Judicialisation of politics, politicisation of the judiciary
Rashed Rahman
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.
rashed-rahman.blogspot.com
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