Pakistan’s Judges Are on a Mission. But What Is It?
The chief justice of Pakistan’s Supreme Court, Mian Saqib
Nisar, is a man on a mission. Our senior-most judge wants to rid the country of
corrupt politicians, and he wants us to eat hormone-free chicken. “The aim of
my struggle is clean air, clean water, pure milk,” he told lawyers last week
during an impromptu stop by the cafeteria of the bar association in
Islamabad, the capital. He was asking for their help. Also on his to-do list:
fighting against hepatitis and cancer, and for a fair price for crops.
Nisar has said one reason Pakistan isn’t a superpower is
that Pakistani gardeners take way more
smoking breaks than their Chinese counterparts. He has also said the
judiciary is like a village elder, and that its integrity should
not be doubted.
Village elders go a bit batty occasionally, but we can’t
say that about the chief justice because it would amount to a serious crime
called contempt of court. There is already a former senator in jail for committing
this crime, and two ministers may soon join him. (All three men are from the
governing Pakistan Muslim League-Nawaz, or PML-N.) And so Nisar goes around
exhorting fellow judges, lawyers and citizens at large to do their work not
“just as a job,” but with passion.
In July 2017 the Supreme Court invoked corruption charges
to remove Prime Minister Nawaz Sharif from office.
With passion. And last week a panel headed by Nisar passionately disqualified Sharif from heading the PML-N,
also invalidating
his selection of candidates to run on the party’s ticket in
Senate elections scheduled for March 3.
It is often said that judges shouldn’t speak, that only
their decisions for the court should. But Pakistan’s senior judges don’t just
want to do justice, they want to be seen and heard doing it. In his opinion in
a corruption case against Sharif, part of a scandal broadly known as
Panamagate, Justice Asif Saeed Khan Khosa quoted Mario Puzo quoting Balzac in “The
Godfather”: “Behind every great fortune there is a crime.” He called the mafia
novel’s epigraph “fascinating” before saying that the current case revolved
around the same notion.
Other judges so love the sound of their own voices that
they run the superior courts like talk shows. The Supreme Court’s agenda
increasingly seems to be set by what’s on television. Major news stories have
spurred the court to start proceedings suo motu, or on its own authority. The
hearings that follow then feed the news cycle again, with the justices making
headline-worthy comments and cracking jokes. Last year, one of them told the
attorney general that the government was like “the Sicilian mafia.”
Nisar recently invited a dozen famous journalists to attend hearings in
a case involving the rape and murder of a child. He wanted to ask them for advice:
What should be done about a TV anchor who had accused the suspected rapist of
belonging to a pedophile pornography ring? When the victim’s father began to
weep, the chief justice gave him his personal phone number, inviting the man to
call anytime if he wanted help.
But
judges who play saviors are a dangerous thing in this country. When an army
general takes over in Pakistan the first thing he does is ask judges to take their oath of office again; they usually
oblige. Then they interpret the Constitution to justify a dictator’s
claim to power.
If they can’t find a basis for that in the law books, they invent
it. The Supreme Court famously created “the doctrine of necessity” in 1954 to justify
Pakistan’s first application of martial law. Its logic basically was: The general
has an army under his command, so what do you expect us judges to do?
Pakistan’s judiciary has played handmaiden to military dictators
in other ways, too. It has hanged one elected prime minister on dubious charges(Zulfikar
Ali Bhutto, in 1979), and failed to do its part going after the assassins of
another elected prime minister (Benazir Bhutto, Zulfikar’s
daughter, who was killed in 2007).
Judges and generals do clash sometimes, but the result is no
better for the rest of us. In 2007, Gen. Pervez Musharraf dismissed a bunch of
senior judges and put them under house arrest. He also wanted the chief justice
at the time, Iftikhar Muhammad Chaudhry, to resign. Like
Nisar, Chaudhry hoped to fix Pakistan and had a tendency to tell politicians
and bureaucrats how to run the country. He resisted being pushed out and had to
be dismissed. Then lawyers rallied to support him, and their movement turned
into a broad-based opposition against Musharraf’s rule,
which finally forced the general out of power. Chaudhry was reinstated. But
what was one of his first acts after resuming his duties? He set up a panel
that exonerated his own son in a massive
corruption case.
At the same time, there are issues the Supreme Court won’t
touch. The Inter-Services Intelligence Directorate, Pakistan’s spy agency, has
been accused of rigging the 1990 general election by distributing millions of
dollars to political parties. A case about this has been dragging on for many years. There are also
hundreds of cases alleging that missing persons have been kidnapped and
tortured by intelligence agencies. Judges hardly ever hear those anymore.
Musharraf has said publicly that in a number of suits against
him the army ran interference to get the courts to grant him bail. Although
accused of abrogating the Constitution, Musharraf is allowed to live in
comfortable exile and, unlike Sharif, he has never been prevented from heading
his own party.
No wonder Sharif reacted with sarcasm to the Supreme Court’s
recent decision to remove his name as the PML-N’s leader, goading the justices
to search the law for a reason to “snatch” his own name from him as well.
“All decisions of the Supreme Court are Nawaz Sharif-specific,” he said.
He has a point. Nisar wants passion from the bench, but passion
is partisan, and we’d all be better off if Pakistani judges went back to
treating their work as just a job, and to quoting law books instead of “The
Godfather.”
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