Daily Times

Lahore High Court (LHC) Chief Justice Muhammad Qasim Khan is known for calling a spade a spade. And his recent comments, whereby he termed the Army the country’s “biggest land grabber” were no exception. Whether this signals more confrontation between the judiciary and the military remains to be seen.

That being said, the Chief Justice didn’t stop there. He went on to accuse the Army of seizing 50-kanals-worth of land belonging to the court before confirming that a letter would be sent to the COAS in this regard. Then came the pièce de résistance. CJ Khan made a quip about how those wearing the uniform were meant to serve and not rule over others as if a king.

These grave reproaches were made while Justice Khan was hearing the case of three citizens seeking an order against the Defence Housing Authority (DHA) over “illegal” occupation of land lawfully leased from the Evacuee Trust Property Board (ETPB). There have been other allegations of a similar nature. One woman told this scribe, on condition of anonymity, of how she bought a plot in 2005. Then, when she wanted to sell it some eight years later, the DHA presented her with the paperwork for a different plot, at a much lower market rate. And despite seeking recourse from the courts, she still has not received justice.

After the Chief Justice’s remarks, an image of the DHA land proposal (2016) for the LHC surfaced on social media. According to documents, the Housing Authority sought to swap the 50-kanal piece of land (situated in Mauza Sangat Pura) mutated in its favour while ‘handing over’ a 65-kanal plot (in Mauza Phulwaran) to the court. These are serious allegation and must be thoroughly investigated.

The independence of Pakistan’s judiciary has never fully recovered from the blow dealt to it by Chief Justice Munir’s so-called doctrine of necessity and the effective sanctioning of the dismissal of the Constituent Assembly in 1954. Since then, the upper judiciary has demonstrated willingness to legitimise the extra-constitutional actions of military dictators. The most infamous being the death sentence awarded to former prime minister Zulfikar Ali Bhutto on trumped up murder charges. Indeed, none of Justice Munir’s successors had the courage to oppose to defend the Constitution against dictatorship. The notable exception being Justice Kayani, who was known for his open criticism of the Ayub Khan regime.

Judges in the superior courts are now speaking truth to power, courageously and without fear. This hopefully marks the beginning of a new era where no institution remains above the law, one that was ushered in by Justice Isa

Nevertheless, it appears that things are gradually changing for the better. For some judges in the superior courts are now speaking truth to power, courageously and without fear. This is hopefully reflective of greater moves towards accountability across the board, marking the beginning of an era where no institution remains above the law. Justice Qazi Faez Isa set an important precedent back in 2019. In his 43-page written judgment on the TLP (Tehreek-e-Labbaik Pakistan)’s sit-in at the Faizabad Interchange in the federal capital, the Justice of the Supreme Court cautioned: “All intelligence agencies (including ISI, IB and MI) and the ISPR must not exceed their respective mandates.” He went on to observe that the “Constitution emphatically prohibits members of the Armed Forces from engaging in any kind of political activity, which includes supporting a political party, faction or individual” while calling on the government to take action against any personnel who have violated their oath in this regard.

This good deed did not go unpunished and a few months later Justice Isa — who is scheduled to become the country’s next Chief Justice in 2023 — faced charges of financial misconduct for failing to disclose information about his family’s foreign assets. He was vindicated this week as the Supreme Judicial Council (SJC) quashed all allegations against him.

Some members of the legal fraternity believe that judges should remain measured in their remarks, whether speaking out against law enforcement agencies, the military or civil servants. The reasons for this are simple. Firstly, an individual cannot defend himself against general comments in the absence of any formal mechanism. And even if this were not the case, it would not help the litigant who then has to present the case before the same judge. Secondly, such remarks are almost always counter-productive and serve as sound bites while fuelling a sensationalist news cycle. Thirdly, judges ought to dispel any notions that they are allowing a bruised ego to do the talking. Lastly, the fact that some judges only discover newfound courage in the final days of their tenure cannot be ignored.

The Army, for its part, must recognise the damage done by land projects like the multiple DHA set-ups to hard won public goodwill. This is long overdue and ultimately the military will have to be held accountable for allowing the construction of private dwellings on government land. In addition, the Army needs to be mindful of the fact that judges’ deliberations are not made against the institution — which defends the county against both internal and external threats — but against against the presence of military personnel working in civilian domains.

The writer is an award winning investigative journalist. He reports on politics, economy, militancy, human rights and regional affairs and can be reached at shrnaqvi3@gmail.com. He tweets @hassannaqvi5