Pakistan: Fair judgments should not need explanation and justification

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By

Imad Zafar

The problem with the concept of “contempt” is that it grants the people and institutions the status of Holy Cows. It gives the powerful people, groups and institutions the hegemony over punishing anyone who disapproves of their narratives or point of view. The phenomena of the Holy Cow or contempt was invented to keep the common men slaves to the elite and powerful.

In the subcontinent the colonial rule gave birth to the concepts of contempt and treason. Whosoever used to seek freedom from the Union Jack was considered a traitor and people were not given the right to protest or criticize the courts. It actually silenced the many dissenting voices and proved beneficial for the British rulers. Unfortunately this law was not amended, even after the partition.

Both the treason and contempt charges remained the same and as a result the institutions who had the shield of these laws became holy cows. It is considered blasphemy to criticise or question the self created religious doctrines of self claimed religious scholars and peers. It is treason to question the defence establishment for their rotten narrative of turning the country into a defence obsessed state. It is a contempt of court to criticize the decisions or hyper judicial activism of the courts. It is contempt of religion to question the faith merchants.

It seems that we in Pakistan are living in an era where it is all about convicting people under contempt, treason and blasphemy. The recent case of Nehal Hashmi, a PMLN senator who was sent to jail for one month and disqualified from his senate seat, is a clear indication that the honorable Supreme Court is finding it hard to justify the controversial decision of the Panama Papers case. The PMLN voters are of the view that judges are trying to use the contempt of court law as a shield to avoid the criticism from politicians and the masses. Irrespective of whether or not this allegation is true, right from day one it was evident that by taking the political case of the Panama Papers, the Supreme Court actually made a mistake.

It did not even matter that the decision will benefit Sharif or Mr Khan, it was a very simple point to understand that only the Supreme Court will be the loser in this whole scenario. The standard practice around the globe with judiciary is not to take up political cases as they eventually bring criticism from the followers of political parties. If it is necessary to take up such cases then the judiciary in civilised countries should act very cautiously and not pass remarks that eventually degrade the accused or petitioner.

Contrary to that, what we saw in the courts in Pakistan was strange and surprising. The sitting Prime Minister was called Godfather, the decision of the court that disqualified the PM not being relevant to the case. It was not a decision that can be called a balanced one and even the legal fraternity was surprised by it. Respected lawyers like Asma Jahangir and Ali Ahmad Kurd all termed it as a weak and somehow biased decision.

Mr Khan on the other hand, even with a proven evidence of an offshore company against him which he never disclosed in the nomination papers, was not convicted or disqualified. This gave the impression that the judiciary was acting on the instructions of invisible forces. It does not matter whether this is deemed right or wrong as Sharif and his daughter Maryam Nawaz have successfully built the narrative that the judiciary and invisible forces were working on the agenda to remove them from the political horizon and that the court’s decision was part of political engineering.

The mammoth public gatherings of Sharif is proof that the masses trust his narrative and the courts are thought to be siding with Mr Khan and the invisible forces. Though honorable Chief Justice of Pakistan Saqib Nisar has repeatedly said that the judiciary is free and not aligning with anti democratic forces, the followers of Sharif and a large section of civil society are not ready to believe them. One wonders why the honorable court did not learn from the country’s history that the fate of political leaders can never be decided through the courts. It is the masses that elect and reject them, the judicial decisions never in our history being able to finish the political careers or popularity of the politicians.

From the Agartala conspiracy case to the Zulfikar Bhutto hanging and the lifetime imprisonment and disqualification of Nawaz Sharif by the courts in Musharraf‘s regime, all the decisions are remembered as bad ones and that these politicians emerged even more powerful and popular after the controversial judicial decisions. Unfortunately the recent decision of Sharif’s disqualification is also proving to be another controversial decision and it seems history will again not treat it well. The hyper judicial activism is also making it difficult for the Government to function properly.

It is not the domain or duty of the honorable chief justice to visit hospitals, check water sewerage pipelines and address lawyer gatherings every day. One wonders why the judicial activism is only restricted to a weak civilian democracy and institutions and why it is not exercised in missing persons cases, Okara farms and DHA alleged scams? There are around 37 thousand cases pending in the honorable Supreme Court and in lower courts the numbers of unheard cases are in the hundreds of thousands. It would have been better to take up those cases instead of taking up political cases. Now in the current situation the honorable court has to bear the criticism as it is the election year and Sharif will not sit silently, in fact he will strengthen his narrative by becoming more vocal about the flaws in the judicial system and on the merit of his case which resulted in his disqualification.

The honorable court can charge him under the contempt charges but this will further strengthen his narrative and the credibility of judges will be questioned as a result of this. It will also not be easy for the court to charge Sharif under contempt as it can trigger a massive movement of PMLN workers and likeminded people against them. On the other hand if Sharif is not stopped he will further strengthen his case in front of the masses which will also ultimately result in the damage to the reputation of the Judiciary. In both scenarios it is a state pillar that will lose its credibility. The honorable court needs to show restraint and must at least revisit the case of Sharif’s disqualification in order to stop confrontations. The parliament too needs to stand up and must repel the controversial Article 62 of the constitution introduced by the dictator Zia-ul-Haq.

Voltaire once said that to learn who rules over you, simply try to find out who you are not allowed to criticize. As per Voltaire’s definition it is evident that politicians are not ruling us as they are the soft targets. Anyone can criticize them, punish them, hang them and send them to exile. The real rulers are hiding behind the shield of nationalism, religion, defence and contempt. They are the ones who are untouchables.

Musharraf, who suspended the constitution and imprisoned the judges of the Supreme Court, walked away easily making a mockery of the whole system. Justice retired Hameed Dogar and his accomplices, who defied the orders of the full bench of the Supreme Court and took oath under PCO, were never brought to justice. Mr Khan, who alleged that the Supreme Court was involved in the2013 election rigging, was never charged under any contempt charges. Molvi Khadim Hussain Rizvi, who openly and repeatedly abused judges and the judiciary, was not charged under any law. It is the political leaders and politicians who have always been punished.

This is actually the contempt of the ballot box and the masses and to point it out is not a crime. The bold and accurate decisions do not need justification and explanation, because deep down when you know you are right it really does not matter what the whole world thinks about it. If you feel guilt and need to give an explanation about it, then it is an indication you made the wrong decision. The brave people, institutions and nations always accept their mistakes, learn from them and rectify the mistakes. Hopefully all the players of the power chessboard and the institutions will soon realize that by damaging each other’s credibility they are damaging the foundation of the state itself. We cannot bear another incident like the fall of Dhaka which happened just because of the disrespect of the ballot box and the egos of a few individuals.

Imad Zafar

Imad Zafar is a journalist based in Lahore. He is a regular Columnist/Commentator in newspapers. He is associated with TV channels, radio, newspapers, news agencies, political, policies and media related think tanks.