Nawaz's disqualification continues to haunt ex-CJ

Nisar has repeatedly failed in ending the perception of being a 'pro-Imran Khan' judge

ISLAMABAD:

Ex-CJP Mian Saqib Nisar has once again come under the limelight after he dredged up the controversy surrounding the Supreme Court’s 2017 verdict that saved the then premier Imran Khan from the throes of disqualification on the grounds that he was ‘sadiq and ameen’ (truthful and honest).

The clarification from the former head of the apex court offers yet another glimpse into the long-lasting and haunting impact of the conviction of former prime minister Nawaz Sharif and his daughter Maryam Nawaz that overshadows Nisar’s legacy.

Nisar, who is antagonised as an “anti-PML-N” judge by party supporters, has received flak for being “arrogant” and has repeatedly failed to end the perception that he was in cahoots with the security establishment to facilitate Imran’s ascension to power.

Read more: PAC summons former CJP Saqib Nisar over dam funds

However, the ex-CJP was not part of the bench that disqualified Nawaz Sharif as a lawmaker under Article 62 (1) (f) of the Constitution.

Moreover, in his initial days, Nisar was welcomed onto the political scene by a PTI-led campaign denouncing him as a “PML-N judge” for staying away from the larger bench hearing Panamagate.

During the hearing of PML-N leader Hanif Abbasi's petition seeking disqualification of Imran Khan and Jahangir Tareen, Nisar had given a tough time to the counsels of both PTI leaders.

However, in December 2017, the former CJP declared Imran ‘sadiq and ameen’. Tareen was disqualified under Article 62 (1) (f) of the Constitution.

On the other hand, the PML-N leadership was also fuming against the judges over the party supremo’s disqualification.

Things came to a head in December 2017 when Nisar responded to PML-N’s attack against judges and famously reminded them that the judiciary ought to be treated like a 'baba' (grandfather) and therefore, they should respect it.

The speech essentially marked Nisar’s departure from his earlier approach following which he was visibly engaging in unique judicial activism, which was very different from what he did as a superior court judge throughout his 20-year career.

His judicial activism had started to overshadow his previous pro-executive and pro-parliament approach which was also characterised by judicial restraint. Many lawyers describe his judicial activism as a ‘U-turn’ in his approach.

Also read: Fazl accuses ex-CJP, Faiz of lobbying for Imran

Until 2017, Nisar had believed in political-constitutional supremacy. However, he went on to earn a reputation as a believer in judicial-constitutional supremacy. After being pro-executive throughout his career, he had become sceptical of the powers of the executive in his last year.

He also remained sceptical of the public interest litigation under Article 184 (3) of the Constitution but became a strong proponent of exercising suo motu powers.

As a judge, he had been a non-believer in the basic structure theory of the constitution and put his faith in the supremacy of parliament. However, later, a volte-face, he took a completely opposite position and declared the Constitution to be supreme, which is to be interpreted by the apex court.

Till 2017, Justice Nisar was believed to be a pro-Pakistan Muslim League-Nawaz judge who preferred not to head a larger bench that heard the Panamagate case. But that image underwent a drastic shift when he was openly criticised as a judge who harboured a bias against PML-N.

Till 2017, Justice Nisar was known as a judge who gave a proper opportunity hearing to lawyers but in his last year, many senior lawyers avoided appearing before him due to his allegedly rude conduct. Harsh words were also exchanged between Justice Nisar and top attorneys during this year.

He was visibly tough on politicians, media men and top officials. However, no visible change was witnessed in his approach towards the military establishment, which is why one section accused him of weakening civilian supremacy. His judicial activism was beneficial for PTI which won majority seats in the 2018 general elections.

Perhaps it was the first time in the judicial history of Pakistan that a CJP heard cases also on weekends. Water, health, education and population control were his main priorities. Likewise, the CJP conducted unique proceedings in public interest matters at the Lahore Registry.

Justice Nisar not only adjudicated matters related to the public interest but also visited different hospitals, jails etc. He also started a campaign to collect funds for the construction of dams. Despite reservations, people appreciate him for highlighting the issue of water shortage in the country.

Last year, courtroom No 1 always remained packed during hearings of high-profile cases, in which several politicians, civil servants and common people appeared.

In November 2017, the Islamabad Accountability Court-I judge denied Nawaz’s application to club all three references against him for a joint trial. But in June next year, the SC led by ex-CJP Nisar had allowed the accountability court an unrealistic four-week extension when it sought permission.

The extension ended just two weeks before the election and when the judgment came out, Nawaz, his daughter Maryam and her husband Capt Safdar were convicted and put behind bars just before the polls. Due to this, the Sharif family l builds a case of bias against ex-CJP, Nisar.

A bench led by CJP Nisar also disqualified Nawaz as PML-N head in view of the Panamagate judgment, prompting PML-N candidates to contest Senate polls without a party ticket. Three PML-N workers were disqualified in contempt cases and cases were registered against others under the Anti-Terrorism Act for using harsh language against the incumbent CJP.

SC under CJP Nisar also declared the disqualification of lawmakers under Article 62 (1) (f) would be permanent. It also stopped the ECP from issuing notification regarding the success of four newly elected senators due to their allegedly dual nationality. Later two PML-N senators were disqualified, when PTI got the majority in Punjab Assembly.

Subsequently, two PTI senators were elected.

Contrary to the Election Act 2017, the Supreme Court on June 5, 2018 restored almost all information omitted in the nomination forms by the parliament. Likewise, election matters were fixed before specific benches of the superior courts. When the election process was continued, the PML-N leader Hanif Abbasi was also convicted in the ephedrine case.

Ex-CJP Nisar took suo motu notice regarding alleged money laundering through fake accounts in Sindh. The Supreme Court ordered that the trial of the fake account scam accused including Asif Ali Zardari, Faryal Talpur, and Chief Minister Murad Ali Shah would be held in Islamabad.

PML-N lawyers contended that they were not given a level playing field in the last general elections in 2018. Later, Islamabad High Court granted relief by suspending the sentence of Nawaz Sharif and Maryam Nawaz in the Avenfield case.

However, Supreme Court senior judges especially Saqib Nisar had raised questions on the IHC order wherein they were released on bail. Furthermore, a larger bench by ex-CJP Nisar had also given guidelines to high courts for granting bail.

Subsequently, Nawaz Sharif was disqualified in the Al Azizia reference.