“He who can, does. He who cannot, teaches,” said the Irishman, George Bernard Shaw. Are you aware that the current Chief Justice of Pakistan (CJP) Justice Saqib Nisar was the first-ever lawyer in the history of Pakistan who was appointed as the federal law secretary in 1997 by the then qualified, though today’s disqualified, prime minister Nawaz Sharif? Soon after he was elevated to the post of high court judge, and today he is the chief of the justices of Pakistan.
Having been preferred over judges who usually held this position, the CJP must either have been too good a lawyer himself or too good a friend of the former PM. The remains of such an arrangement perhaps got lost in history. However, it clearly raises an issue as to the conflict of interest the CJP may have in not only hearing the cases pertaining to the former PM, but also in giving directions to the prosecution, i.e. NAB, to hasten the trial. Ironically, it is others that are being accused of conflicted interests.
Recently, at a hearing pertaining the broadcast of false news regarding a ban on Nawaz Sharif and Maryam Nawaz speeches, the CJP furiously lectured the Pakistan Electronic Media Regulatory Authority (PEMRA) lawyer Salman Akram Raja over the conflict of interest he allegedly had in representing PEMRA while simultaneously also representing the former disqualified PM and his family.
Mr Raja very rightly went on to the back foot and withdrew his power of attorney from PEMRA cases. After all, being a senior attorney, he has to appear before the same justices for a number of years. However, if he were to speak his mind, he would have told the court that there emerges no conflict of interest in his representing the PEMRA and the Sharif family at the same time as PEMRA is a government institution, and functions irrespective of who is in the government. He did say this, but not with enough conviction.
For instance, the CJP remarked in one of the hearings on the Election Act 2017: “We have to draw the lines so that a looter could not become a party head. God forbid if a crook becomes a party head.” The CJP was clearly referring to the disqualified premier, although he may maintain that he was not. But this is why we have rules governing professional ethics in the first place
The question is whether the CJP rightly snubbed Raja after he himself has been heading the benches in almost all cases pertaining to Nawaz Sharif and his family, the very man who became the first stepping-stone to his becoming the chief justice.
The chief justice, being the bearer of supreme ethics, should have rightly recused himself from all the cases pertaining to Nawaz Sharif and his family on the sole basis that he was privileged above and beyond other deserving candidates with the post of federal law secretary by Nawaz Sharif.
The question remains as to why such an important ethical issue not yet been raised by any journalists, lawyers or political parties? Firstly, since the outcome of the decisions is synonymous with the desired result for everyone else except Nawaz Sharif, no entity even bothered to think about this issue, which requires probe or at least a discussion.
Had the CJP gone in favour of Nawaz Sharif in either of the cases, the reaction would have been quite different, especially from Imran Khan. Khan does not spare any who come in his way to premiership, be it his family, values or anything. Secondly, it became many anchors’ bread and butter to malign the sitting prime minister as that is the most preferred way by which the media makes the mare go; people love it. Just like Nawaz Sharif dug his own grave when he chose to side with the judiciary rather than the then PM Mr Yousaf Raza Gillani, Imran too may very likely be digging his. The only difference is that it may be relatively easier to pull down Imran Khan as compared to Nawaz Sharif.
It is very alarming to see the CJP showing such bias against a defendant even if he is apparently guilty, as this goes to the very core of rules of natural justice. For instance, the CJP remarked in one of the hearings on the Election Act 2017, “We have to draw the lines so that a looter could not become a party head. God forbid if a crook becomes a party head.”
Just like Nawaz Sharif dug his own grave when he chose to side with the judiciary rather than former PM Yousaf Raza Gillani, Imran too may very likely be digging his. The only difference is that it may be relatively easier to pull down Imran Khan as compared to Nawaz Sharif
The CJP was clearly referring to the disqualified Prime Minister Nawaz Sharif, although he may maintain that he was not, but that is why we have rules governing professional ethics in the first place. The CJP had clearly made up his mind already even before the decision of the trial court. If the CJP can make up his mind before the trial court’s decision, would the administrative judge not have made his?
Perhaps this is what Naeem Bukhari meant by referring to the term “judicial martial law” which seems to be in operation already. In essence, what it may mean is that now the judiciary will decide who will and will not be a parliamentarian as the new times have come. In effect, the Supreme Court would serve as the trial court under the umbrella of public interest matters.
Modern times require modern strategies; this could be an era for the so-called higher ethics. The unspoken plan seems to be that the judiciary and establishment will supplement each other as long as their end remains the same; one of which is to keep the parliamentarians in check and keep themselves unchecked, apart from the psychological gratification that comes from temporarily making the people happy. The other could very well be to keep them extinct from the word national in the so-called National Accountability Bureau.
The maximum a judge or an army officer has to face when he commits a blunder or plunder is compulsory or early retirement. From there on, the compulsorily retired judge becomes a practising lawyer often preferred over other brilliant lawyers for their deviousness, whereas the early-retired army officer becomes an employee of the armed forces again, only this time he does not wear a uniform.
The allegiance of this paper is not towards Nawaz Sharif or any other politician. The allegiance is rather towards the prime minister of this country if democracy is to survive at all; it is under the rule of law. No matter how guilty Nawaz Sharif may be, he must be given a fair trial; not because he was the but rather especially because he was the prime minister. If a prime minister cannot have a fair trial and is being called a crook or looter by the highest of justices, then there is no way we can present a positive image to the world.
Since Imran Khan is at the peak of power at this time, he is unable to see the possibility of his decline; just like Nawaz Sharif could not when he was at his peak. Nature does react when a man thinks he is invincible, whether one is a saint or a renegade.
The writer is a graduate of Cardiff University, UK and is a member of The Honourable Society of Lincoln’s Inn. He is currently practising law at Peshawar and Islamabad High Courts and the District Courts. He can be reached at [email protected]
Published in Daily Times, July 8th 2018.