Judging CJP Nisar

In our culture it is impolite to judge those who pass away. We only seek forgiveness for them. It is also petty to not hold any punches when someone is down or out.

But writing a testimonial for Chief Justice (retired) Saqib Nisar is no personal matter. As someone who lorded over the affairs of our country without restraint and compunction, his behaviour and actions must be gauged fairly and candidly to draw lessons. As a fiduciary exercising delegated power, his fanfaronade has consequences for this polity and for each one of us.

The main questions to be asked are these: Was his use of suo-motu powers constitutional (and its consequences beneficial)? Did he help or hurt judicial independence? Did he bolster the image of the judiciary as a neutral arbiter of the law? Did he strengthen the constitutional scheme of the trichotomy of powers or undermine it? Was he polite in demeanour and averse to attracting attention? Was his conduct becoming of a judge? Does the sum-total of his work leave behind an institution or a country with lasting or sustainable change for the better?

Eighteen years of work as a superior-court judge earned Justice Nisar the reputation of a serious-minded law-knowing conservative judge who believed in dispensing justice in accordance with the law. It was no secret that he detested how Iftikhar Chaudhry abused his powers as CJP. When Justice Nisar assumed office there were hopes that he would initiate judicial reforms, put his own house in order, take sustainable measures to rein in judicial adventurism and entrench wisdom and sobriety within our highest court. But 10 months into his tenure as CJP he flew off the handle.

CJP Nisar had publicly promised that the contours and scope of Article 184(3) would be determined under his watch. He didn’t keep his word but continued unabated his use of 184(3). With the manner in which he used this power and conducted his court (which left little room for advocacy or use of legal precedent and where the fate and outcome of matters seemed largely foreordained), the distinction between rule of law and rule of men began to wither away. His was the court of a monarch. Justice was dispensed as he wished.

Why does this matter? Justice Alito of US Supreme Court put it aptly in a recent case: “A judge can’t have any preferred outcome in any particular case. The judge’s only obligation – and it’s a solemn obligation – is to the rule of law.” “We are under a constitution, but the constitution is what the judges say it is,” Charles Hughes had quipped. But such approach to legal text and judicial work has come to be seen as hubris. The meaning of words can’t be stretched beyond a certain point; at least not without reducing the interpretive process to a farce.

CJP Nisar held in Mustafa Impex that the federal government meant the cabinet and that the PM had no power to act alone in the government’s name. In doing so he explained how the SC had also been defined to mean the CJP and SC judges. Yet he continued to treat 184(3) as the CJP’s handmaiden. When Justice Qazi Faez Isa asked during a hearing how 184(3) had been applied, CJP Nisar abruptly reconstituted the bench. (Justice Isa’s note recording his disquiet and recently Justice Mansoor Ali Shah’s note labelling this as an act usurping judicial freedom are on record).

This wasn’t the only instance of CJP Nisar using 184(3) powers to hurt judicial independence. Under his watch constitutionally autonomous high courts were pruned and treated as subordinate courts. He took suo-motu notice of cases and decided them even when the exact subject matter was pending adjudication before high courts. He ordered constitution of high court benches (which is a function of high court chief justices). We saw him inspecting a court in session and publicly ridiculing a district court judge even though high courts and not the SC oversee and inspect district courts.

The damage inflicted by CJP Nisar’s activism – by putting under a cloud public faith in the judiciary as a neutral arbiter of law, and creating political, economic and legal uncertainty – will haunt us for long. The harm caused by CJP Chaudhry’s activism pales in comparison. Post restoration, after Musharraf sacked and sent home the judges for a second time, the conduct and actions of CJP Chaudhry won for the judiciary an independent and powerful seat on the high table. If there was a troika, it now included the judiciary as a full member and not as an underling.

We saw Musharraf labelled a usurper, missing persons being brought to the SC on stretchers, the Asghar Khan case being decided and generals called out for political engineering. It seemed that the perception of the judiciary acting for and as an extension of the establishment was a thing of the past. Under CJP Nisar’s watch, that certainty evaporated: we got nothing but platitudes on missing persons; the treatment meted out to Rao Anwar stood out in comparison to how most others were denigrated; and the Asghar Khan case survived its burial, but only barely.

A study in detail about the timing of cases that bore political consequences, the remarks and interim orders passed (such as in suo-motu cognizance of foreign nationalities of newly elected senators and the initial order barring them from taking oath prior to the Senate election) and the media trials that followed, could be telling. Under CJP Nisar’s watch we saw threat of use of Art 62/63 in exercise of 184(3) powers being employed as a weapon, which brought back unpleasant memories of Art 58(2)(b).

If CJP Chaudhry founded judicially induced economic uncertainty by undoing the Steel Mills privatisation and blowing up the concept of solemnity of contractual obligations (especially in contracts by the state) in the name of fighting corruption, CJP Nisar took it to the next level. If CJP Chaudhry set a tradition of second-guessing the wisdom of contracts in the name of judicial review (eg the Reqo Dik case), CJP Nisar disregarded his own past decisions warning judges not to make policy choices, and began giving his policies retrospective effect.

It dawned on him one fine day that he should use his powers to build dams. Not only did he expropriate the executive’s domain in doing so, he also imposed fines in exercise of his judicial power and ordered that they be deposited in the Dam Fund. He threatened with treason proceedings those who criticised dams for not being the best water management tool for Pakistan. And he let it be known to all (including litigants before him) that contributing to the Dam Fund was the way to be in his good books.

In his term, questions about what does and does not fall within the judiciary’s domain and which matters call for restraint due to lack of judicial expertise lost all meaning. He ordered the executive to execute policy choices he made and, further, to have the legislature approve changes in law he desired (including what taxes should be imposed and how their proceeds are to be used). In view of the treatment of cement, dairy and beverage industries, not to mention private hospitals/schools, investors who continue investing in Pakistan ought to be celebrated for their bravery.

CJP Nisar’s court was a place everyone entered at his/her peril. It was painful and embarrassing to witness the indignity on display in our highest court: the culture of sycophancy knew no limits; the ridicule reserved for those who wished to speak their minds was in abundant supply; senior bureaucrats shook in their boots praying to be spared humiliation beyond what was the norm; senior lawyers who wished to preserve their self-respect stopped accepting briefs that required them to be before CJP Nisar. This was the new normal.

How do you make something that has already happened un-happen? CJP Chaudhry’s abuse of 184(3) set a precedent. Once it was there, it could be picked up and taken to the next level as CJP Nisar showed us. Here was a man who acted like a king bound by nothing. At stake was the very concept of rule of law, unadulterated by personal whims, popularity and other extraneous concerns. And yet there was no resistance from any quarter: the civil society, the bars, brother judges, the media or political parties.

Let us bid CJP Nisar farewell by borrowing a few words from his successor CJP Khosa’s version of Kahlil Jibran: “Pity the nation that acclaims the bully as hero…”

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu