Trying to contaminate the courts

When I speak to lawyers about Chief Justice Saqib Nisar, in full confidence and completely privately, they rave about him. He is widely known to be one of the brightest and most accomplished lawyers of his generation. They celebrate his ascension to the office of chief justice. He is, by almost every account, the perfect candidate to lead and reform Pakistan’s judiciary.

In recent weeks, he and his work have been criticised by several quarters. Most criticisms of the chief justice are politically motivated, but some are related to policy, and still others are concerned that the current spike in suo-motu notices will mar an otherwise glorious legacy.

When I informed a close friend who happens to be a Supreme Court lawyer that I would write about the chief justice, he said I should not waste my time trying to divine why he is doing what he is doing. He suggested I should focus on the impact of what he is doing. In essence, he wanted me to avoid the potential to cause offence to the chief justice. The same lawyer friend has also raved about the Saqib Nisar the man, and the lawyer. So I will take my chances. I am not a lawyer, but I have spent two decades working on trying to understand public policy, and how both formal and informal processes – economic, political, technical, social and cultural (especially religious) – help shape and change states and societies. The discussion about the current Supreme Court’s increased judicial activism is a public policy issue, and can be discussed, critically and honestly, without any risk of betraying contempt for any individual or institution, much less the Supreme Court of Pakistan.

The judiciary in Pakistan has enjoyed over a decade of unprecedented public trust and confidence ever since a mass movement for the restoration of the judiciary under then Chief Justice Iftikhar Chaudhry that began on March 9, 2007. This great surge in public confidence has endured across the terms of Justice Chaudhry himself, as well as chief justices Jilani, Nasir-ul-Mulk, Khawaja, Jamali and now Chief Justice Nisar. The foundation for this trust was the clarity and coherence of the key proposition put forth by the lawyers’ movement: judges in Pakistan are subservient only to the constitution, and are the ultimate guardians of the law as it exists. They are not subject to the orders of any other individual or body.

The potency of the lawyers’ movement was not just the moral clarity of this proposition. It was also informed by the context in which this proposition was being made. Iftikhar Chaudhry did not stand up to a weak and politically compromised elected leader. He stood up to a military dictator flush with the ego and brute physical power that comes with taking over the entirety of the military, the civilian bureaucracy and a wide swathe of the political capital of the country. Then-Chief Justice Chaudhry stood up to Gen Pervez Musharraf at the peak of the latter’s powers. The lawyers and judges that stood with Chaudhry were not stupid, even if many outsiders did not realise back in 2007 how limited Iftikhar Chaudhry was. They knew full well that Justice Chaudhry was not the greatest legal mind of his generation, and that many of his personal limitations may serve to undermine the judiciary. But they lined up behind Chaudhry and the lawyers’ movement because it represented an unprecedented opportunity to challenge Pakistan’s institutional disequilibrium. The decades prior to March 2007 had marred the judiciary, rightly or wrongly, as a malleable institution, easily manipulated or controlled by the most powerful institution in the country: the Pakistani military.

The lawyers’ movement, above all other things, erased this slur from the array of legitimate criticisms. The rate of case disposal, the quality of justice and the nature of bar and bench relationships, which constitute more meaty content in any discussion about the judiciary, were barely ever even in the widest-lens sight of the lawyers’ movement. The one-point agenda that drove the movement was simple: no one talks to a chief justice like Musharraf spoke to Chaudhry on March 9, 2007. No one gets to fire judges on a whim. No one gets to control the judiciary, but the constitution of Pakistan.

And thus, Chaudhry’s standing up to Musharraf and the subsequent lawyers’ movement engendered public trust and confidence in the judiciary as an overarching macro-level institution in Pakistan, and this has largely stayed the same or increased since then. Gallup Pakistan has repeatedly indicated that a generational shift in trust in the judiciary has taken place, with one report indicating an almost twenty-point increase in Pakistanis’ trust of the courts between 1982 and 2014. In March 2013, a Pew survey showed that 58 percent of Pakistanis believed the courts represented a good influence on national life, compared to only 24 percent for the national government, 23 percent for the police, and only 15 percent for then president Asif Ali Zardari. More recently, a Gallup Pakistan survey in March 2017 showed that whilst only 21 percent of all respondents expected an unfavourable outcome of the Panama case for Nawaz Sharif, over 65 percent of respondents believed that, whatever the outcome would be, people would accept it.

Unlike what many believe to be the case, Nawaz Sharif possesses an incredibly sharp mind, especially in matters of the acquisition, sustenance and deepening of power for himself. This sharpness has been on full display since he was disqualified on July 28, 2017. Sharif and his supporters posit the civil-military divide as the principle contradiction of Pakistani state and society. Yet since his disqualification, Sharif’s ire has barely focused on Rawalpindi. Instead, he has deliberately and consistently baited the judiciary on every single occasion on which he has had a chance to speak publicly. Outside Peshawar, with a large crowd of Amir Muqam supporters, the Sharifs went so far as to bait the courts using Daniyal Aziz and Talal Chaudhry – both under scrutiny for contempt of court – as props. Why is Sharif targeting the judiciary?

The post-Chaudhry Supreme Court has been a model of restraint and relative consistency. Some brave decisions have been made by the Supreme Court, and some more expected, but almost all decisions of the Supreme Court have enjoyed wide acceptance. The institutional disequilibrium in Pakistan between the military and all other institutions has neither been challenged very robustly (and it is not necessarily the courts’ job to do this), nor has it been deepened in the last several years. In short, the judiciary has been able to do its job without too much pressure, and whilst maintaining a historically unprecedented credibility in the wider so-called ‘court of public opinion’.

In the digital age, this court matters to all institutions and individuals. Ideally, it should not. But in reality, each one of us is human. Those of us that have been blessed by God to serve the public interest in any way shape or form tend to be particularly sensitive about the court of public opinion. Ideally, we should not, but we are all human. Could Nawaz Sharif’s plan be to affect how judges are conducting the courts? I believe this is exactly what Sharif is trying to do – by constantly baiting the Supreme Court to act in ways that will undermine the long and unprecedented run of credibility and authority that it has earned not just on the basis of the words of the constitution, but on the basis of the court of public opinion.

In previous years, this would have been easier. But the Sharifs are trying to smear a Supreme Court led by judges of impeccable legal minds and unimpeachable integrity. The dignity of the courts is not in wrestling with those beneath them in the formal and informal hierarchy of this country. Press statements and public opinion are the domain of politicians. Court decisions are the domain of judges. The very core purpose of the Sharifs’ circus is to contaminate the courts. The continued and increasing prestige and credibility of the judiciary in Pakistan is in dispensing justice, without discrimination. Not in talking about it.

The writer is an analyst and commentator.