CHIEF Justice of Pakistan Justice Saqib Nisar speaking at a reception dinner hosted in his honour by the Lahore High Court Bar Association on Friday claimed that judiciary was working independently and impartially and it did not need any expression of solidarity or help from anyone. He reportedly said “A trend of showing romance towards judiciary is getting viral. We do not need solidarity or help from anyone, except for lawyers. No one should think of politicising the institution of judiciary. We are honoured and respected because we are independent and impartial” Nobody in his right mind could take an issue with what the CJ has said because that is how judiciary is expected to conduct itself. The judiciary is the most sanctimonious institution of the state on which its edifice is built and no society and state can make progress without an impartial and independent judiciary dispensing justice strictly according to the law and the constitution.
The CJ ostensibly felt the need to make this statement in the backdrop of the attempts by the PTI chairman Imran Khan to politicise the judiciary by persistently expressing support for it and even hold agitation in its favour if the PML (N) allegedly continued to denigrate the judiciary. He and head of the one-man party Sheikh Rashid have been particularly very vocal on the issue ever since the SC delivered a verdict on Panama case and the reaction shown by the PML (N) on the decision. What the CJ has done now should have been done much earlier to dispel the permeating view of some sort of connivance between Imran Khan and the judiciary. Unfortunately the public perception is not without credible portents. If one forgets what transpired during the formation of JIT and the proceedings in the Panama case even then it is hard to turn one’s back on what the renowned jurists and constitutional experts said about the verdict disqualifying Nawaz Sharif and what they opined about acquittal of Imran Khan. The majority of them believed that the decisions were not marvels of jurisprudence as the judiciary had pummeled the internationally recognized principles of jurisprudence.
The impression that judiciary has been very accommodating and tolerant of the indiscretions committed by Imran Khan was also reinforced by SC having neglected a bombshell dropped by Imran Khan when he in an interview with a private channel admitted that he had taken the Panama case to the apex court on the urging of Justice Asif Saeed Khosa and the former CJ. The SC simply issued a rebuttal through its registrar that Justice Asif Saeed Khosa had never met or called Imran Khan. In view of the denial issued by the SC, two things became absolutely necessary. One was that if Imran had lied then he had committed contempt of the court by maligning the honourable judge of the apex court and the future CJ and should have been held accountable for it. The second thing was that if Imran was telling the truth then it was a matter of grave concern as it proved complicity of the court in the Panama Leaks case. The court should have ordered a proper investigation to clear its position and letting the nation know the ground realities. Regrettably it was never done.
Those who believe that the court was not impartial in Panama case also point out decisions of the judges of the apex court, even given by Justice Asif Khosa wherein he himself had questioned the applicability of article 62. It has been pointed out that in Ishaq Khan Khkwani case (PLD) 2015 SC 275) while dismissing the appeal seeking disqualification of Nawaz Sharif, Justice Khosa added an additional note reiterating that many provisions of Article 62 were not amenable to legally enforceable standards. Referring to Article 62(1)(f) he opined “ It is proverbial that Devil himself knoweth not the intention of man. So why to have such requirements in the law, nay the constitution, which cannot even be defined, not to talk of proof”. People say is it not ironical that the former Prime Minister had been dismissed under the same clause contradicting their own arguments in that particular case, which was absolutely untenable. The constitutional experts and majority of the people believe that the court should have observed restraint in an issue which was extremely politicised.
The fact of the matter is that nobody in this country, not even the judges, the generals, politicians and other public office holders qualify as ‘ sadiq and ameen’ as per article 62 and 63. The reality is that people cannot be turned into ‘ sadiq and ameen’ through selective judicial decisions. The entire society unfortunately is rotten to the core as far as morality is concerned, a reality nobody can deny. Under the circumstances there is no justification for keeping the articles 62 and 63 as part of the constitution and allowing the powerful institutions to victimize the vulnerable classes through their selective use. The politicians made a big mistake to retain them while cleansing the constitution of the aberrations introduced by the military dictator through the eighteenth amendment. They as a class would have to give serious thought to the removal of these clauses from the constitution as well as collectively resist any attempt to overlord the parliament and the executive by the other institutions.
— The writer is freelance columnist based in Islamabad.