Daily Times

Towards the end of his tenure, I had the privilege of witnessing Chief Justice Saqib Nisar’s decisions, rulings and orders firsthand. As I was still undergoing law school, albeit reaching the end thereof, my rather callow practical understanding of the organs of the state began to view Nisar as an impeccable and omnipotent entity, and his office as effectively the most powerful instrument of the state. I was enrolled in an internship programme in the Advocate General, Punjab’s office. Luckily, the office was situated inside the building of the Supreme Court in the federal capital, Islamabad, and thus it was very convenient for me to hear the proceedings almost throughout the weeks.

Sitting in Nisar’s courtroom initially felt like a spitting image of a layperson’s or of a young law student’s (aspiring to pursue a career in law immaturely for the sole purpose of fighting injustice) imaginary idea of a court duty-bound to deliver justice. A judge passionately protecting the underprivileged from injustice, while strictly holding the elite accountable is exactly what a morally correct citizen expects to witness. Nisar fairly fit that description. However, beneath this zealous bona fide aura were strata of self-centeredness, self-righteousness and a lust for fame, all of which surfaced as soon as (in a few days) I had let the first impression sink in.

Often and, in fact, on most days one could hear him deliver harangues and it would not be an overstatement that he was running a marathon of censures. Moreover, it was not rare to find him seizing the slightest of the opportunities to go off on a tangent, discussing at length issues or points not relevant to the dispute at hand and not argued by the counsel/s. A trend which, at least to me, became particularly noteworthy was that his speech usually assailed popular figures, senior public officials and bureaucrats, and owners of big corporations and wealthy businessmen. In other words, anyone who was in a position of social status and power higher than, equal to or a little less than his, Nisar displayed a serious disliking for. On the other hand, he rather ostentatiously tended to lend a sympathetic judicial ear to the downtrodden and the poor and needy. He would rule in favor of this class even in cases where the law was not ready to afford them redress. Instead of being based on principles of law and legality, his reasoning in several rulings appeared to be based more on grounds of his personal notion of morality, virtually divorced from law and was characterized by an emotive effort to engender populism and moralism.

The number of suo moto cases under Article 184(3) of the Constitution of Pakistan which allows the Supreme Court to exercise original jurisdiction skyrocketed. Concerns arose as to whether the Supreme Court was overstepping its jurisdiction by artificially extending this constitutional provision. It appeared as if the judiciary was overtly playing the role of the executive during a period of political turmoil, which is a blatant violation of the venerated doctrine of separation of power. One such case was that of the Pakistan Kidney & Liver Institute (PKLI). After Nisar’s tenure, the case came for adjudication before a three-judge bench headed by Justice Manzoor Ahmad Malik. The bench while observing the need for every institution to work within its limits and strictly avoid actions ultra vires, quashed all previous orders made by Nisar, and called the corruption inquiry ordered by him uncalled-for and an instance of judicial overreach.

Nisar, who was soon joined by Prime Minister Imran Khan, initiated a dam fund to counter the crisis of water shortage, urging the Pakistani population to make donations. It later transpired that this project was a farce, a Ponzi scheme of sorts which misled the nation when it was revealed that the government was spending these funds to pay its utility bills. The amount collected — which includes involuntary contributions through deductions from the salaries of government servants and military personnel — is roughly Rs. 10 billion which makes a meager one percent of the project cost which renders it a fiasco as well as a farce.

Anyone who has heard about Malik Riaz has also heard about his questionable character. People either identify him as a tycoon of Pakistan’s gated community or an accomplice in land grabbing mafia or as both. Be that as it may, it is a natural corollary of the right to a fair trial and a requirement of the due process of law that the accused be treated respectfully inside the court. Nisar, on the other hand, wasted no opportunity to lambast Riaz in open court during a number of proceedings. It appeared as if Nisar held a vendetta against him or his success. Despite Riaz’s dubious credibility in the eyes of the general public, he was perfectly entitled to be presumed innocent until proven guilty.

For the former premier Nawaz Sharif’s counsel, it was almost never a nice day to argue with Nisar in court. In one of Nawaz’s cases, he was represented by an eminent attorney named Khawaja Harris. Harris was only sparingly afforded the opportunity to present his arguments fully and received a special hostility from Nisar. Other attorneys of similar stature were treated more politely or less vehemently, and simply not equally. I witnessed Harris’ exasperated countenance on several occasions and on a few occasions, he even failed to hold back a reaction. In a different case, Nawaz was represented by an ordinarily recognized lawyer, Munawar Hussain Duggal. It is safe to say that he was insulted by Nisar when he was questioned brazenly if at all he had ever actually been hired by Nawaz. Nisar while questioning his competence, inquired sarcastically ‘Have you ever even met Nawaz Sharif?’ To say the least, such disparaging remarks must have taken more than a negligible toll on Duggal’s self-confidence as an advocate and a heavy toll on Nisar’s reputation as an impartial judge.

Another notorious move by Nisar was the abrupt reconstitution of a three-judge bench into a two-judge one in a human rights case when he decided, on his whim, to exclude Justice Faez Isa Qazi after the latter had expressed doubts regarding the applicability of Article 184(3) to the matter at hand. Apparently, Isa J was guilty of an attempt to ensure the relevance, suitability, and applicability of a constitutional provision to the matter in question, of avoiding the extension of this provision to unnatural lengths, and of being wary of the court overstepping its jurisdiction. Clearly such concerns hardly seemed to ever bother Nisar who had developed a mania for the invocation of this provision. Isa J later criticized this bold move as ‘unwarranted and unprecedented’, adding that it ‘undermines the integrity of the system and may have serious repercussions.’ Justice Mansoor Ali Shah who was the second judge in the newly constituted bench, while expressing serious concerns about the impartiality and independence of the judiciary, described Nisar’s decision as an attempt to ‘silence dissent or dampen an alternative viewpoint’. Furthermore, it is highly likely to have violated Order XI of the Supreme Court Rules 1980 which deals with the ‘Constitution of Benches’.

His motive of enthusiastically protecting the ‘Fundamental Rights’ where a matter of ‘public importance’ was relevant unfortunately seemed only inadequately sincere. Beneath the apparent cause of serving justice and humanity, there was an underlying urge (or rapacity) to become noteworthy and popular. This, however, became a strange arrangement since what was underlying was more visible and discernible.

Nisar’s tendency to indulge in a loose talk led him to deliver a sexist statement during a speech at a public forum. He quoted the former British Prime Minister Winston Churchill’s statement: “A good speech should be like a woman’s skirt; long enough to cover the subject and short enough to create interest.” This suggestive comment received quite a backlash on social media and was particularly taken up by the Women Action Forum, which organization, backed by another organization, namely the Women Lawyers Association, called upon Nisar to issue a public apology to the women of Pakistan.

I agree as many would, that individual’s occupying prime offices must not be judged by superhuman standards. Having said that, it is perfectly reasonable to expect such individuals to conduct themselves in an extraordinarily responsible manner and to utilize their influential positions to promulgate better, progressive ideas in society, and to act and speak with political correctness.

It is difficult to say what caused Nisar to act in such a frenzied manner. Was it the conspiracy of arm-twisting by the deep state, the starting point of which was the Panama Papers case? Was it the virtual vacuum created in governance which resulted in the failure or passivity of executive, as a consequence of which the Chief Justice felt empowered and the general population began to rely on his office for redress? Or was it simply judicial activism, which is often perceived as having positive and decent connotations? One simply cannot decide the reason or cause with sufficient certainty.

Nonetheless, what one can reasonably gather and observe is that it was more of a judicial overreach than activism, which was in dire need of being constrained.

The writer is a law graduate of the University of London International Programme. He can be reached at muhammad.essa.fassih@gmail.com