The mission is judicial guardianship

Judges speak through their judgments, freedom of expression guaranteed under international conventions, constitution

Muhammad Hanif arguably is one of the most loved local flavour of criticism stir-fried in sarcasm and topped with a generous garnish of biting wit. His skill as a wordsmith has earned him a lot of appreciation and respect, myself included. However in his recent piece for The New York Times, he appeared desperate instead of his usual natural self, with a partisan lean so angled that he almost tripped and fell from grace. Pushing a narrative to justify the unjustifiable — an autocratic parliament with constitutionalism as its mistress and the judiciary as its fixer.

His article titled ‘Pakistan’s judges are on a mission, but what is it?’ demonstrated innuendos, biased interpretations and alarming conspiracies. Pakistan is amidst an election year, severe institutional deadlock stemming from bull-headed defiance against accountability displayed by Nawaz Sharif and deciding between constitutionalism and individualism. This marks a phase in Pakistan’s constitutional evolution analogous to the ‘glorious revolution’ period in British constitutional history, whereby the raging battle to establish absolutism and divine right to the rule of James II was permanently settled in favour of rule of law, institutional independence, and unique power equilibrium in the form of an uncodified constitutional monarchy.

It has been suggested that the Pakistani judiciary is working ultra vires. It is certainly not! Pakistan codified its binary constitutional code in 1973; the written Constitution serves as the highest form of entrenched law in the country whereby all state institutions are co-equal and subservient to it. Any inconsistent suggestion is legally incorrect. Dispelling colonial mindsets, Pakistan’s theory of separation of power between the three pillars of state is more akin to the written American Constitution. The judiciary acts as true ‘guardian of the Constitution’ — can judicially review executive action and strike down legislation against the basic structure of the 1973 Constitution. The US’s landmark cases: Marbury vs Madison (1803) & USA vs Nixon (1974) illuminate our approach. Contrarily, the UK’s sovereign parliament enjoys illimitable legal power and the judiciary is subservient, even adhering to the ‘concept of non-judiciability in matters of high policy’ (GCHQ case). Pakistan’s judiciary is promoting a culture of accountability and fundamental rights. It is not a novel effort; s.6 of HRA 1998 (UK) asks all public institutions to institutionalise a culture of human rights, increasing compassion for the needs of people. Our Constitution allows suo-motu action, expanding the ambit of judicial review to both positive acts and negligent omissions in order to jolt the overall system into action. The last decade has firmly fortified the Supreme Court’s right to judicial review, from which it traditionally shied away from. The Pakistani judiciary is well within its constitutional parameters to apply an expansive legal definition to judicial review purview, treating it as a floor rather than a ceiling.

Earlier, Nawaz vehemently endorsed judicial activism and participated in the famed lawyers’ movement for restoration of the judiciary but those high ideals immediately were abandoned when accountability reached his own doorstep. Thus began the era of political gymnastics, spewing of venomous content and exposed his ego as bigger than the state itself. The nation and its institutions are at a standstill due to one man’s fanatical purge against the institutional progress of Pakistan.

Come hell or high water, relinquishing power is just not an option! Stakes akin to playing the game of thrones; where you either win or die (politically)! Also, it is commonplace to utilise famous pop culture references as legal jargon if thought relevant and instructive — Taylor Swift’s lawsuit judgment (2015) contained lyrics from her songs. The ‘Sicilian Mafia’ analogy aptly responded to abusive threats by Senator Nehal Hashmi against the judiciary.

Judges speak through their judgments and freedom of expression guaranteed under international conventions and constitution of Pakistan entails word selection by the judiciary. Keeping in context the charged hostile environment the judiciary is still exercising relative restraint. An objective non-discriminatory lens dictates that the unprecedented verbal latitude being granted to the House of Sharif is extended to judicial statements rather than applying a utopian criterion. Cut them some slack! As to judicial cross-questioning making headlines; in 2018 social media and instant means of communication have realistically made it impossible to contain proceedings within isolated courtrooms. Obsessive media attention makes for breaking news and often quoting judges out of context.

The selectivity in quoting remarks is rebuttal; the CJP also said that “we (judiciary) do not wish to hear cases of a political nature”. Judicial restraint can also be exemplified; JIT findings were evidentially stacked against Nawaz, still the judiciary remained within the confines of the Constitution and did not reconstitute itself as a trial court sending references to the NAB court for trial. It is not mere ‘sarcasm’; the Sharifs’ have surely gone overboard yet no contempt notices have been issued to them or the writer for mocking the “village elders”.

As a practitioner and activist for the International Human Rights project, I have completely internalised the concept of ‘non-discrimination’ .The stringent litmus test applied by you to deduce ethical standards and (alleged) by-partisan role of the judiciary means holding them to the standards of their Westminster counterparts but then set a similar benchmark for the prime minister. On Panama leaks: ex-prime minister David Cameroon was held accountable on the floor of the house and Iceland’s prime minister resigned. Factually, the difference in magnitude of those allegations and the ones staring down the House of Sharif are incomparable yet the response is inversely proportional; unapologetically defying the Constitution and repeatedly chanting “Mujhay kiun nikala — why was I removed?” to build a self-glorifying national narrative against judicial accountability.

Justice must not only be done but manifestly seen to be done. On facts, the trials are proceeding as per the law and convictions seem inevitable due to the weaknesses of defence, but Nawaz is fighting a legal battle under the guise of politics. Cleverly, he and his daughter are working on unprecedented political perception management (opinions such as yours inadvertently add fuel to this fire). The masses lack the capacity to fully understand complex constitutional issues, hence with sophisticated rhetoric they are effectively inciting the electorate to believe that justice is not seemingly being delivered. They are the ones on a mission to turn this evolving democracy into an absolute monarchy. Seemingly the writer accepts Nawaz’s illogical dictum of ‘How dare you (the judiciary) ask me questions about what is mine!’

Nawaz is trying to confuse people between his accountability as an individual, party head and government functionary. Investigation of mega-corruption charges have led to collapsing of his portfolios. Expounding false narratives, whereby the judiciary conspires to even take away his name and undo the signatures on the atomic programme are hereby dismissed as mere misleading political gimmicks. This is not a conspiracy or person-specific rather about accountability from the top. He is not an innocent victim rather displays the epoch of selfishness by instigating institutions and followers against the judiciary and military to fulfil ulterior motives.

Multi-fold sub-judice cases directly affecting the House of Sharif are coming to their logical conclusion. Pressure is being exerted on the judiciary to obtain favourable outcomes. Anticipating failure manifested in Nawaz preemptively crying foul as a coping tactic. Contextually, passion towards one’s job does not always mean being partisan. It can encapsulate objectivity, purpose and remaining steadfast in resolve in spite of the storm of verbal abuse. The judiciary must keep walking this thin red line; neither be provoked nor bend over backwards, it cannot succumb to human frailties at this critical juncture and must stick to the mission of adjudicating in accordance with the law, as custodians of the Constitution of Pakistan.

Published in The Express Tribune, March 15^th, 2018.

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