Dan­ger­ous col­li­sion

The Pak Banker - - FRONT PAGE - Zahid Hus­sain

Af­ter demon­strat­ing ju­di­cial re­straint for the past sev­eral months, the apex court has fi­nally re­sponded strongly. One sen­a­tor has been sent be­hind bars and is barred from hold­ing pub­lic of­fice for five years over con­tempt of court; two fed­eral min­is­ters are fac­ing the same charges. Con­tempt no­tices have also been is­sued to Nawaz Sharif and his daugh­ter Maryam Nawaz by the La­hore High Court. But that has not de­terred the ousted prime min­is­ter and his loy­al­ists from at­tack­ing the judges. The con­fronta­tion be­tween the ju­di­ciary and Sharif has be­come ugly and de­struc­tive. Nei­ther side seems to be re­lent­ing. To many, it ap­pears like a no-holds-barred clash of egos. In fact, Sharif's tenor has be­come more de­fi­ant and hos­tile af­ter the Supreme Court's lat­est ac­tion. The daugh­ter who has now taken cen­tre stage in na­tional pol­i­tics is far more vit­ri­olic in her state­ments. It is not just about be­ing hurt by the court rul­ing that dis­qual­i­fied a third-time prime min­is­ter and put the en­tire fam­ily in the dock; in fact, it is mainly to do with the sense of hubris that drives Sharif to carry out his anti-ju­di­ciary cam­paign.

When­ever the apex court has tried to as­sert it­self, it has faced a back­lash from the ex­ec­u­tive.

The Supreme Court has not backed down, and, in fact, ap­pears to have gone on the of­fen­sive. "If the judges of this court were weak­lings or fee­ble at heart and if they could be fright­ened or brow­beaten by ver­bal as­saults or naked threats, then the re­spon­dent, namely Sen­a­tor Ne­hal Hashmi, had surely made a valiant at­tempt at that. It, how­ever, ap­pears that he and those he wanted to obey or please are poor judges of men," Jus­tice Asif Saeed Khosa stated in his rul­ing.

It is rare that judges en­ter into polemics and use such strong lan­guage not­with­stand­ing ex­treme provo­ca­tion from the other side. Could this show of anger pos­si­bly cloud the con­tempt-of-court pro­ceed­ings against the Shar­ifs and the two fed­eral min­is­ters?

In­deed, no one can con­done the out­ra­geous and threat­en­ing lan­guage used by Ne­hal Hashmi against the honourable judges and their fam­i­lies. Yet slap­ping a jail sen­tence on him and un­seat­ing him (in the Sen­ate) af­ter he had ten­dered an un­con­di­tional apol­ogy does seem too se­vere, and can open the apex court to crit­i­cism and al­le­ga­tions of be­ing 'venge­ful'.

It is ap­par­ent that the tirade launched by Sharif loy­al­ists is a cal­cu­lated po­lit­i­cal move and is meant to bring the judges un­der pres­sure as the ac­count­abil­ity court comes close to wind­ing up the graft case against the for­mer prime min­is­ter and his fam­ily. Sharif is also play­ing the vic­tim card to win pub­lic sym­pa­thy and mo­bilise sup­port­ers for the com­ing gen­eral elec­tions.

But the judges are ex­pected to ex­er­cise pru­dence. It is in­deed a test­ing time for the ju­di­ciary as it is seen to adopt an overly ac­tive ap­proach. There is al­ways the dan­ger of the ju­di­ciary be­com­ing politi­cised if it en­croaches on the do­main of the ex­ec­u­tive and the leg­is­la­ture. Pre­vi­ously, we saw how the sanc­tity of the apex court was dam­aged un­der for­mer chief jus­tice Iftikhar Chaudhry. It is ex­tremely harm­ful for the in­sti­tu­tion if ju­di­cial rul­ings are seen as be­ing driven by pop­ulism. This ten­dency is now ap­par­ent as the clash of in­sti­tu­tions turns se­ri­ous. While it is wrong for po­lit­i­cal lead­ers to de­mean the ju­di­ciary it is not be­com­ing of the top judge to in­dulge in pub­lic de­bate. And it is not ap­pro­pri­ate for judges to re­spond to ev­ery crit­i­cism or de­fend them­selves in pub­lic. They must only speak through their judge­ments.

In­deed, the present con­fronta­tion be­tween the ju­di­ciary and the ex­ec­u­tive is not un­prece­dented. We have wit­nessed such ten­sions be­tween the two pil­lars of the state in the past as well. It is a man­i­fes­ta­tion of a sys­temic fail­ure. Un­doubt­edly, there is a need for re­form­ing the ex­ist­ing ju­di­cial sys­tem for the de­liv­ery of jus­tice and fair trial. It is also true that politi­ci­sa­tion of the ju­di­ciary and the judges en­gag­ing in pub­lic de­bate must be avoided. But Sharif's cam­paign against the judges is po­lit­i­cally mo­ti­vated and self-serv­ing. His idea of re­form is not about the in­de­pen­dence of the ju­di­ciary but mak­ing the lat­ter sub­servient to his whims. This no-holds-barred con­fronta­tion must be stopped be­fore it de­stroys the en­tire sys­tem.

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