Judiciary's Baba Rehmatay

Daily: Daily Times
Date: 14.03.18

Compared to the past when politics used to unfold its theme of recognition, the judiciary is
now venting the same. On March 9, while heading a bench hearing the suo-moto notice
case (related to a fee hike for admission into medical colleges) at the Supreme Court (SC)
Lahore registry, Chief Justice Saqib Nisar said, “Let me make it clear how I earned the title
of a
Baba – a concerned oldie. It traces back to Ashfaq Ahmed. Baba is the one who helps
out people.”

Justice Nisar’s revelation to ape the late Ashfaq Ahmed is quite interesting simply because
Ahmed was never a judge. Nor did Ahmed ever claim to be a reformer of any sort. Instead,
he was a writer who used to muse for days and months to devise solutions for the problems
perturbing people socially. A retired judge can tread the trodden path, but a serving judge
is mandated to track a stipulated itinerary. The job status makes a difference between a
free man such as Ahmed and a fettered man such as Justice Nisar. Secondly, compared to
a free man who is a taxpayer, the salaried-class status keeps Justice Nisar confined to the
job assigned. The tyranny is that Justice Nisar thinks that he can switch roles at will
breaching the boundaries established by the law and reinforced by the rules of judicial

Earlier, on February 7, while heading a three-member bench hearing multiple petitions
against the Elections Act 2017, Justice Nisar said, “Loyalty to the state means loyalty to its
basic organs including judiciary. Likewise, the breaching of loyalty with the state institutions
will be disobedience to the Constitution.” This is an interesting interpretation of Article 5,
which otherwise says: (1) “Loyalty to the state is the basic duty of every citizen. (2)
Obedience to the Constitution and law is the [inviolable] obligation of every citizen wherever
he may be and of every other person for the time being within Pakistan.”

This kind of interpretation raises two adjunct points. First, if loyalty to the state means
loyalty to its basic organs including judiciary, why the trickle rests at the state institution.
There is a head of every institution. The next space to claim is that loyalty to the judiciary
means loyalty to the head of the institution. Secondly, if loyalty to the state means loyalty to
its basic organs including judiciary, why the descent stays only with the judiciary as the
basic organ of the state. There are other basic organs of the state. The next space to claim
is that each basic organ of the state demands unalloyed loyalty. The tyranny embedded in
this kind of interpretation is that the state institutions (and even their heads) make
themselves equal to the state. The interpretation is actually saying, “Through my institution,
I am the state; my words are the words of the state.” This is what the outgoing Senator
Farhatullah Babar said in his farewell speech on March 6 on the Senate floor: “
says that follow the Constitution and the Constitution is what I say.”

During the same hearing, Justice Nisar further said: “If Article 204, which empowers the
court to initiate contempt proceedings, be read with Article 5, then the court has unlimited
power to punish the person, who is carrying out smear campaign against the judiciary.” This
is an exciting recipe because there is another article, Article 209, which also invites
attention. If Article 5 searches for a duo, Article 209 can also complement it. The reason is
very simple, as mentioned in Article 5: “Obedience to the Constitution and law is the
[inviolable] obligation of every citizen,” thereby meaning that it is obligatory on every judge
including Justice Nisar to express compliance with the Constitution and law defined as
Article 209. In this combination of articles, the Supreme Judicial Council (SJC) cannot be
rendered non-functional and non-responsive. That is, Article 5 does not allow Justice Nisar,
Chairman of the SJC, to exercise inaction to the complaints of misconduct filed by the
citizens with the council against the judges of the higher judiciary. Instead, Article 5 makes it
obligatory on Justice Nisar to proceed with any such complaints sparing none.

Another such combination can be worked out. The preamble to the Constitution of the
Islamic Republic of Pakistan, 1973 provides that “sovereignty over the entire Universe
belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan
within the limits prescribed by Him is a sacred trust …wherein shall be guaranteed
fundamental rights, including …equality of status, of opportunity and before law, social
economic and political justice, and freedom of thought, expression, belief, faith, worship and
association, subject to law and public morality.” Here, the preamble is empowering in two
ways. First, the term “fundamental rights” can be paired with the contents of Article 209
thereby making it obligatory on Justice Nisar, Chairman SJC, to deal with the cases of
misconduct of judges publicly, and not secretly. Secondly, the term “public morality” can be
paired with the contents of Article 209 thereby making it obligatory on Justice Nisar,
Chairman SJC, to pronounce publicly the credibility of judges sitting in the higher judiciary.

Protecting fundamental rights is the declared essence of judicial activism rampant currently
under Article 184 (3), which defines the original jurisdiction of the SC by saying, “Without
prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a
question of public importance with reference to the enforcement of any of the Fundamental
Rights conferred by Chapter I of Part II is involved, have the power to make an order of the
nature mentioned in the said Article.” Interestingly, whereas Article 184 (3) leaves it to the
discretion of the SC whether or not to enforce given fundamental rights, the preamble of
the Constitution guarantees all citizens the enforcement of their fundamental rights
unavoidably and undeniably, even on and through the SJC. The enforcement expression in
the preamble leaves no room with Justice Nisar, as Chairman SJC, for circumventing the
invocation of Article 209.

In short, in order to be
Baba Rehmatay personified in the late Ashfaq Ahmed, Justice Nisar
needs to resign from the post of the chief judge and seek refuge in a jungle to offer people
visiting him solutions for their intricate problems. Secondly, the
Baba Rehmatay of the
judiciary needs neither misinterpreting the Constitution nor extending the fellow judges any
protection from accountability.

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