Judicialisation of politics, politicisation of the judiciary
The Supreme Court’s (SC’s) verdicts in the Imran Khan, Jahangir Tareen and Hudaibya cases, far from settling the dust that had been kicked up around these issues, has further aroused controversy. The let off for Imran Khan, disqualification for life of Jahangir Tareen and the rejection of the National Accountability Bureau’s (NAB’s) appeal against the Lahore High Court’s (LHC’s) quashing of the Hudaibya reference against the Sharifs all came on the same Friday, December 15, 2017. Not unexpectedly, while it welcomed the Hudaibya decision, the PML-N criticised the clean chit to Imran Khan as double standards. The PTI welcomed the Imran Khan decision while it criticised the disqualification of Tareen as based on a mere technicality, an interpretation of the trust deed whereby his Pounds five million property in the UK was held in his children’s name.
While the political parties in question gave their predictable responses, the legal community appeared divided in its view of the jurisprudence underlying these cases. Independent members of the legal fraternity found the verdicts smacked of discrimination, contradictoriness, and worst of all, a clumsy effort to indulge in some kind of ‘balancing act’. Those members of the legal fraternity who had consistently supported the SC’s pronouncements since the Panama papers case that led to the disqualification of sitting prime minister Nawaz Sharif were found struggling to reconcile these ‘flaws’.
Nawaz Sharif underlined what he saw as dual standards of the application of the law. He accused the SC of acting as the defence lawyer of Imran Khan, fighting on his behalf. Imran Khan crowed about his being cleared on the basis of 60 documents presented before the SC showing the money trail leading to his Bani Gala property. His close henchman these days, the tonga-party leader Sheikh Rashid, not only credited Imran Khan’s divorced ex-wife Jemima Khan with rescuing Mr Khan, but went so far as to suggest that Imran should remarry her! Critics of the outcome pointed out that Imran Khan was cleared despite having admitted to owning an offshore company that he had failed to declare on the grounds, according to the SC, that he was neither a shareholder nor a director of the company.
Jahangir Tareen accepted the decision of the SC with relative good grace, except for the proviso that he stands disqualified on flimsy technical grounds. He failed to see the irony in the fact that Nawaz Sharif has had the exact same complaint about the manner in which he was ousted by the SC on the basis of an Aqama (work permit). Both Tareen and Sharif were found by the SC to have failed to declare their ‘assets’ and indulged in falsehood before the court and were thus disqualified as not sadiq and ameen (honest and truthful) according to Article 62(1)(f) of the Constitution. Perhaps the time has come for parliament to revisit the sword of Damocles now hovering over politicians’ heads in the shape of Ziaul Haq’s imposed Articles 62 and 63.
While this ‘storm’ of criticism from one or the other side of the political divide was whirling over our heads, the honourable Chief Justice of Pakistan (CJP) Justice Saqib Nisar used the occasion of an address to the Bar Council to launch into a defence of the independence of the judiciary and denial of any pressure from any quarter to become part of some ‘grand plan’. This unprecedented public mea culpa was delivered in a ‘populist’ style that may or may not have helped the judiciary’s cause, but did not bring any credit to the reputation, dignity, respect and credibility of the high office of the CJP or the judiciary. Long forgotten in our skewed history is the time when judges spoke only through their judgements. The populist zeit geist of our times has the judiciary too in its grip. Maryam Nawaz summed it up well by saying: “Justice speaks for itself. It does not need to be justified through public speeches and issuing additional notes.”
The CJP’s description of the judiciary as the ‘baba’ (wise elder) was not dignified. Like our traditional elders, the CJP wished us to have faith in the integrity and independence of the judiciary. However, the PPP, despite not being a party to the above cases, did not let that pass without reminding the CJP of the less than glorious track record of our judiciary. It asked Justice ‘Baba’ to explain why the judiciary had given decisions in favour of each military dictator, providing constitutional cover to each martial law since the Maulvi Tameezuddin case (regarding the dissolution of Pakistan’s first Constituent Assembly), and pronounced discriminatory, contradictory verdicts throughout our history. How, the PPP asked, could it or anyone else then be expected to have faith and trust in the judiciary?
The CJP’s ill advised defence of the judiciary on a public platform has exposed it to more controversy. After the movement that restored the superior judiciary, the widely held expectation was that it would uphold its independence, the rule of law, address the judicial system’s flaws such as corruption and inordinate delays, put its inglorious past behind it and not only do justice but ensure that justice is seen to be done. Unfortunately these hopes have not been fulfilled. Contrary to the perception of ‘balance’ in its recent verdicts starting from the Panama case, it is arguable that the judiciary has frequently lost its balance. Hence the criticism being directed its way, more and more of late. This criticism emanates not only from politicians who lose their cases, eminent lawyers and legal luminaries too have expressed serious disquiet at the trends in our jurisprudence. The seeming swing from extreme strictness of interpretation in some cases and laxity in others has opened a Pandora’s box.
Political issues should be dealt with by parliament, not brought to the judiciary. The judiciary in turn should refrain from entertaining political cases. Not to do so has resulted in the ‘judicialisation’ of politics and, willy nilly and unconsciously, the perceived politicisation of the judiciary. This is neither good for politics nor the judiciary nor the country. All state institutions, including the judiciary, need to return to the values of restraint within their given constitutional mandate and not arrogate to themselves the mantle of all-knowing wisdom and infallibility.