicial system since then sparing his hands to
issue a surfeit of suo moto notices. Interestingly, since December 15, the other fulcrum of
power, the ISPR, is comparatively silent, watching developments from the sidelines.

As reported in the press, since the beginning of this year, an interesting corollary of
developments regarding parliament has taken place.

On 17 January 2018, Sheikh Rashid Ahmed of Awami League and Imran Khan of Pakistan
Tehreek-e-Insaf, while addressing a public rally in Lahore, cursed the parliament. On 19
January, heading a three-member bench hearing a suo moto case on the dried-up Katas
Raj pond, Chief Justice Saqib Nisar said that the parliament was supreme (“We heard the
other day people were condemning the parliament, but for us it is supreme”). On 22
January, in an interview to a private TV channel, DG ISPR Major General Asif Ghafoor said
that the Pakistan Army was people’s army (“We are the army of the people and do
whatever we can do for the people”). General Ghafoor had uttered this stance several
times before in his press conferences at ISPR. This stance necessarily negates the
executive, civilian oversight. On 20 February, while heading a three-member bench hearing
a case on the media commission, Justice Saqib Nisar changed his earlier stance about the
parliament and declared the constitution above the parliament (“Parliament is supreme but
there is also the Constitution above it”).

The stances of both the ISPR and the Supreme Court (SC) are now clear. Whereas the
army hides behind people, the judiciary hides behind the constitution. Both abhor the
parliament. This was the reason, in 2010, when the 18th Constitutional Amendment
introduced a change into Article 6, which resultantly encompassed not only the army by
mentioning “Any person who abrogates or subverts or suspends or holds in abeyance …
the Constitution,” but it also included the higher judiciary by specifically mentioning “Any act
of high treason [mentioned earlier]… shall not be validated by any court including the
Supreme Court and a High Court”. Article 6 simply declares that the higher judiciary used to
validate acts of high treason done by military dictators when they issued Provisional
Constitutional Orders (PCOs). Publicly, the judges who validated acts of high treason were
known as the PCO judges. No matter what pejorative sense the label of PCO judges
conveys, the act is a reality.

It is a reality because in any next parliamentary election, the people not only voted out the
military dictator thereby insulting his pride of being the commander of any “people’s army”
but the people also restored the parliament to denounce the PCOs, including the PCO

When the threat posed by people’s army is looming large on the horizon, the higher
judiciary has been trying to construct the people’s judiciary. This is why Justice Saqib Nisar
is now wishing that the people of Pakistan got clean water, food and basic health facilities,
as he uttered this wish on 20 February 2018.

The tradition of issuing disparaging labels to the elected representatives of people was
pioneered by Justice Asif Saeed Khosa who, in the Panama judgement issued on 21 April
2017 wrote a dissenting note which opened with a reference to Mario Puzo’s novel, The
Godfather, insinuating the violent tale of a Mafia family in Italy. Justice Khosa deliberately
used the epigraph, “Behind every great fortune there is a crime” to put his point across.
Later in the judgement, while disqualifying the then Prime Minister Nawaz Sharif, Justice
Khosa wrote, “I may, therefore, be justified in raising an adverse inference in the matter.
The fortune amassed by respondent No. 1 is indeed huge and no plausible or satisfactory
explanation has been advanced in that regard. Honoré de Balzac may after all be right
when he had said that behind every great fortune for which one is at a loss to account
there is a crime.” The note singlehandedly vitiated the political atmosphere in the country.

Justice Khosa knew very well that he was making these remarks about the then sitting
Prime Minister enjoying a huge public following. However, after ten months, on 21 February
2018, in a dialogue with Deputy Attorney General Amir Rehman in the court, when Justice
Khosa declared that he did not use the labels of ‘Godfather’ and ‘Sicilian mafia’ for anyone
including Nawaz Sharif, he must be assuming that the brainy lot resided only in the
Supreme Court. The rest must be cognitively crippled begging for his elucidation to fathom
the real issue. Further, Justice Khosa remained silent when after the 21 April judgement, a
crop of sycophants defended his act in the media, both print and electronic, by saying that
it was a tradition in the US judicial system to write dissenting notes with quotations. Justice
Khosa observed silence on the defence for ten long months. Now, instead of giving lame
excuses that Godfather was a positive character and Sicilian mafia referred to Nihal
Hashmi, Justice Khosa should admit his slipup and apologize.

The word “crime” used in Justice Khosa’s part of 21 April judgement got reverberated in the
SC when, on 15 February 2018, Justice Saqib Nisar and his colleague judges used the
invidious words of ‘criminals’ and ‘thieves’ circuitously for Nawaz Sharif on his being the
party head. The court was hearing a set of petitions challenging the Elections Act of 2017.
On 21 February 2018, Justice Nisar gave a judgement against Nawaz Sharif’s becoming the
party head. This is how, in the wake of the people’s army, the people’s judiciary has
surfaced making its space vis-à-vis the parliament through playing its style of judicial

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