Pakistani judiciary’s controversial verdicts in several high-profile trials involving political figures have tarnished its image irreparably. However, not every ruling that it handed down was under duress.
It has also been accused of partiality in cases involving high-profile political leaders. There are instances where judges are alleged to have deliberately over-stepped their bounds to rescue their distressed benefactors, sacrificing the principles of justice. Prominent judicial figures, including former Chief Justices Asif Saeed Khosa and Qazi Faez Isa, have faced allegations that their rulings favoured former Prime Minister Nawaz Sharif, bypassing established legal frameworks or precedents.
It has been alleged that in some cases, they either discouraged the use of their decisions as precedents or displayed resistance to applying precedents they disagreed with. This betrayed judicial overreach or selective interpretation, raising questions about impartiality and fairness in Pakistan’s highest court.
Nawaz Sharif, the thrice-dismissed Prime Minister of Pakistan, has been a central figure in several corruption cases. His disqualification from office in 2017 by the Supreme Court, following revelations from the Panama Papers, marked a turning point in Pakistani politics and set off a series of legal battles.
He faced multiple criminal charges, resulting in convictions and a prison sentence. However, certain judicial decisions regarding his cases, especially during appeals, have raised concerns over potential judiciafavouritismsm.
Justice Khosa, known for his astute legal mind, presided over critical decisions involving Sharif. Critics alleged that Khosa’s rulings appeared at times to veer from impartiality in favour of Sharif’s interests.
One of Khosa’s most controversial decisions was to uphold Islamabad High Court (IHC)’s rulings on granting bail to Sharif and his daughter, Maryam.
Sharif and Maryam were convicted in the Avenfield properties corruption reference by an Accountability Court in July 2018. They were sentenced to imprisonment and went on appeal to IHC.
On 19 September, the IHC granted them bail, suspending sentences, pending decisions on appeals against their convictions. The federal government challenged the IHC’s decision in the Supreme Court.
Chief Justice Khosa reviewed the federal government’s appeal. In his ruling on 25 March 2019, he declared the IHC’s decision flawed on four grounds:
The IHC’s reasoning for granting bail did not align with established principles of criminal law or bail jurisprudence.
The IHC misinterpreted the evidence or failed to consider its full implications.
The decision deviated from established judicial precedents concerning bail in corruption cases.
The IHC did not sufficiently justify why the bail was granted before the completion of the appeals process.
According to a Hadith recorded in various collections, including Sahih al-Bukhari (Hadith 3475), the holy prophet (peace be upon him) said: “By Allah, if Fatimah, the daughter of Muhammad, were to steal, I would cut off her hand.”
Khosa ruled that these points should serve as guiding principles for future cases to ensure consistency and adherence to legal norms.
Incomprehensively, however, having rejected the IHC rationale, Khosa upheld IHC’s decision on both Sharif and Maryam. Sharif’s bail was upheld obecausehe was already serving a sentence in another corruption case (the Al-Azizia Steel Mills reference). This was viewed by critics as a “practical consideration” rather than one rooted in the merits of the original conviction or appeal.
Maryam’s bail was upheld on yet another more preposterous ground that she was a woman.
This reasoning was criticized as being inconsistent with the principle that the law applied equally to all, regardless of gender. Critics pointed out that many women had been convicted in the past without such leniency and were languishing in jails.
Above all, this discriminatory decision violated the very concept of justice in Islam.
According to a Hadith recorded in various collections, including Sahih al-Bukhari (Hadith 3475), the holy prophet (peace be upon him) said: “By Allah, if Fatimah, the daughter of Muhammad, were to steal, I would cut off her hand.”
Quite understandably, therefore, Khosa explicitly ruled that these decisions should not form a precedent for future cases. This demonstrated the courts’ discretionary authority and Khosa’s arrogance to prioritize personal circumstances over strict legal principles.
This was also interpreted as his confession that the ruling was highly contextual, controversial and indefensible.
Khosa’s ruling had a domino effect. It is argued that the Chief Justice’s “soft” stance on Sharifs may have subtly encouraged the lower courts to adopt a lenient approach towards their cases. And the time proved that this did set a tone and paved the way for Sharif’s bail on medical grounds.
On 25 October 2019, a two-member bench of the Lahore High Court (LHC), led by Justice Baqar Najafi, granted medical bail to Nawaz Sharif in the Chaudhry Sugar Mills case, leaning heavily on compassionate grounds, citing his “deteriorating health condition”.
The IHC followed suit the next day. A two-member bench, led by Chief Justice Athar Minallah, granted him interim medical bail in the Al-Azizia Steel Mills Case, where he was serving a seven-year sentence. This decision was also based on his “critical health condition”.
On 16 November 2019, the above-mentioned two-member bench of LHC, led by Justice Najafi, heard Sharif’s petition to travel abroad for medical treatment.
The petition was based on medical reports and assurances from his legal team that his condition was critical and that the required treatment was unavailable in Pakistan.
The court allowed Sharif to go abroad for four weeks for medical treatment nd over-stay overseas if required under medical advice. This was seen as an unprecedented leniency toward Sharifs.
It was argued that Khosa had demonstrated a selective interpretation of legal precedents in Sharif’s appeal cases. Rather than adhering to the strict standards set by previous judgments, he interpreted the law in a manner that benefited Sharifs. His rulings did not fully align with Pakistan’s existing legal provisions for criminal cases.
Some legal experts noted that similar cases involving less influential individuals did not receive such favourable interpretations. This is how, the critics argue, a Chief Justice set an unenviable precedent for judicial partiality.
The sad saga continued.
(To be continued)
The writer is a former diplomat, based in Canberra and can be reached at [email protected]