The Mission of Pakistan’s Judges Is Judicial Guardianship Of The Constitution
Muhammad Hanif is arguably one of the most loved local flavours 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 from a lot of people, 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 while pushing a narrative to justify the unjustifiable — an autocratic Parliament with constitutionalism as its slave and the judiciary as its fixer.
It has been suggested in that article 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 powers between the three pillars of state is more akin to the written American Constitution, where the judiciary acts as a true ‘guardian of the Constitution’ — meaning that the judiciary can judicially review executive action and strike down legislation against the basic structure of the 1973 Constitution. Landmark cases from the USA, such as Marbury vs Madison (1803) and USA vs Nixon (1974) illuminate such approach taken by the judiciary. 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 also promoting a culture of accountability and fundamental rights. It is not a novel effort; s.6 of the UK’s Human Rights Act (HRA) 1998 asks all public institutions to institutionalise a culture of human rights, increasing compassion for the needs of the people. Our Constitution also allows for 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, which it has traditionally shied away from. The Pakistani judiciary is well within its constitutional parameters to apply an expansive legal definition to the judicial review purview, treating it as a floor rather than a ceiling.
On previous occasions, Sharif has vehemently endorsed judicial activism and has even participated in the famed Lawyers’ Movement for the restoration of judiciary, but those high ideals were immediately abandoned when accountability reached his own doorstep. Thus began the era of political gymnastics and the spewing of venomous content, exposing the ego of individuals to be bigger than the State itself. The nation and its institutions are at a standstill due to this fanatical purge against the institutional progress of Pakistan.
Come hell or high water, relinquishing power does not seem like an option for some. The stakes are akin to playing the game of thrones where you either win or die (politically)! As far as the judiciary using the ‘Sicilian Mafia’ analogy for them is concerned, it is commonplace to utilise famous pop culture references as legal jargon if thought relevant and instructive — for instance, the judgment from Taylor Swift’s lawsuit (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 as well as the Constitution of Pakistan. Keeping in context the charged and hostile political environment, one would feel that the judiciary is still exercising relative restraint. An objective non-discriminatory lens dictates that the unprecedented verbal latitude being granted to the House of Sharifs is extended to judicial statements rather than the application of a utopian criterion. As far as the judicial cross-questioning making headlines is concerned, 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 can be rebutted. The Chief Justice of Pakistan also said that “we (the judiciary) do not wish to hear cases of a political nature”, so judicial restraint can be exemplified there as well. Findings of the Joint Investigation Team (JIT) in the Panama Case were evidentially stacked against Sharif, yet the judiciary remained within the confines of the Constitution and did not reconstitute itself as a trial court sending references to the National Accountability Bureau (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 (Muhammad Hanif) for mocking the judiciary as “village elders”.
As a practitioner and activist for an international human rights project, I have completely internalised the concept of ‘non-discrimination’. The stringent litmus test applied to deduce ethical standards and (alleged) by-partisan role of the judiciary means holding them to the standards of their Westminster counterparts but then a similar benchmark for the ousted Prime Minister should also be set. UK’s former Prime Minister, David Cameron was also held accountable on the floor of the House in the aftermath of Panam Leaks, while Iceland’s Prime Minister resigned. Factually, the difference in magnitude of those allegations and the ones staring down the House of Sharifs is 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. Trials are proceeding on the basis of facts and as per the law and convictions seem inevitable due to the weakness of defense, but Sharif is fighting a legal battle under the guise of politics. He and his family seem to be working on unprecedented political perception management and opinions such as Muhammad Hanif’s inadvertently add fuel to the 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. This makes them the ones on a mission to turn this evolving democracy into an absolute monarchy. Seemingly the writer accepts Sharif’s illogical dictum of ‘how dare you (the judiciary) ask me questions about what is mine!’
Nawaz Sharif is trying to confuse people between his accountability as an individual, party head and government functionary. The investigation of mega-corruption charges has led to the collapse of his portfolios. The expounding of 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 and it is not person-specific, rather it is 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 Sharifs are coming to their logical conclusion. Pressure is being exerted on the judiciary to obtain favourable outcomes. The anticipation of failure is manifested in Nawaz Sharif 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 steadfastness in resolve, despite the storm of verbal abuse. The judiciary must keep walking this thin red line and 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 and as custodians of the Constitution of Pakistan.
An earlier version of this article appeared in The Express Tribune. Republished here with permission.
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