Daily Times

The apex court of Pakistan witnessed a mob intrusion by ruling political party in 1997.After 17 years, the nation and the world also saw a ‘shalwar’ hanging for ‘drying purposes’ on the apex court’s boundary wall during PTI and PAT’s Dharna. Ironically, on both instances, Mian Nawaz Sharif was the prime minister of Pakistan. Now when 2017 is at its finale, Pakistan is witnessing the open denunciation of the apex court in public processions by Nawaz, which is being duly reinforced by many ministers from the ruling party. Five judges of Panama case, three of Hudaibiya paper mills reopening judgement and three honourable judges of PTI leadership case are being referred which have nothing in common apart from being part of the apex court at one point in time. These honourable judges constitute almost 70 percent of the apex court mathematically although I believe every judge carries all of the court’s weight by himself as a part of the apex court morally, legally, socially and even constitutionally.

Historically, democracy in Pakistan has remained on the losing end in any relative comparison with the establishment; be it institutional, individual or scientific. It started with the dismissal of the first constituent assembly of Pakistan by the Governor General Ghulam Muhammad in Tamizud Din case validated by the court on plea of necessity. The first military takeover by General Ayub Khan was described as a “revolution” by the then apex court. General Ziaul-Haq’s takeover was legitimised through the “doctrine of necessity” although the coup was actually validated with decision on Bhutto’s death case judgement. On the contrary, Ziaul Haq’s dismissal of Muhammad Khan Junejo was invalidated only after the dictator had died. The apex court validated the coup of General Pervez Musharraf and granted unlimited powers to the military regime, including the power to amend the constitution. History has also witnessed two separate benches of the apex court assembled against each other and restored as well as suspended within minute’s famous eighth amendment to the constitution of Pakistan. The country has been governed under a suspended, modified and restored constitutional provision, which is another painful historical reality.

It may be by default or design, the verdict against Nawaz followed by judgments on PTI leadership and ‘Hudaibiya’ reopening has already thrown apex court into rough waters. If it decides to stop swimming, it will drown by its own weight. The only way out is to continue swimming. The people of Pakistan were not expecting such verdicts and strongly perceived that Nawaz and family shall manage an honourable exit despite being guilty. Now the people’s expectations have surged and cannot be ignored and must be factored in. The fair, unbiased and un-influenced able body of judges as publically declared by the honourable Chief Justice a couple of days before needs to prove its commitment and thus rewrite the judicial history of Pakistan.

Supremacy, sovereignty and jurisdiction of parliament has to be viewed within the confines of righteousness, justice and national interest. In any democracy, no parliament can legislate the way Pakistan’s has in the last few months. The right to represent the people if manifestation through a legislative act which runs divergent to norms of state function and institutional development is not only regrettable but warrants an immediate remedy and accountability to prevent its reoccurrence. The only available mechanism is the apex court. A country like Pakistan with just 10 years of continued democracy in its 70 years of existence and 11 years of judicial awakening needs to redraw its parameters based on ground realities rather than theoretical and classical conduct of western democracies.

Supremacy, sovereignty and jurisdiction of parliament has to be viewed within the confines of righteousness, justice and national interest. In any democracy, no parliament can legislate the way Pakistan’s has in the last few months

At one end, the apex court has to make sure that constitutional provisions are implemented by the most powerful institution of the state. On the other end, it cannot allow the constitutional powers to be misused or violated for self, family or party interest. Dictators’ acts of ‘breaking’ and democratic act of ‘misusing’ the constitutional provision become synonymous when observed logically. Any institutions, be they political or military, public or private, social or religious cannot commit moral, procedural, legal or constitutional transgressions.  The only mechanism or institution to ensure this is the apex court by design as well as by default. Leave it to history to decide whether the extent, degree, limits or boundaries of the powers or right exercised by the apex court was fair, justified, appropriate and importantly in national interest.

One option with the apex court is to get on ‘mute mode’ now after three historical judgements with focus on its long list of pending cases and institutional reforms demonstrating low involvement in state affairs, including politics and a degree of independence which needs to be justified publically like recently manifested.  Second option is a ‘working mode’ with relatively enhanced independence manifested through quick disposal of a few off the shelf balancing act cases and institutional reforms. Third and in my personal opinion ‘the option’ with apex court is a ‘proactive-mode’ characterised by total independence which need not be justified on media, manifested through judgments which demonstrate balancing acts and total involvement in all matters which are of public interest. Democracy, public policy and public interest have ‘public or people’ in common which provides apex court with the logic and legality to infringe in executive and political matters. These are extraordinary environments and testing times for the apex court where the status quo is not an option. The approach adopted and manifested will have direct bearing on the political, economic, security and social development of the country in the foreseeable future.

Apex court, please continue silently while creating opportunities to consciously dispel impressions of influence, bias, prejudice or selective justice through a pro-active approach manifested through a series of decisions. Don’t allow Panama verdict, Hudaibiya paper mills reopening judgement and Hanif Abbasi’s petition for disqualification of PTI leadership go in the judicial history of Pakistan as establishment driven or biased or may be unprofessional. It’s time for physical manifestation of a balancing act. It will establish credibility by default. Let the reality be proven by quantified display where approach, conduct and judgement is pro-active, multi directional, fair, unbiased and professional.

The writer is a PhD scholar with diverse experience and international exposure. He possesses conscious knowledge about phenomenon of terrorism and extremism coupled with realistic understanding of geo political, social and security environment

Published in Daily Times, December 20^th 2017.