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In search of a legacy

Updated January 02, 2019

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Representing the institutions all through the year were Army Chief Gen Qamar Javed Bajwa and Chief Justice Saqib Nisar. ─ Photo courtesy Supreme Court
Representing the institutions all through the year were Army Chief Gen Qamar Javed Bajwa and Chief Justice Saqib Nisar. ─ Photo courtesy Supreme Court

With so much having happened during the year – a general election, the conviction of a former prime minister and a party’s first time in power – 2018 still belongs to Chief Justice Mian Saqib Nisar.

Amid some of the biggest political news to come out of Pakistan, the man in robes (and his colleagues) managed to hog headlines and attention.

After Iftikhar Chaudhry, the country thought it had seen all that judicial activism had to offer, but that was not the case. Justice Nisar proved that there was much further a ‘caring’ judiciary could go. Chaudhry showed the way with how Court Room Number One could create news by calling in officials, berating them and how this also went down well with the ‘public’.

Justice Nisar learnt the lesson well. The officials were soon being called back to the same room for a similar rap on the knuckles. But Justice Nisar wasn’t content with this; he wanted to tread his own path and he did – literally.

Justice Nisar created headlines not just in the court rooms, but by visits all over the country. There were visits to hospitals, to filtration plants, to lower court rooms (remember the judge he told off and then flung his phone) and to prisons. And everywhere that the chief justice went, the cameras were sure to follow.

Conservatively dressed in a suit and his trademark dark glasses, the chief justice became a familiar figure on our television screens as he gave us his version of the lone ranger on a mission to fix state and society – previously, only the former chief minister of Punjab had prowled the streets thus. Indeed, this may well be the defining feature of the judicial activism of Justice Nisar; his legacy as the chief justice.

“Each chief justice finds a way to define his legacy,” says a senior lawyer. It is what they are looking for once they end up as the big guy in Court Room Number One. The senior lawyer points out that Justice Tassaduq Jillani, one of the reticent judges in recent times who succeeded Chaudhry, found his ‘legacy’ in his judgement on the rights of minorities. “He used international forums to draw attention to his judgement.”

For many, the search for a legacy has motivated Justice Nisar but with the desire to distinguish himself from Chaudhry.

While Chaudhry is remembered for his dismissals and restoration as well as his use of Article 184(3), his suo moto headlines were mostly in the realm of politics; NRO, missing people, LNG, Hajj scandal, Memogate and disqualification of a sitting prime minister. It was a legacy inextricably linked with two political rulers – first Pervez Musharraf and then Asif Ali Zardari.

But in terms of larger administrative issues, Chaudhry’s interventions were rather limited. He tried to set sugar price shortly after his second restoration, failed miserably and stayed away from such issues afterwards.

Justice Nisar, however, had no such qualms. Aside from the PMLN-related cases, which were few in number but huge in political impact, the Justice focused on multiple cases of larger public interest.

If in the first week of January he took suo moto notice of the torture of Tayyaba by a lower court judge (human rights cases, in the Pakistani context, have always been acceptable versions of judicial activism), by the middle of the year, he had decided to set up the Dam Fund, and by the end of the year he had taken to judging school fees. In between, the quality of drinking water, population planning and health had all become his concerns.

It was as if Justice Nisar has suddenly woken up to the crises facing the society and didn’t think there was time enough for the other segments of society, or the politicians, to come forward. The judge became a saviour in a way Chaudhry had probably not even dreamt of.

And time and again, he stepped onto the Executive foot in a manner that even Chaudhry had not; the abolition of the tax on phone cards being a case in point.

“This is Justice Nisar’s reaction or rather answer to Chaudhry,” says a lawyer in Islamabad. “Don’t forget that Saqib Nisar was in line to become the chief justice of the Lahore High Court but he was robbed of this by Chaudhry. He is now charting his own path in the Supreme Court by taking up the causes of the very people who had supported Chaudhry but were disappointed by him – the middle class is one example.”

For this lawyer, Justice Nisar’s visits to the hospitals and the issue of school fees were part of an effort to champion those who had been let down by Chaudhry.

But there is by no means a consensus on what motivates Justice Nisar. Is it an effort to distinguish himself from Chaudhry? Is it simply a means to find a legacy as do all chief justices? Or is it something else?

The answer, however, may not lie in the politics of the court alone. With a judiciary such as ours, there is also the larger politics to contend with. As with Chaudhry, Justice Nisar’s activism began after the assault from the PML-N during the Panama Papers case.

“In his earlier period, Justice Nisar had acted in line with his reputation as a textual judge; his judgement in the Mustafa Impex case, in which he authored that the federal cabinet, and not the prime minister, was authorised to take decisions was based on a literal and textual reading of the Constitution,” says Waqqas Mir, a barrister practising in Lahore. “This is how he was known – as a conservative judge.”

But somewhere along the line the conservative judge decided to occasionally leave aside his books and chambers. And his decision to do so coincided with the attack on the Judiciary by the PML-N in the wake of Panama Papers.

It is as if he felt that in case the ruling party resorted to an attack on the Judiciary – be it legal or more – it could perhaps be deflected if the superior judiciary had the weight of the people behind it. This is rather similar to the activist judge in Chaudhry, who, too, emerged after his first restoration in 2007.

Prior to that, there was little to his credit except the Steel Mills judgement (and we all know where that had come from).

But the attack from the Executive made him turn populist, which also brought him back to Court Room One.

Perhaps the fear of a similar fate prompted Justice Nisar to turn populist. Or, as humans rarely are prompted by one factor alone, it could be a combination of the larger politics plus the need for a legacy.

There are also those who believe that the civil-military friction has provided the Judiciary unfettered leeway to move into the jurisdiction of the Executive. Who knows?

That Justice Nisar’s activism was different and more aggressive than Chaudhry’s can at first glance be attributed to the vociferous media and political resistance at the time of the latter.

When Chaudhry’s intervention in the sugar prices failed, the coverage from the then lively press, especially the news channels, was unsparing. And for a chief justice who owed so much to the cameras, perhaps Chaudhry paid heed to the message.

Since then, the media has been reined in. Amid pressure in general, concern over media excesses, and an assertive Pemra, criticism of the Judiciary’s behaviour and its alleged excesses is rather muted.

Just consider what the reaction would have been if Chaudhry had in one stroke abolished a tax. But at a time of a balance-of-payment crisis and a larger economic turmoil, the media discussion of the court’s impact on an already shaky economic is barely there.

The media’s relative quiet doesn’t exist in a vacuum. Justice Nisar also has a more docile political landscape. The PML-N miscalculated the ramifications of its ham-fisted fight with the Judiciary and beyond.

Its direct verbal attacks on the Judiciary simply earned it the courts’ wrath and little political capital. And in the process, they made few friends. In contrast, the PPP handled the challenge from the Judiciary rather politically, resorting to the bars, empowering them and playing up the dissident voices within.

Remember the Supreme Court Bar election that was fought and won by Asma Jehangir. “The PPP put its weight behind Asma in that election,” recalls a Lahore-based lawyer.

The bars provided some modicum of a check on Chaudhry, and became a vocal critic. Even the Malik Riaz episode that also involved CJ’s son Arsalaan was linked to the ruling party. Small incidents in themselves, they all cumulatively restrained the SC.

In hindsight, without entering the fray and hence taking more blows than necessary, the PPP managed to politically weaken one of its threats.

The PML-N was too busy lashing out at the courts to even consider other strategies which could have proved less taxing on themselves.

And as a result, Justice Nisar faces no resistance whatsoever – one reason he has ended the year by taking on the private schools; a step that has horrified those sections of the middle class which believe that their children’s education is far too precious to be tinkered with.

While moving beyond Chaudhry’s legacy, Justice Nisar didn’t forget to keep employing what had worked for Chaudhry: interference in transfers and postings to create headlines and to keep governments in check.

In this regard, Justice Nisar has given the PTI considerable grief too – and forced a federal minister to resign. And while many feel that without the check of the Judiciary, governments would ride roughshod, overrule the bureaucracy and abuse power without fear, the trend has its fair share of critics.

“The SC-mandated water commission has usurped the government’s powers to make appointments, transfers and postings,” moaned a Karachi-based lawyer. And recently it was reported that the chief minister of Sindh in an interaction with Prime Minister Imran Khan pointed out that Sindh’s police was the most independent because since the AD Khawaja judgment, the provincial government has no say in any police appointment.

Such powerlessness – whether or not it is Sindh-specific – raises questions about the role of the Executive and the Judiciary. But there is also a larger process at work which worries the critics.

“The environment in Court Room One for the first couple of hours is dominated by suo moto cases where officials are called in and summarily dismissed and orders are announced. In the second half of the day when routine cases are being heard, the judges find it hard to listen to the nuanced legal arguments that require time. They want to treat lawyers as summarily as they deal with government officials,” says a lawyer wearily, who is a supporter-turned-sceptic of Article 184(3).

No wonder then that many look forward to the change due in Court Room One early in 2019.

But despite the rumours about the concerns of some judges at the recent streak of activism exercised by Chief Justice Mian Saqib Nisar, no one can predict that his retirement will put an end to the trend.

The year 2019 will address the quandary … even if slowly.