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Judicial activism is hurting governance in Pakistan

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Nisar has said one reason Pakistan isn't a superpower is that Pakistani gardeners take more smoking breaks than their Chinese counterparts.

BY: Mohammed Hanif

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, cancer, and for a fair price for crops.

Nisar has said one reason Pakistan isn’t a superpower is that Pakistani gardeners take 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 saviours 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, 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.

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.

Mohammed Hanif is the author of the novels ‘A Case of Exploding Mangoes’ and ‘Our Lady of Alice Bhatti,’ and the librettist for the opera ‘Bhutto.’ Source: -NYT Syndicate

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