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Thursday March 28, 2024

Judiciary draws the ire for its recent decisions

By Tariq Butt
December 18, 2017

ISLAMABAD: A telling downside of the superior judiciary’s adjudication of cases of extreme political nature in a highly charged political atmosphere has unfortunately hit Pakistan’s landscape with the major combatants finding fault with its recent decisions.

Only a naïve person will expect that such judgments would not attract a variety of comments, negative and positive, when in one instance the prime minister of Pakistan was disgracefully ousted while in another his chief adversary was exonerated despite facing similar charges. It was impossible to avoid creeping in of politics when the cases were more of political nature and less of judicial determination. In this tussle, the Supreme Court (or some of its judges), which is facing the harangue of leading politicians, is defending itself, and the task has been taken upon himself by Chief Justice Mian Saqib Nisar. Being the boss of the superior and subordinate judiciary, he is to react to blunt any tirade against it and to save it from being becoming further contentious. All the three foremost judgment – Panama, the one relating to Imran Khan and another pertaining to the Hudaibya Papers Mills - handed down by different panels of judges have stirred a political storm, which will continue to haunt in the months and years to come. Even if they had been the best verdicts, earning kudos from all and sundry specifically the legal brains, it was unthinkable that they were going to be billed as fair in the political realm.

The conclusion that the apex court registrar had reached on the Panama petitions against Nawaz Sharif when he had trashed them for being “frivolous” was best not only for the judiciary but also for Pakistan’s politics that would not have so much destabilised as it had now been. Had the decision of the registrar (who is not supposed to independently make it but is considered the voice of the chief justice) not been reversed subsequently, the top court would have conveniently skirted the raging row it is now confronted with. It would have been prudent to let the politicians cleanse their shop on their own.

There was striking difference in the tone and tenor in the proceedings on the petitions against Nawaz Sharif and Imran Khan that not even a simpleton ignored. Barring an exception (Justice Gulzar Ahmed) all the judges were extremely harsh in their observations and remarks, and it appeared as if hearings were set to emasculate and hurt the sitting PM politically. When the incumbent premier is called “godfather”, “Sicilian Mafia” and “behind every fortune is a crime”, reaction is bound to come as all these descriptions were obviously uncharitable for the most popular politician and he felt and rightly so that they were aimed at smashing him politically. When Justice Saqib Nisar publicly lambasted Nawaz Sharif without naming him, he did not touch the unheard of remarks that the justices had passed against the former premier and also did not stress that the judges should be guarded and cautious and should speak through their judgments only and moderate the practice of passing such kind of observations.

On the other hand, the approach of the judges, who heard the petitions against Imran Khan, was entirely different from what transpired during the Panama hearings. It was polite, which was also reflected in their verdict, clearing the accused from all the grave charges. Both the two principal warriors – Pakistan Muslim League-Nawaz (PML-N) and Pakistan Tehreek-e-Insaf (PTI) – are happy as well as sad over the three judgments, marking their contradictory stands. This is the primary disadvantage of the adjudication of the cases of political import. Such rulings become highly controversial and a hot topic of debate for politicians because if they benefit one political party, they hurt another.

The PTI was thrilled when the apex court threw out Nawaz Sharif, but was critical when the National Accountability Bureau (NAB) appeal on Hudaibya was trashed. It was satisfied over the ruling exonerating Imran Khan but was gloomy over the ouster of Jehangir Tareen.

The PML-N was obviously exceedingly agonized over the verdict against Nawaz Sharif, but was content with the decision on Hudaibya. It severely attacked Imran Khan’s acquittal judgment.

Apart from the favourable or adverse reaction of the PML-N and PTI, other parties have also not lagged behind in commenting on the judgements on political cases. Sindh Chief Minister Murad Ali Shah has stated that the Supreme Court verdicts in the cases of leaders of PTI and PML-N were comparatively positive but it is the Pakistan People's Party which is always seen differently by the judiciary.

After the chief justice, heading a bench, handed down the verdict about Imran Khan and so had done the Panama panel, there was no need to clarify and defend it at a public forum. A question that pricks many minds is: why did he choose to speak about it publicly when he had written more than 200 pages in support of his conclusions. Like other key state institutions, the past of the superior judiciary is not ideal or something to be proud of. Doctrine of necessity, validating martial laws, arming the dictators with powers to even amend the Constitution, and taking oath under their unconstitutional rule are not shining examples, which continue to disturb all and sundry.

The chief justice aptly replied to the harsh critics of the judiciary, belonging to the political parties, but he ignored how cruelly Allama Khadim Hussain Rizvi called the judge names during his Faizabad sit-in. No court opted for issuing him a contempt notice. Rather all the cases registered against him and his followers for the worst violence they committed were withdrawn as per a dubious deal. As the Supreme Court chose to involve itself in sitting in judgment on cases of political significance, ordinary litigants suffer tremendously. This fact now emphasised by the chief justice had been repeatedly highlighted by discerning people, beseeching the judiciary to stay away from such litigation.

Unless there is no option to delve into such petitions, the superior judiciary ought to refrain from laundering the political dirt. Politicians are also at fault for dropping such pleas in the lap of the higher courts to settle scores with their rivals after they fail to overwhelm them in the political arena. But this practice needs to be discouraged that can be done only by the superior courts.

“Whatever the court insists, it’s descended into the muck of politics. That usually works to the politician’s advantage. In a way, the court had been trapped. It waded into the Panama mess to ingratiate itself with the public by seeming to broker the calling off of Imran’s Islamabad lockdown. Because to fiercely reject perceptions of judicial bias is to invite political and public debate that needed to be avoided. The sensible thing for the court would have been to never venture down this road to begin with. That’s no longer possible. The next best thing is for the court to find a way to extricate itself from issues that can have political ramifications. That may be hard to do because of an institutional shift. In practice, with the courts being asked to adjudicate in political disputes, it makes for controversy and confusion,” wrote a prominent columnist in a leading English daily. As far as the judgment about Imran Khan is concerned, former chief justice Iftikhar Muhammad Chaudhry, who has no love lost for Nawaz Sharif, has also echoed the theme that it was not a good ruling. “Both cases [against the former prime minister and Imran Khan] were of similar nature, but relief was given to one and refused to the other. There is a scope in the review of the latest decision.”