How judiciary in Pakistan has always been the handmaiden of army and its generals

Pakistan’s former Chief Justice had reportedly told a judge not to free Nawaz Sharif and his daughter Maryam before the 2018 general elections

Vivek Katju November 28, 2021 12:11:28 IST
How judiciary in Pakistan has always been the handmaiden of army and its generals

The Supreme Court of Pakistan, Islamabad. Wikimedia Commons

Pakistan’s judiciary has been the handmaiden of the generals since army chief Ayub Khan staged the first coup in 1958. The judges sanctified that coup and later army coups too. While doing so, on each occasion, they broke their oaths to uphold the Constitutions and the law. Even during periods of civilian rule most judges have been ever willing to do the army’s bidding. A glaring example of such craven conduct became public this month. And, the judge involved is no less than a former Chief Justice of the country.

An affidavit sworn before a notary on 10 November in London by Rana Muhammad Shamim, who was Chief Judge of the Gilgit-Baltistan (in POK) Supreme Appellate Court, came in the media in Pakistan on 15 November. Shamim stated that in July 2018 Saqib Nisar, then Chief Justice of Pakistan, directed a judge of a High Court in Pakistan to deny bail to Nawaz Sharif and his daughter Maryam Nawaz till the country’s 2018 general elections were over. Shamim disclosed that the conversation took place in his presence. He also said that he told Nisar that both Nawaz Sharif and his daughter were falsely implicated and wrongly sentenced. To this Nisar said, “Rana Sahib the chemistry of Punjab is different from Gilgit Baltistan.”

Not surprisingly, Nisar has denied the contents of Shamim’s affidavit. A case has also been lodged against Shamim for swearing a false oath and making allegations against Nisar to help his benefactor, Nawaz Sharif. It may be mentioned that the Pakistan media has not disclosed the name of the High Court judge who is mentioned in Shamim’s affidavit.

Six days after Shamim’s affidavit came in the media, a Pakistani website FactFocus released an audio clip in which Nisar is clearly heard telling an unknown person that the institutions — that is how the Pakistan Army is sometimes referred to in Pakistan — want Nawaz Sharif to be sentenced and his daughter too. This is because Imran Khan has to win. The unknown person is heard muttering that he does not have enough to act against the daughter. In response, Nisar says that he told his friends that but they are insisting and saying that the independence of the judiciary will then be in question. Nisar has called the audio fabricated, but FactFocus asserts that it has been forensically verified by a US company Garrett Discovery.

The audio clip and Shamim’s allegations are deeply embarrassing for the Pakistan Army, Imran Khan and of course the judiciary. They confirm the widely held perception in Pakistan and abroad too that the army adopted all means to ensure that Nawaz Sharif lost the 2018 election and that Khan succeeded in it. Hence, the sobriquet “selected” instead of “elected” which is used by Khan’s political adversaries to describe his political position is apt. The army’s publicity machine is now trying its level best through its friendly media channels to cast aspersions on Shamim and FactFocus as well as Garrett Discovery. They are also using intimidation; Garrett Discovery executives have claimed that they have received threatening phone calls.

It is doubtful if steps taken by the army and the Imran Khan government will quash the doubts that have arisen. Indeed, Shamim’s affidavit and the audio clip will erode Khan’s credibility further. It is by now largely accepted that Khan has been unable to provide effective leadership. Despite cracks in his relationship with Army Chief General Qamar Bajwa, he continues to enjoy the force’s patronage till now. However, questions are arising about how long will the status quo last. This is an issue relating to the fate of a government. More important matters arising out of the Shamim affidavit and the audio clip relate to Pakistan’s institutional and constitutional structure, including those relating to the country’s judiciary.

In an editorial on 22 November, the respected Pakistani newspaper Dawn wrote: “The system cannot bear much more without sustaining irreparable damage to its prestige and credibility. That is why its custodians must move urgently to uncover the facts and act on the findings.” It went on to add, “In all this murkiness, what is clear is that the superior judiciary cannot remain on the fence in this saga. There has been for too long a steady drip-drip of corrosive stories — some reported, others whispered behind closed doors — about outside influence in the halls of justice.”

Some brave Pakistani judges have been conscious of the sorry state of the judicial organ of the state. However, it is unlikely that the judiciary can be restored to health without the Pakistan Army giving up its iron grip on the country. Its hold is not reduced even during periods of civilian rule. Its popularity among the people may sometimes go down a notch or two, but it has instilled in them the firm belief that it is the only shield against India. That means a basic level of un-eroding popular support for it.

Is there hope that the Pakistani judiciary will ever be able to become independent? This is unlikely for as an institution it has always bowed to the generals. It used the dubious doctrine of “state necessity” to legitimise all army coups. It sent Prime Minister Zulfikar Ali Bhutto to the gallows in 1979 in what many judges themselves concede was nothing but judicial murder. Even now in cases where it pulls up the Pakistani security forces — such as on the “disappearances” of persons in Balochistan it ultimately allows the forces to get away with their illegal acts. There is also little doubt that the Pakistan Supreme Court acted against Nawaz Sharif and his daughter in the Panama Papers cases on very flimsy grounds. It is not that the Sharifs are honest and clean but the judgements against them were full of bias against them.

As an institution, the Pakistan judiciary is not going to heed to the voices within which are calling for it to act in accordance with the Constitution. Like other organs of the Pakistan state, it will always bend and remain distorted letting the men in khaki prevail.

The writer is a former Indian diplomat who served as India’s Ambassador to Afghanistan and Myanmar, and as secretary, Ministry of External Affairs. Views expressed are personal.

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