From one extreme to the other

• The pendulum has swung

When the Germans were bombing London, prime minister Winston Churchill was briefed on the casualties and economic collapse. He asked, “Are the courts functioning?” When told that the judges were dispensing justice as normal, Churchill replied, “Thank God. If the courts are working, nothing can go wrong.” He was right on the money to exude the confidence in regards to winning the war because the societies where justice prevails do have an inbuilt ability in their systems of governance to ward off dangers facing them and emerge triumphant.

Justice means adjudication by the courts strictly in accordance with the law and the constitution without allowing subjective considerations to influence the ultimate verdicts. Judiciary is the most sanctimonious institution and the justice dispensed by it strengthens the edifice of the state. However if we look at the history of judiciary in Pakistan there are very few bright spots to be proud of.

Regrettably the hopes kindled by the lawyers’ movement for the restoration of judiciary in regards to beginning of a new era with the institution dispensing justice by strictly adhering to the law and constitution have failed to materialise. The pendulum has swung from one extreme of judicial passivism to the other extreme of judicial activism. It has demonstrated unrestrained propensity to delve into the issues which, according to the constitution, fall outside its domain.

An incisive look into some decisions given by the SC reveals that all the internationally recognised principles of jurisprudence and relevant provisions of the constitution were violated. The judiciary has been acting more like a popular court than the court of law. It challenged the eighteenth amendment clause regarding the appointment of judges and almost forced the parliament to bring another amendment to accommodate its view point, thus violating article 239(5-6) of the constitution which says “No amendment of the constitution shall be called in question in any court on any ground whatsoever.” The court actually tried to overlord the parliament.

Through its unremitting propensity to use its suo motto jurisdiction it has tried to intervene in anything under the skies and even the areas which were the exclusive domain of the executive. The CJ and SC judges instead of speaking through their decisions relished the spectacle of hitting the headlines through their remarks and statements during the hearing of the cases, violating the code of conduct prescribed by the Supreme Judicial Council.

In 2014 the SC in complete disregard to Article 66(1) and 69(1) which debars the courts from questioning the deliberations of the parliament or anything said by any member of the parliament on the floor of the house, entertained a petition by Ishaq Khakwani of PTI for disqualification of the prime minister on the basis of a statement that he made in parliament regarding mediatory role by the COAS during the sit-in staged by the duo of Imran Khan and Tahir ul Qadri, though it dismissed the petition in the end. It is interesting to note that while dismissing the petition ( PLD 2015) the honourable judge Asif Saeed Khosa wrote an additional note regarding article 62 (1)f 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”

Is it not intriguing that in the Panama case the judges have disqualified the former prime minister under the same clause on a charge which even the petitioners had not prayed for in their petitions? Majority of the legal and constitutional expert is of the considered opinion that the SC decisions on Panama case and the review petition of the former prime minister were not marvels of jurisprudence. The way this case panned out also raised myriad of questions about adherence to the established legal norms and practices. The remarks given about the former prime minister and the government by the judges, in the opinion of the legal experts were not only unwarranted but also reeked of subjective considerations particularly the ones given in the decision on the review petition smacked of indignation that could have been a reaction to the criticism that was directed at the SC by the PML-N leadership

The CJ, referring to the criticism being hurled at the SC, remarked, “The patience being displayed by the judges with regard to what was being said outside should be lauded”. It would have been appreciated if he also had shed some light on the circumstances which led to this situation of judges having a swipe at a popular political leader and the reaction against the perceived injustice. The respect for and sanctity of the judiciary depends on its role to uphold the law and the constitution which is reflected through its decisions rather than displaying judicial activism pummeling principles of jurisprudence. The PML-N rightly felt incensed at the way the case has been handled and verdicts delivered.

The SC entertained the Panama case invoking article 184(3), the jurisdiction conferred on it only in regards to questions relating to fundamental rights. There is a permeating view that the taking up of the Panama case by the SC under article 184(3) was not appropriate as no question of violation of fundamental rights was involved.

Further, the circumstances that led to the filing of the petitions in the SC were also quite dubious. Imran Khan who led the Panama campaign against Nawaz Sharif in an interview with a private TV channel after the verdict revealed that Justice Asif Saeed Khosa had telephoned him asking him to bring the case to the SC. In a civilised and just society that revelation could have raised a storm. But the SC instead of taking serious notice of it simply restricted itself to issuing a clarification denying the revelations made by Imran Khan. It was a clear cut case of contempt of the court. Why it did not take any action raises many eyebrows. Again after the verdict, Imran Khan has been deliberately trying to politicise the judiciary by repeatedly saying that he was standing with the judiciary against the PML-N government. The judiciary should have taken notice of this loose cannon behaviour on his part but it did not. All this is puzzling for those understand these issues.

Now NAB has filed an appeal in the SC in the Hudabiya case which was dismissed by the Lahore High court long ago. The filing of the appeal is a sequel to Justice Asif Saeed Khosa asking PTI lawyer during the hearing of Panama case to file it. It was duly reported by the news papers. The honourable judge has become controversial for the perceived bias against the Sharifs by not only showing keen interest in filing of Panama and Hudabiya cases in the SC but also for the remarks that he made during hearing of the case. Justice demands that he should have been kept away from the case to ensure that justice was not only done but was seen to be done. But the SC has thought it fit to ask him to head the three member bench to hear the case. This is going to generate further controversy and more flak on the judiciary and ultimately justice would be the casualty.