From a Constitutional purist to be seen as a Judicial activist, Justice Saqib Nisar metamorphosed as the Chief Justice of Pakistan
D. Suba Chandran
International Strategic and Security Studies Programme (ISSSP)
National Institute of Advanced Studies (NIAS), Bangalore
The Dawn group in Pakistan, one of the leading newspapers not only in Pakistan, but also in the entire region considered Justice Mian Saqib Nisar as Pakistan’s man of the year – 2018.
The Chief Justice of Pakistan would be long remembered for his bold judgements including the one that disqualified a popularly elected Prime Minister – Nawaz Sharif and placed him behind the bars. Had it not been for the disqualification of Nawaz Sharif, the PML-N would have faced the elections in 2018 with better confidence; who knows, it would have even changed the results of 2018 elections both at the national level and in Punjab, thereby leading to a different political path.
After serving as the 25th Chief Justice of Pakistan since December 2016, last week (17 January 2019) Justice Nisar retired. Justice Asif Saeed Khan Khosa has already been appointed as his successor. No other Chief Justice since Justice Iftikhar Muhammad Chaudhry attracted the national limelight as much as Justice Nisar did. Remember, between Justices Chaudhry and Justice Nisar, there were Justice Jillani, Justice Naisrul Mulk, Justice Jamali and Justice Khawaja. But none of his immediate four Judges gained the national attention as Justice Nisar.
While Justice Nisar was known for his brave and correct judgements, he was also sometimes made questionable decisions. Now, he is retired, how will the Supreme Court and the rest of Pakistan remember Justice Nisar? In short, what would be his legacy?
Will the new Chief Justice – Justice Khosa pursue the path that Justice Nisar charted out, or will he follow his own? If he does, what would happen to some of the projects that Justice Nisar has initiated ranging from judicial activism and beyond?
Justice Saqib Nisar and Justice Iftikhar Chaudhry: A Short Judgement
Undoubtedly, during the last decade, no other judges were as popular as these two have been. Though both the Judges has an illustrious but quiet history before being appointed as the Chief Justice of Pakistan, it took a huge turn after they were appointed.
Remember, Justice Iftikhar Chaudhry was first appointed by Perez Musharraf, the then President of Pakistan in 2005, but asked to resign subsequently in 2007. When Justice Chaudhry refused to do so, he was suspended. All hell broke then for Musharraf. Chaudhry fought against; the lawyers’ movement snowballed into a crisis – leading to Musharraf imposing emergency and subsequently wilting down under pressure. Justice Iftikhar Chaudhry became a hero for standing up to a dictator-President, leading to latter’s downfall.
Later when reinstated, Justice Chaudhry became known for his suo moto references, primarily relating to the cases of disappearances in Balochistan.
Justice Nisar came quietly to become the Chief Justice of Pakistan in 2016. There were no high profile judgements, which attracted the media attention before he was appointed as the Chief Justice.
The big difference between the two is over whom they went after. Justice Chaudhry went after Pervez Musharraf, and also the Establishment subsequently after his reinstatement. Some of his questions over disappearances in Balochistan should have been extremely uncomfortable for the Deep State then. Justice Nisar, on the other hand, went after Nawaz Sharif and other political leaders. There were not many suo moto references against the Deep State. Instead the political leaders and bureaucrats had a tough time in his Courts listening to his judicial sermons.
Despite the differences, both the Judges had a huge fan following amongst the common public in Pakistan. The media followed them; both were in the front pages more often; their judgements were discussed perhaps more than all the previous Chief Justices.
Justice Nisar: From a Purist to an Activist
Justice Saqib Nisar was known for his conservative position on the role of the judiciary before he was appointed as the CJP. Did Justice Nisar change after becoming the Chief Justice of Pakistan?
Even within Pakistan, many consider so. Before becoming the Chief Justice, based on a few of his judgements, he was seen as a Judge who would want the judiciary to play a limited and a specific constitutional role vis-à-vis the Executive. One of his critic, a lawyer from Lahore has the following to comment: “He was only one of four judges in the Supreme Court who said the court should not get into the business of rewriting the Constitution after parliament had spoken. In that moment, he was a national treasure. This was the Justice Nisar a lot of people celebrated — and for good reason. The man who wrote… many other, solid opinions then became unrecognisable in the last year of his tenure as chief justice.”
The critics of Justice Nisar have a point. Even many newspapers in their editorials pointed out the same. For example, consider his favourite project to build the dams in Pakistan, and his zeal to collect funds for the same. Is it the job of either the Chief Justice of Pakistan or that of the Supreme Court to build dams?
The construction of dams and his efforts to create a “fund” for the same has been highly criticised by many within Pakistan, even within his judicial community. Justice Khosa, who takes over as the next Chief Justice of Pakistan has the following to comment: “Mian Sahib had once observed publically that he is left with only two ambitions in life, i.e. to build dams and to retire the national debt. I would also like to build some dams, a dam against undue and unnecessary delays in judicial determination of cases, a dam against frivolous litigation and a dam against fake witnesses and false testimonies and would also try to retire a debt, the debt of pending cases which must be decided at the earliest possible.”
There were a few other issues that Justice Nisar pursued, that were purely under the domain of the legislature and executive. Consider his efforts, statements, and visits relating to clean drinking water, hospitals and medical facilities thereof, encroachments upon the State land etc – did he encroach into the Executive branch?
True, the above was under the purview of the Executive’s functions; equally valid, that the Executive was doing a lousy job. However, is it the job of the Supreme Court to look into the day-to-day role of the Executive, or it should just stay as the custodian of the constitution?
One could conclude – Justice Nisar may have started as a purist, but ended as an activist.
Justice Nisar: A Dissenting Opinion
It was not easy to be Justice Nisar. Consider his period; the Panama crisis unfolded during his period as the Chief Justice. Imran Khan and the PTI, as the primary opposition made full use of the crisis and brought the nation to a standstill. There is no way, the judiciary and Chief Justice could have been kept away.
Despite the above, regarding the timing, there are severe questions on some of the judgements and actions were taken during his leadership.
The first and foremost is the disqualification of Nawaz Sharif from being the Prime Minister, and later being the leader of his party. While today, Nawaz Sharif is being investigated for numerous cases of corruption, along with his son and daughter, his disqualification case then built on a different premise. It was not corruption; instead, it was on whether he intentionally hid about his income while filing nomination.
Even newspaper editorials within Pakistan questioned the judgement that disqualified Nawaz Sharif, leading to his removal. Many referred the same to “judicial coup”. Was there enough case against Nawaz Sharif, which warranted disqualification?
The fierce criticism against Justice Nisar came against his efforts to build dams. While he has the right to believe on the need to have build dams in Pakistan, what he pursued to fulfil his personal belief will be challenging to accept as a part of judicial functions or within the scope of legal jurisprudence.
Consider the following: Justice Nisar created a separate fund to build dams. He has asked people – within and outside Pakistan to contribute to the same. However, then, his dam zeal went beyond. It did not remain a voluntary effort. Dawn, in its editorial, calling for an end the dam fund questioned the idea and commented, “the salaries of government servants and army personnel were subjected to deductions for the dam fund, contributions that could be described as involuntary.”
However, then, building dams became important for Justice Nisar. He was reported to have threatened the opponents of his dam idea with the use of Article 6 of the Constitution that deals with treason against the State.
Justice Nisar: What made him tick?
A simple answer to the above would be – People of Pakistan. He was one of the most adored person within Pakistan; no doubt, Dawn made him as the person of the year. Dissatisfied with the political corruption, bureaucratic high-handedness and nepotism, people saw him as a saviour. It was the helplessness against the above, made the people look at Justice Nisar as a deliverer.
Second, perhaps, the Establishment stood with him, maybe silently. Remember that big photo – of Gen Bajwa handing over the cheque to Justice Nisar for the latter’s dam fund? Unlike Justice Chaudhry, Justice Nisar went slow against the cases of disappearances involving the Deep State. There were no significant embarrassments for the Deep State during his period.
Third, the media. From TV discussions to Facebook and Twitter feeds, the print, electronic and social media gave a larger space to Justice Nisar. In most cases, rightly so.
Despite criticisms, one should appreciate Justice Nisar. It is not easy to shake the system. He should be remembered for instilling fear amongst the political leaders, irrespective of their position – that they would be held accountable. More significantly, for an ordinary man, he inspired faith in the judicial system, which is extremely important.
Farewell, Justice Nisar. You will be remembered for rekindling people’s faith in the Supreme Court.
The above analysis was first published in the Rising Kashmir