Chief Justice who took on Pak politicians

RK Kaushik
Secretary, Punjab Government 

HE was a protégé of Pakistan’s establishment (Army and ISI) and did what was told to him by them. The 25th Chief Justice of Pakistan, Justice Mian Saqib Nisar, retired on January 17. The Judge played an important role in starting corruption investigations against former Prime Minister Nawaz Sharif, his brother and former Punjab Chief Minister Shahbaz Sharif, his daughter Maryam Nawaz, Pakistan People’s Party leader and former President Asif Ali Zardari, Pakistan Tehreek-e-Insaf leader Jahangir Khan Tareen, former Defence and Foreign Minister Khwaza Asif, former Railway Minister Khwaja Saad Rafique and many others. He also heard cases against Imran Khan and his elder sister, Aleema Khan, and passed orders. Overstepping his jurisdiction, he oversaw the construction of the Diamer Basha and Mohammad dams and created a fund for the same. He also inspected hospitals and supervised social development programmes, including population growth policies.

Judicial ‘overreach’

Justice Nisar challenged one of the foundational principles of democratic constitutional theory, according to which the judiciary’s role in executive and legislative affairs is circumscribed. He used his suo motu powers expansively and initiated cases on issues that he considered to be of pressing concern. He devised remedies too. The role played by human rights activists, civil society groups or the affected public was largely muted. The effect of Justice Nisar’s court has been perceived as undermining political institutions either by assuming the role and responsibility of political branches or by openly displaying contempt towards elected officials and bureaucrats. Justice Nisar’s interference in executive and legislative affairs exposed what many would consider the questionable side of judicial activism and its threat to the evolution of democracy in Pakistan.

Nisar was born on January 18, 1954, at Lahore. His father, Mian Nisar, was an advocate who belonged to an Arain family of Lahore and later became a Judge of the Lahore High Court. Nisar was educated at the Cathedral High School there, from where he matriculated and enrolled at Government College in Lahore. He graduated with a BA degree in 1977 and went to Punjab University, where he completed LLB in 1980.

In 1982, he enrolled as an advocate of the Lahore High Court. In March 1997, he was appointed Law Secretary in the Ministry of Justice and Law, a chief bureaucratic position. His appointment as the Law Secretary of Pakistan was confirmed by Prime Minister Nawaz Sharif immediately after being elected in the General Election held in 1997. He became a Judge of the Supreme Court in February 2010 and the Chief Justice on December 31, 2016. 

In 2010, his nomination for elevation as a Supreme Court Judge was initially rejected by then President Asif Ali Zardari in spite of a recommendation made by then Chief Justice Iftikhar Muhammad Chaudhry. Zardari instead elevated Justice KM Sharif, superseding seniormost Justice Nisar for promotion, and appointed the latter as acting Chief Justice of the Lahore High Court. Chief Justice Chaudhry suspended the appointment order and marked such actions as ‘unconstitutional’, using his constitutional powers granted by the Judicial Commission.

The Pakistan Supreme Court’s authority to review legislative and executive action to assess whether it is consistent with the Constitution is well-established, but in traditional democratic constitutions, the judiciary restrains itself from playing a prominent role in executive and legislative affairs. Judicial overreach that undercuts the democratic branches is not approved of.

In new and fragile democracies, however, courts tend to exercise more influence over other branches of the government, reflecting the recognition that these institutions may not have the capacity or willingness to enforce fundamental human rights and provide public services equitably and transparently. Articles 199 and 184(3) of the Constitution of Pakistan give superior judiciary the authority to make orders to enforce fundamental rights.

Dysfunctional governance 

The expanded role of the judiciary is visible in Sri Lanka, South Africa, Brazil and Colombia. In these jurisdictions, the role played by courts would, broadly speaking, not be countenanced in comparatively mature Western democracies. In the context of newer democracies, the challenge posed by dysfunctional governance is one of the central concerns of the judiciary. 

This ethos is encapsulated in the words of a former Chief Justice of India: “The court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning.” 

Fragile democracies

Where the judiciary positions itself as a replacement of political branches of the government, it runs the risk of stunting the growth of these institutions, and where the judiciary repeatedly shames the executive branch, it threatens to discredit democratic institutions. 

Under such circumstances, judicial activism may actually serve to promote the backsliding of fragile democracies towards authoritarianism, which is arguably what was witnessed in Pakistan since the lead-up to the rigged elections of 2018.

Despite being a close ally of the establishment, Justice Nisar would still be remembered as somebody who confronted the corrupt politicians of his country and punished them mercilessly with the powerful Army’s consent.