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The midnight hour

Updated February 09, 2019

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I HAVE often wondered what it must feel like to be one of the two most powerful men one day, and wake up to the reality that power has slipped away at midnight.

This is what happens to the army chief and the chief justice on retirement. Both of them wield enormous, unchecked power, and are answerable to nobody. But when they doff their uniform and robes, they abruptly cease to be the centre of media attention, and their vast domain is reduced to the walls of their homes.

Take a look: How Justice Saqib Nisar became Herald's Person of the Year 2018

True, they are sent off with a large number of perks and benefits, but their achievements — such as they are — are soon forgotten. Some have formed political parties to stay relevant and in the public eye. Few remember Gen Aslam Beg’s think tank, Friends. And who recalls his Awami Qiyadat Party? The same is true of Iftikhar Chaudhry’s Pakistan Justice and Democratic Party of which it was said that the membership could fit into a tonga.

The broken system of justice should have been the focus.

Now that Saqib Nisar has hung up his judicial robes after years of extraordinary interventions into virtually every aspect of executive jurisdiction, it remains to be seen how he will spend his twilight years as a nobody. He is on record as offering to live in a tent to guard the equipment that he had expected to arrive to construct Mohmand dam. But that project has run into a slight problem as the donations total a mere Rs9 billion as against an estimated cost of around a thousand billion. At this rate, it will take 100 years to collect the required money, even assuming that the price tag will not escalate in this period. So he need not pack his camping gear just yet.

Explore: Judicial independence is vital for democracy but judicial activism can be counterproductive

For years now, there has been endless talk of accountability. Politicians and bureaucrats have been accused, arrested and jailed for misusing their positions and power to make money. But what about the generals who drag us into pointless wars with their massive cost in blood and treasure? Or judges who block the privatisation of loss-making state enterprises, thereby forcing taxpayers to cough up hundreds of billions in ongoing subsidies?

I hope Mr Nisar has cultivated a hobby, as retirement from a powerful position demands a painful transition to real life. He can, of course, re-read the headlines he made during his tenure through his constant suo motu interventions. Apart from his dam initiative, he inspected hospitals and read the riot act to the owners of private schools. In between, he raised the price of bottled water, jailed a former prime minister, and inserted the Supreme Court in Pakistan’s political arena. So when he retired, the collective sigh of relief from opposition politicians as well as bureaucrats reached me all the way to Sri Lanka.

Clearly, Mr Nisar’s heart is in the right place: who doesn’t think children shouldn’t have clean drinking water? Or that the police ought to stop human rights violations? In fact, life for most Pakistanis is one long violation of basic rights.

Chief Justice Saqib Nisar: For judging too much

But the way to improve the situation is surely through strengthening state institutions, not weakening them. By issuing ill-informed rulings and orders about everything from PIA’s logo to the quality of milk, the executive was pushed into a corner. At the drop of a hat, he sent the accountability bureau to hound educationists and civil servants who had been accused on TV chat shows.

It is no secret that our bureaucracy is inefficient and often corrupt. But micro-managing government departments with insufficient knowledge of how the system actually works is a recipe for disaster. This shotgun approach to management has left no lasting solutions, but it has ruined careers and scarred our political landscape.

However, my biggest objection to his hyperactive activism is that it distracted him from his basic function of supervising the workings of the judicial system. By his own admission, he achieved no improvements in the functioning of the lower courts where close to two million cases are pending.

Judges routinely fix dozens of hearings for a day, and their courts are full of lawyers, witnesses and plaintiffs in cases that are bound to be postponed. Thus, judgements can take a generation to be delivered.

Know more: Over 1.8 million cases pending in Pakistan’s courts

When the Pakistani Taliban took over Swat a dozen years ago, they were initially welcomed because they delivered quick justice, something our courts have never been accused of. In fact, people often refuse to admit they witnessed a crime for fear of being sucked into our court system, and then be accused of contempt of court if they missed a hearing.

This is the reality of our lower judiciary — and top courts are not much better. Had Saqib Nisar wished to leave a lasting legacy, he should have tried to fix this broken system. Instead, he played to the gallery, and all of us are worse off as a result.

irfan.husain@gmail.com

Published in Dawn, February 9th, 2019