Activist judges could hurt democracy in Pakistan

Yet the biggest feather in his cap is the CJ's mission to give the country the dams it so desperately needs.

By Shahab Jafry

Published: Sun 23 Sep 2018, 8:00 PM

Last updated: Sun 23 Sep 2018, 10:09 PM

Pakistan's Supreme Court has been in a suo motu overdrive, to put it mildly, since a little after the Panama Papers verdict. Former Prime minister Nawaz Sharif along with his daughter and son-in-law were convicted for financial misappropriation. Yet the old hand at Pakistani politics spun his ouster as a crooked 'military-judiciary conspiracy' meant to sideline the 'people's mandate' leading not just his support base but also civil society liberals and a number of leading legal experts to blame the establishment of undermining Pakistan Muslim League-Nawaz in favour of Imran Khan's Pakistan Tehreek-e-Insaf.
Just as Nawaz was building momentum with his mujhjay kyun nikala (why was I removed?) slogan, Chief Justice Saqib Nisar took to the TV screen, holding press conferences and attending public events, besides taking suo motu notice of all sorts of issues in a bid to present a strong, concerned and in-control judiciary. He was appointed CJ in December 2016, after all, yet didn't feel compelled to interfere in the government's business, in defence of the people's fundamental rights of course, till November-December the next year; just when Nawaz's counter attack was spreading to the press as well as the legal fraternity.
Since then the CJ has made snap inspections at public hospitals, found almost everything wrong with public and private schools, suddenly checked hygiene and utensils in public cafeterias and also cut ribbons at sewage plants. On a couple of occasions he even had his rather big entourage stop in the middle of main roads, in full view of TV cameras, to comfort sobbing women begging anybody who'd listen for justice.
Of course, from his point of view, he wouldn't have had to do any of this if the government had simply done its job right. It was, therefore, precisely because every other department failed that the judiciary had no option but to jump in, again to protect everybody's fundamental rights. This is hardly a new trend in Pakistan. Paula Newberg, author of Judging the State: Courts and Constitutional Politics in Pakistan (1995), sums it up nicely: "When constitutions have not accomplished their task. judges and lawyers have reconstituted the state anew. Given the frequency of constitutional change in Pakistan, its courts have developed rituals of recreation: not only do they interpret the constitution of the day, but they reread political history and constitutional language to establish their own definitions. These activities lend to judicial proceedings an autonomy only partially written into constitutions and to their judgments an unparalleled importance in the development of the state."
This way, according to Newman, the judiciary ultimately sees itself as an institution of governance, leading it to weigh in on political controversies; just as Saqib Nisar seems doing.
Yet the biggest feather in his cap is the CJ's mission to give the country the dams it so desperately needs. For a while now the CJ's Dam Fund - later complemented by the Prime Minister's Dam Fund - has been all the rage. The CJs even, on occasion, routed court fines to the dam fund; like the PTI MPA punished for slapping somebody in public whose Rs3m in fines will now help preserve the country's water.
Now, though, he's threatened anybody questioning the initiative with Article-6 - the clause of the constitution dealing with treason. But since the Article, pretty straight forward in its definition, identifies anybody subverting the constitution, or attempting to subvert it, as committing high treason, the CJ's interpretation has left many scratching their heads. And that feeling does not go away when you realise that, though no doubt the CJ's heart is in the right place, his plan makes about as much sense as the apex court ordering a collective rain dance to counter a drought.
The cheapest of the three dams the PM and CJ have in mind will cost a whopping $14-15b. And even though the army chipped in with a billion rupees, and some famous people contributed some million, and expats threw in a few more million (Gen Musharraf's given Rs15m!), the dam is still short, give or take a few hundred thousand dollars, by almost the total amount needed. Some working class people would also like to know what became of the millions they have already donated to dams through taxes and special surcharges in utility bills. But not at the cost of the hangman's noose for high treason.
Interestingly enough, while the CJ hops from one stop to another, embarrassing the government for its inaction, he's not often bothered to stop by at some district and sessions courts in one of the smaller - or bigger for that matter - cities. It's as if he does not know that the judiciary is among the country's most incompetent and corrupt institutions. He's definitely not said much about the two million or so outstanding cases on his press tours. And for all his news headlines, the hospitals are hardly better, schools are pretty much the same and nobody even bothered about the wailing women who thought the messiah himself had come to them.
Shahab Jafry is a senior journalist based in Lahore

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