COMMENT: Tough challenges facing Khosa

Updated July 12, 2019

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The one-two punch recently delivered to Pakistan’s judiciary means that Chief Justice Khosa's legacy now depends, almost exclusively, on how he handles the Justice Faez Isa reference and the allegations against Judge Arshad Malik. — DawnNewsTV/File
The one-two punch recently delivered to Pakistan’s judiciary means that Chief Justice Khosa's legacy now depends, almost exclusively, on how he handles the Justice Faez Isa reference and the allegations against Judge Arshad Malik. — DawnNewsTV/File

ONE feels for Chief Justice Khosa. After the flash and dazzle of his controversial predecessor, he quietly focused on judicial reform, developing criminal jurisprudence and — above all — restoring sobriety to the apex court. But the one-two punch recently delivered to Pakistan’s judiciary means that his legacy now depends, almost exclusively, on how he handles the Justice Faez Isa reference and the allegations against Judge Arshad Malik. All else shall be forgotten.

But more is at stake here than Justice Khosa’s legacy. The Supreme Court (SC) — and all its judges — are now at crossroads. They must navigate through the dark clouds that hang around their institutional credibility and public legitimacy as well as the positions they shall occupy, collectively and individually, in the public pantheon.

For much of Pakistani history, the judiciary has merely been a tool for others with real power. Its independent achievements have come, mostly, in times and in spaces voluntarily ceded by the real wielders of power. Following Iftikhar Chaudhry’s restoration, however, it seemed the judiciary had finally assumed its own seat at the table of power. Of course, such a seat often involves some give and take with other players (whether termed as “realpolitik” or “judicial pragmatism”). Nonetheless, it came to be perceived as possessed of a new mindset that would no longer readily perform the bidding of others.

The manner in which the judiciary responds to the Justice Faez Isa reference and Maryam Nawaz’s recording of Judge Arshad Malik’s “confession” is likely, in the public eye, to be viewed in a binary frame: has the judiciary acted to protect its judicial independence and legitimacy or has it weighed in on the side of “realpolitik”?

CJP’s legacy depends on how he handles Justice Faez Isa reference and the allegations against Judge Arshad Malik

For some time now, serious questions are being asked about the integrity of judges, the independence of their decision making, their politicisation and ability to resist the pressures of intelligence agencies. What was previously whispered in bar-rooms is now being shouted out by pedestrians on the chowks of Dera Ghazi Khan (to employ Justice Khosa’s turn of phrase). If our judiciary is to retain any semblance of dignity, it can no longer continue its posture of studied ignorance.

The questions do not start and end with Judge Arshad Malik.

After the first round of Nawaz Sharif’s disqualification case, the SC registrar made a FaceTime call to the SECP chairman directing a specific officer to be nominated to the JIT. The SC order directing constitution of a JIT, however, did not specify any names. So on whose instructions was the SC registrar acting; why and how was that particular officer selected; and most crucially, since when does the SC communicate orders through encrypted internet calls?

For that matter, why does the SC now routinely appoint ISI and MI officers to JITs investigating politicians? What is their expertise in this regard and under what law or provision of the Constitution do they derive their remit to conduct criminal investigations?

Why did a high court judge — the erstwhile Justice Shaukat Siddiqui — publicly state that the ISI had promised to make him Chief Justice of the Islamabad High Court if he rejected Nawaz Sharif’s petition and that, upon his refusal, he was removed from the bench hearing the petition?

Upon being questioned by the Supreme Judicial Council (SJC), he not only reiterated the allegations in writing but even gave specific dates on which three senior intelligence officers allegedly visited his official residence. Why then, did the SJC summarily remove Shaukat Siddiqui without allowing him to lead supporting evidence? How could the SJC conclude that the real question was not whether Siddiqui’s allegations “were correct or not” but whether they should have been made publicly? In the SJC order — authored by Justice Khosa himself — even the notion that intelligence agencies could influence the judiciary is termed “naive”.

Read: Justice Shaukat Siddiqui removed as Islamabad High Court judge

It seems less naive today. Perhaps an earlier probe into the remit of intelligence agencies and their interference in judicial affairs could have avoided Judge Arshad Malik’s embarrassing “confession”? Notably, while the bewildered judge called the video “fake”, he also simultaneously (and confusingly) called it “a mesh” of different instances presented “out of context”.

But assume, for one instant, the video is proved genuine. What does that say for the Supreme Court judge tasked with monitoring the NAB references against the Sharifs — ostensibly to protect the process against any outside influences?

Perhaps a timely probe could have also saved the blushes of retired (but still vigorous) Justice Javed Iqbal? It is telling that the government did not deem it fit — in that case — to submit the NAB chairman’s video for forensic testing. How is it, however, that the SC also deemed it unnecessary to probe whether a video showing the head of our premier prosecution agency engaging in sexual banter with the wife of an accused person was genuine or not and whether he was left too compromised to be able to conduct his functions fairly and independently?

Today, in public discourse and bar-room discussions, even upright judges are being viewed under a cloud of suspicion on the one hand whilst living in fear of scandalisation on the other. With more foresight, and courage, this sorry pass could have been avoided. For better or for worse, our judiciary remains the last hope for rule of law in Pakistan. Maybe it is for a full court reference and some collective brain-storming to find a way out.

The writer is a Supreme Court lawyer

Published in Dawn, July 12th, 2019