Year Ender | In The Eye Of The Storm: Pakistan's Judiciary In 2021

Year Ender | In The Eye Of The Storm: Pakistan's Judiciary In 2021
If the divisions and fissures created by diametrically opposed views on rule of law and fundamental rights in general held by bar and the bench simmering under the surface seemed invisible to the public eye, the recently-held Asma Jahangir Conference succeeded in quite spectacularly lifting the veil while accentuating the said divergence clinically. But, above all, it managed to create an atmosphere of healthy debate aimed at reforming the system for which the late Asma Jahangir stood for all her life. Although the assertions and counter punches thrown during the event by speakers sounded eerily similar in tenor and tone which the civil society and supporters of the 1962 Constitution had exchanged six decades ago, the reverberations and tremors were enough to shake the country as if a brand new calamity had hit us.

 It was Habib Jalib’s melodious voice singing “main nahi manta…” which he used to devastating effect, comprehensively upstaging the narrative of Ayub Khan’s chief framer of constitution, Manzoor Qadir, who had grounded the denial of fundamental rights in Islam. Yes, Islam! 

This time around, Ali Ahmad Kurd did not have to go from town to town like Jalib to sway and win people’s hearts with his innocuous sounding and yet revolutionary poem – social media carried Kurd’s message far and wide. 

Apart from tearing down the carefully etched façade of an impartial justice system, Kurd’s two minutes at the podium, perhaps, has had the same effect as Martin Luther King’s epoch-making “I have a dream…” speech. Theatrics apart, the message was delivered without mincing words and reflected the public perception about the state of our judiciary.

 Only those gratuitously inebriated with the woefully out of touch elitism would fail to countenance public obloquy conveyed through Kurd’s address on account of erosion of judicial independence and its direct nexus with Pakistan’s judicial system slipping to 130th place in the world ranking.  

In the year 2021, the credibility of the judiciary came into question several times.

Justice Isa’s no-holds-barred stance

The year started when one of the senior most judges, Qazi Faez Isa, chose to question the impartiality of his own institution by taking the unprecedented and equally dramatic step of making passionate pleas to his peers for days to dispense justice in his case. The traditionalists in the legal fraternity were quick to criticise the judge for bringing the institution, in their opinion, to such depths that a sitting Supreme Court judge has to appear before his colleagues to seek justice – conveniently forgetting the reasons that made him take such a radical but difficult decision. 

Supreme Court judges passing remarks against each other during the full court hearing and the senior most member feeling helpless during the cross talk not only shocked the entire nation it also exposed the fierce difference of opinion representing views held on both sides of the divide with little likelihood of bridging the ever widening chasm of mistrust. 

As has happened on a number of delicately poised occasions which, incidentally, have also produced spellbinding political theater in Pakistan’s political history, the perception about judicial independence in the face of the military establishment’s overreach remains the same if not resulting in the former emerging with even further bruising in the 75th year since independence.

Allegations of double standards 

The judicial approach of targeting certain political parties while apparently ‘doing justice’ in rest of the cause list fixed before our higher judiciary irreparably dents public confidence and has lost its shelf life. It may not be great advertisement for our judiciary when one of the judges have to be reminded by a senior advocate, Makhdoom Ali Khan no less, that as opposed to what was held in the infamous Panama cases, a report compiled by a Joint Investigation Team (JIT) upon the direction of the Supreme Court has little legal force without being put through a rigorous trial. 

In a fast moving plot, desk thumping denials of Ali Ahmad Kurd’s fiery and scathing indictment earlier in the day were swiftly followed by cutting of wires during former prime minister Nawaz Sharif’s speech and Rana Shamim throwing his spanner in the works through an affidavit sworn in London. The audacity to deny the constitutional right to free speech in a gathering which the Chief Justice also graced with his presence is mind-numbing to say the least. The Islamabad High Court which has been in the eye of many a political storm while hearing the appeals filed by Mian Nawaz Sharif felt compelled to question the decision by Rana Shamim to keep silent for three years in almost the same way the Supreme Court grilled Justice Shaukat Aziz for not refusing to meet intelligence officers. 

Hardly a word was said during both the above hearings on who manipulated and attempted to engineer the whole process and whether any action should be taken against in-the-shadows protagonists, some identifiable with names and ranks. 

In defence of our, albeit somewhat dysfunctional, judicial system, it needs to be said that the clamour for speedy conclusion of court proceedings may be a bit harsh and misplaced. We must not lose sight of objectivity while advocating for a reliable and fair judicial system as delays in legal proceedings do not always mean justice will be denied at the end of the day. Let us not forget that an act of murder or a civil dispute are not set down for trial by judges immediately even in the best of  justice systems like those of the United States, Canada or the UK, for instance. Needless to mention, the same approach is also in vogue at the appeal stages. 

Controversial decisions, remarks

Two incidents right at the fag end of 2021 sum up the judicial year pretty comprehensively: 1) The registrar refusing to give information regarding salaries, perks, residential plots etc of Supreme Court judges and employees as directed by the Information Commission of Pakistan and insisting on the Writ Petition filed by him to be fixed before a particular judge 

2) The Chief Justice of the Lahore High Court’s suspension of an order passed by his brother judge in a case being heard at the Multan Bench just because the petitioner happened to be a litigious employee of the High Court and had the reputation of challenging recruitments of staff in the High Court. To say that the above incidents raised eyebrows only in the legal circles and in the civil society as a whole would be an understatement of the year!    

It has to be said that the palpably uneven treatment reserved for different sections of society does not augur well for the image of a judiciary already struggling under the baggage of a number of anomalous decisions over the decades. Take for example the use of suo motu powers under Article 184(3) to reinstate government employees recently while striking down legislation passed by the Parliament all at the same time. Despite Justice Mansoor Ali Shah’s principled dissenting judgment which has stressed strengthening the legislature, this case joins a long list of such decisions which future supreme courts will take years if not decades to revisit and rectify. 

As 2021 rolled on, it was natural for the political leadership of the Pakistan People’s Party (PPP) to be aggrieved when suo motu powers relating to encroachments in Karachi—be it Nasla Towers, Gujjar Nalah or elsewhere—are used to single out the Sindh government on the one hand, but recently leaked Pandora Papers, for example, do not similarly stir the Court into action, on the other. 

Finally, the removal and subsequent reinstatement of Murtaza Wahab as the Administrator of Karachi by the Supreme Court will serve as cherry on the cake in a year of high drama and fluctuating fortunes.    

Tariq Bashir is a Lahore based lawyer. Follow him on twitter @Tariq_Bashir