Imran in the dock

But who’ll judge the judges?

Mamnoon in the process of being elected president has inflicted a lot of collateral damage. The PTI chief Imran Khan is in the dock for committing contempt of the Supreme Court. And the CEC (Chief Election Commissioner), Fakhuruddin G Ibrahim has resigned after coming under severe criticism for abdicating responsibility with regard to the date of the presidential election.

The CEC passed the buck to the apex court, which rather hurriedly agreed to the plea of the ruling party to reschedule the presidential election enabling Sharif to proceed for Umra and spend the 27th day of Ramadan in Saudi Arabia. Both PTI and the PPP and a number of prominent jurists bitterly complained that the apex court did not give all the stakeholders a chance to be heard before giving its verdict.

Imran Khan was however singled out for a contempt of court notice. He termed the role of the Election Commission as shameful in the general election as well as the presidential poll. He claimed that the courts have ‘double standards’.

The PTI chief vowed that he would rather go to jail but not apologize. At the hearing though, his demeanour was conciliatory albeit not obsequious. In the same vein the judges on the bench initially handled Imran with kid gloves. Later their stance somewhat hardened.

During the proceedings, Justice Jawad S Khawaja remarked that judges were like fish in a glass bowl. Since they are unable to respond, criticism against them should be couched in appropriate language.

The honourable judge has a point. But the higher judiciary is neither faceless nor without a voice. On the contrary judiciary in the post Musharraf period – a byproduct of struggle for restoration of democratic institutions in the country – has been a success story.

Nevertheless higher judiciary’s assertiveness and independence has generated a lot of controversy. Perhaps Pakistan’s apex court is one of the most proactive judiciary in newly liberated democracies.

As the saying goes, uneasy lies the head that wears the crown. The judiciary has ruled the roost in our flawed democracy. Some jurists and critics in the media, however, have asked a pertinent question: Who will judge the judges?

The judiciary is not running a popularity contest. Nonetheless it should be mindful of public criticism without necessarily reacting negatively.

Why a not so insignificant number of jurists in the forefront for the movement to restore an independent judiciary have become its severest critics or have simply disappeared from the radar? These include Aitzaz Ahsan, the prominent lawyer and activist, Ali Ahmed Kurd and Athar Minullah – all three the torchbearers of movement for restoration of Justice Iftikhar as Chief Justice of Pakistan.

Then, what prompted the Lahore High Court Bar Association general house to pass a resolution that the presidential election on the orders of the SC did not have legal or constitutional validity and that the bar did not accept it. The LHCBA president Abid Saqi went to the extent of saying, “the three SC judges [who heard the case] should be tried under Article 6 of the Constitution” – the article deals with high treason.

Perhaps the only check on the judiciary is itself. This couched in simple language would translate into judicial restraint. Perhaps the kind it has demonstrated in the case against Imran.

Imran has somewhat backed off by clarifying that his angry remarks were directed against the lower judiciary – more specifically returning officers and assistant returning officers’ role in the May 11 elections. He has also reiterated his respect for the higher judiciary.

At the same time he vowed not to apologize claiming that he was not aware that ’shameless’ – the word he used for the judiciary – constituted an insult. The Chief Justice however was of the view that branding the judiciary’s role in elections as ‘shameful’ was abusive and hence cognizable.

The media has a right to be critical of verdicts and decisions of the apex court. However, as one of the pillars of democracy, it should be mindful that its role does not lower the esteem of the judiciary in the eyes of the public.

Nevertheless by virtue of the relatively recently introduced ‘ticker culture’, remarks of the judges are reported on news channels mostly out of context. Sometimes it however quite mistakenly gives the impression of judges playing to the gallery.

Justice Jawad S Khawaja during the proceedings asked a rhetorical question that if Imran’s complaints regarding courts in Punjab were pertinent what about the role of returning officers role in KPK? Imran will soon learn the hard way that tendency to shoot from the hip can land him one into trouble with other institutions.

He will have to satisfy the apex court to accept his explanation, or risk disqualification a la Yousuf Raza Gilani. Probably the court will not go that extent, but still the sword of Damocles will keep on hanging over Imran’s head till the matter is over.

Khan’s stance that he was against participating in the presidential election but his party, namely PTI’s presidential candidate Justice (Retd) Wajhiuddin vetoed him was rather puzzling. Perhaps conscious of the charge of being labelled as ‘friendly opposition’ he came out full throttle against the EC and the Supreme Court.

Another casualty of the presidential election, CEC Justice (Retd) Fakhruddin’s resignation was not unexpected. The role of the CEC in May11 elections was not very visible. During the campaign days, most of the time he stayed put in Karachi, leaving it to members of the Commission to run the onerous task of conducting the elections. His failure to provide a leadership role is the basis of most complaints of the PPP and the PTI about rigging mostly pertaining to Punjab.

To add insult to injury, after passing the buck to the Supreme Court regarding the date of the presidential elections, the CEC belatedly complained that the election schedule should have been given by the EC.

The architect of the eighteenth amendment to the constitution Raza Rabbani, also presidential candidate of the PPP, rightfully takes pride for establishing an independent election commission. But the process laid down under the Amendment to select a retired judge by consensus to head the Commission without being powerful enough, has led to hitherto unforeseen complications.

In any case why only the higher judiciary is considered competent to head the Commission? Why not an eminent retired bureaucrat or someone from the academia? And certainly there should be an upper age limit. Conducting elections is an arduous task way beyond the physical capabilities of an octogenarian.

The writer is Editor, Pakistan Today.