Try­ing to con­tam­i­nate the courts

The Pak Banker - - MARKETS/SPORTS - Moshar­raf Zaidi

When I speak to lawyers about Chief Jus­tice Saqib Nisar, in full con­fi­dence and com­pletely pri­vately, they rave about him. He is widely known to be one of the bright­est and most ac­com­plished lawyers of his gen­er­a­tion. They cel­e­brate his as­cen­sion to the of­fice of chief jus­tice. He is, by al­most ev­ery ac­count, the per­fect can­di­date to lead and re­form Pak­istan's ju­di­ciary.

In re­cent weeks, he and his work have been crit­i­cised by sev­eral quar­ters. Most crit­i­cisms of the chief jus­tice are po­lit­i­cally mo­ti­vated, but some are re­lated to pol­icy, and still oth­ers are con­cerned that the cur­rent spike in suo-motu no­tices will mar an oth­er­wise glo­ri­ous legacy.

When I in­formed a close friend who hap­pens to be a Supreme Court lawyer that I would write about the chief jus­tice, he said I should not waste my time try­ing to di­vine why he is do­ing what he is do­ing. He sug­gested I should fo­cus on the im­pact of what he is do­ing. In essence, he wanted me to avoid the po­ten­tial to cause of­fence to the chief jus­tice. The same lawyer friend has also raved about the Saqib Nisar the man, and the lawyer. So I will take my chances. I am not a lawyer, but I have spent two decades work­ing on try­ing to un­der­stand pub­lic pol­icy, and how both for­mal and in­for­mal pro­cesses - eco­nomic, po­lit­i­cal, tech­ni­cal, so­cial and cul­tural (es­pe­cially re­li­gious) - help shape and change states and so­ci­eties. The dis­cus­sion about the cur­rent Supreme Court's in­creased ju­di­cial ac­tivism is a pub­lic pol­icy is­sue, and can be dis­cussed, crit­i­cally and hon­estly, with­out any risk of be­tray­ing con­tempt for any in­di­vid­ual or in­sti­tu­tion, much less the Supreme Court of Pak­istan.

The ju­di­ciary in Pak­istan has en­joyed over a decade of un­prece­dented pub­lic trust and con­fi­dence ever since a mass move­ment for the restora­tion of the ju­di­ciary un­der then Chief Jus­tice Iftikhar Chaudhry that be­gan on March 9, 2007. This great surge in pub­lic con­fi­dence has en­dured across the terms of Jus­tice Chaudhry him­self, as well as chief jus­tices Ji­lani, Nasir-ul-Mulk, Khawaja, Ja­mali and now Chief Jus­tice Nisar.

The foun­da­tion for this trust was the clar­ity and co­her­ence of the key propo­si­tion put forth by the lawyers' move­ment: judges in Pak­istan are sub­servient only to the con­sti­tu­tion, and are the ul­ti­mate guardians of the law as it ex­ists. They are not sub­ject to the or­ders of any other in­di­vid­ual or body.

The po­tency of the lawyers' move- ment was not just the moral clar­ity of this propo­si­tion. It was also in­formed by the con­text in which this propo­si­tion was be­ing made. Iftikhar Chaudhry did not stand up to a weak and po­lit­i­cally com­pro­mised elected leader. He stood up to a mil­i­tary dic­ta­tor flush with the ego and brute phys­i­cal power that comes with tak­ing over the en­tirety of the mil­i­tary, the civil­ian bu­reau­cracy and a wide swathe of the po­lit­i­cal cap­i­tal of the coun­try. Then-Chief Jus­tice Chaudhry stood up to Gen Pervez Mushar­raf at the peak of the lat­ter's pow­ers. The lawyers and judges that stood with Chaudhry were not stupid, even if many out­siders did not re­alise back in 2007 how lim­ited Iftikhar Chaudhry was. They knew full well that Jus­tice Chaudhry was not the great­est le­gal mind of his gen­er­a­tion, and that many of his per­sonal lim­i­ta­tions may serve to un­der­mine the ju­di­ciary.

But they lined up be­hind Chaudhry and the lawyers' move­ment be­cause it rep­re­sented an un­prece­dented op­por­tu­nity to chal­lenge Pak­istan's in­sti­tu­tional dis­e­qui­lib­rium. The decades prior to March 2007 had marred the ju­di­ciary, rightly or wrongly, as a mal­leable in­sti­tu­tion, eas­ily ma­nip­u­lated or con­trolled by the most pow­er­ful in­sti­tu­tion in the coun­try: the Pak­istani mil­i­tary.

The lawyers' move­ment, above all other things, erased this slur from the ar­ray of le­git­i­mate crit­i­cisms. The rate of case dis­posal, the qual­ity of jus­tice and the na­ture of bar and bench re­la­tion­ships, which con­sti­tute more meaty con­tent in any dis­cus­sion about the ju­di­ciary, were barely ever even in the widest-lens sight of the lawyers' move­ment. The one-point agenda that drove the move­ment was sim­ple: no one talks to a chief jus­tice like Mushar­raf spoke to Chaudhry on March 9, 2007. No one gets to fire judges on a whim. No one gets to con­trol the ju­di­ciary, but the con­sti­tu­tion of Pak­istan.

And thus, Chaudhry's stand­ing up to Mushar­raf and the sub­se­quent lawyers' move­ment en­gen­dered pub­lic trust and con­fi­dence in the ju­di­ciary as an over­ar­ch­ing macro-level in­sti­tu­tion in Pak­istan, and this has largely stayed the same or in­creased since then. Gallup Pak­istan has re­peat­edly in­di­cated that a gen­er­a­tional shift in trust in the ju­di­ciary has taken place, with one re­port in­di­cat­ing an al­most twenty-point in­crease in Pak­ista­nis' trust of the courts be­tween 1982 and 2014. In March 2013, a Pew sur­vey showed that 58 per­cent of Pak­ista­nis be­lieved the courts rep­re­sented a good in­flu­ence on na­tional life, com­pared to only 24 per­cent for the na­tional gov­ern­ment, 23 per­cent for the po­lice, and only 15 per­cent for then pres­i­dent Asif Ali Zar­dari. More re­cently, a Gallup Pak­istan sur­vey in March 2017 showed that whilst only 21 per­cent of all re­spon­dents ex­pected an un­favourable out­come of the Panama case for Nawaz Sharif, over 65 per­cent of re­spon­dents be­lieved that, what­ever the out­come would be, peo­ple would ac­cept it.

Un­like what many be­lieve to be the case, Nawaz Sharif pos­sesses an in­cred­i­bly sharp mind, es­pe­cially in mat­ters of the ac­qui­si­tion, sus­te­nance and deep­en­ing of power for him­self. This sharp­ness has been on full dis­play since he was disqualified on July 28, 2017. Sharif and his sup­port­ers posit the civil-mil­i­tary di­vide as the prin­ci­ple con­tra­dic­tion of Pak­istani state and so­ci­ety. Yet since his dis­qual­i­fi­ca­tion, Sharif's ire has barely fo­cused on Rawalpindi. In­stead, he has de­lib­er­ately and con­sis­tently baited the ju­di­ciary on ev­ery sin­gle oc­ca­sion on which he has had a chance to speak pub­licly.

Press state­ments and pub­lic opin­ion are the do­main of politi­cians. Court de­ci­sions are the do­main of judges. The very core pur­pose of the Shar­ifs' cir­cus is to con­tam­i­nate the courts. The con­tin­ued and in­creas­ing pres­tige and cred­i­bil­ity of the ju­di­ciary in Pak­istan is in dis­pens­ing jus­tice, with­out dis­crim­i­na­tion. Not in talk­ing about it.

In re­cent weeks, he and his

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