The only real challenge to the judiciary’s anti-democratic authoritarianism and its long-lasting damage
On October 10, 2018, members of the non-funded, non-partisan, secular and rights-based pressure group, Women’s Action Forum (1981), and other pro-democracy citizens filed a reference against the 25th Chief Justice of Pakistan, Mian Saqib Nisar. The complaint was submitted to the Supreme Judicial Council under article 209 of the Constitution at the Supreme Court of Pakistan in Islamabad. A total of 98 signatories have prayed that; The SJC may find that the Chief Justice of Pakistan, Mian Saqib Nisar has been guilty of misconduct as prescribed under the code of conduct of judges of the Supreme Court and the High Courts.
The complainants have reasoned that Pakistan’s history has been marked by delusions of grandeur and a messiah complex that have led the military and judiciary to repeatedly violate the principle of the separation of powers. They argue that former CJP, through his remarks and actions, has indulged in conduct unbecoming of a judge, politicised the judiciary, violated the principles of the separation of powers, and demonstrated negligence and the inability to adjudicate in any independent, neutral, non-partisan and impartial manner. He failed to keep his office free of controversy or to discharge the mountainous heaps of pending cases that plague the judiciary. He attempted to legislate like a politician, execute like a bureaucrat and commandeer like a military chief. He sought media attention like a celebrity.
The reference lists at least 25 blatant violations of the code of conduct by the CJP. These violations have been carefully organised into categories that cite the multiple occasions, speeches and behaviour that prove his multiple violations. A thick set of attached annexures provide corroborating evidence. These are familiar to all since the CJP was partial to advertising his opinions directly through the media. His flippant comments have offended many, humiliation of peers and lawyers have reduced the honour of the judiciary, and his solicitation of funds for national projects have created a sub-nationalist backlash that had taken years to placate.
The complainants filed the reference to safeguard the Constitution, ensure that future generations are not held hostage to individual vagaries and egos and because state officials must be held accountable against gross corruption of power.
While preparing the reference, the non-funded petitioners received little or no help and had to prepare with no resources except their own determination, commitment and hard work. The CJP had already unleashed the courts onto a path of political witch-hunts, contempt proceedings and even treason cases to silence the free media. The fear tactics worked -- even progressive lawyers advised civil society to be defeatist and wait for the CJP to retire. Some suspected the ‘timing’ of this reference, even though they had been at the forefront of the Lawyer’s Movement for the restoration of former chief justice, Iftikhar Chaudhry, who had been deposed by General Pervez Musharraf. But even after a ‘deal’ was brokered with Benazir Bhutto in 2007 and the sensitivity of ‘timing’, the same lawyers had continued to protest their cause.
The Lawyers’ Movement is officially buried. Only one principled senior lawyer signed the reference and another courageously offered advice over the technicalities of the reference. They stand apart from those who refused even use of their offices for photocopies or other logistics for this unfunded project. Worse, many opportunist senior lawyers have pandered to the CJP’s ego and praised his person in court while arguing their cases and played to his biases as revealed in his public comments on Hindus, women and civilian politicians. This says as much about the carpetbagger legal community as it does about the fragile egos of the judiciary. These are the same lawyers who do not hesitate to lecture civil society about their flaws, inadequacies and strategic failures.
Mainstream media outlets refused to carry articles or letters protesting the CJP’s conduct.
Many public intellectuals who mock and joke about the CJP on social media, abstained from signing the legal reference. Senior journalists and progressive novelists cited ‘conflict of interest’ as their excuse but never wrote about this form of protest even later. Even human rights activists and consultants said they were constrained by the policies of their donor agencies and some claimed trivial excuses, such as, the length of a twelve and a half page reference which lawyers agree is an excellent document.
Most of the signatories in the reference are members of WAF, members of the rural-based left-oriented political party, Sindhiani Tehreeq, the Malir Bar Association (the only legal institution that supported the reference) and a few academics from the Lahore University of Management Sciences, other than some senior academics across the country. The majority of petitioners are women. Despite the risks, senior politicians and human rights defenders Bushra Gohar, Afrasiab Khattak and Farhatullah Babar supported the reference, signed and assisted in filing it.
The CJP’s term has ended now. Since the filing of the reference last October, there has been no response from the Judicial Council. One day after the WAF reference was filed, the judge of the Islamabad High Court, Shaukat Siddiqi was removed from office on the recommendation of the Supreme Judicial Council. It seems the wheels of justice on the accountability of some judges churn faster than for those more senior on the benches.
Many thoughtful lawyers, journalists and analysts are now writing their disapproval but the only befitting legacy for Chief Justice Saqib Nisar is this reference that was filed while he was in office. It has been the only real challenge to the judiciary’s anti-democratic authoritarianism and its long-lasting damage. Those who took up this cause and signed it have been on the right side of the history of resistance politics.