Maligning
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Saad Rasool |

Thousands of years of human history bears testament to the fact that when dynasties and empires are faced with imminent decline, they resort to taking extreme measures for the sake of survival; which, in turn, accelerate their collapse. Much like Caesar’s marching on the Senate of Rome, and Pharaoh’s pursuit of the Israelites.

Mr. Nawaz Sharif is perhaps no Pharaoh, nor can he be counted in the same league as Caesar. However, his tirade against the judiciary, during the GT-Road rally, culminating in a reference being drafted (on behalf of the Speaker) against Mr. Justice Asif Saeed Khosa, has all the signs of a desperate individual whose dynastic dreams are finally crumbling underneath the weight of constitutionalism and the law.

The Speaker of National Assembly, at the behest of his political master, has decided to directly attack the integrity and esteem of the honorable Supreme Court

The party and mindset which attacked the honourable Supreme Court of Pakistan in 1997, is at it once again. In a modern day reenactment of that abysmal episode – when PML-N loyalists, under the authority and command of Mr. Nawaz Sharif, ransacked the highest cathedral of justice in our land – the Speaker of National Assembly, at the behest of his political master, has decided to directly attack the integrity and esteem of the honorable Supreme Court, by singling out Mr. Justice Asif Saeed Khosa, who headed the five-member Panama case bench.

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Before discussing the merits of this drafted reference, and (importantly) its timing, it is perhaps pertinent to point out that (for now) the Attorney General of Pakistan has claimed that no such reference has been “filed”. Fair enough. But, despite this clarification, two immediate issues arise: 1) No one has claimed that such a reference will not be filed in the coming days, or that PML-N’s political machinery did not draft this reference; and 2) By drafting this reference, which has now been circulated throughout our media waves, has the PML-N not already damaged the integrity and prestige of our judiciary? In particular, have they not (already) attempted to make Justice Khosa controversial? Is this not a similar strategy to the one that was adopted against the military, during Dawn Leaks?

Be that as it may, let us turn to the merits of the reference that has been drafted, along with a review of the relevant constitutional provisions.

Article 209 of the Constitution envisions that a judge of the honourable superior Courts may be ‘removed’, on account of ‘incapacity’ or ‘misconduct’ (only), through recourse to the Supreme Judicial Council (SJC). And for this purpose, the SJC follows the procedure delineated under the ‘Supreme Judicial Council Procedure Of Inquiry, 2005’. Importantly, Rule 14 of the 2005 Rules stipulates that in case a frivolous reference is filed, “with the sole intention to malign a Judge, or scandalising the Court or to undermine it in any form whatsoever”, the SJC may take action against “all those” who were involved in the filing of such a reference.

The drafted reference submits that Justice Khosa is either “totally ignorant of the provisions of the Constitution” or is “prejudiced” against constitutional offices of the State, and has thus violated “norms of decency”, amounting to conduct that is “unbecoming” of a judge.

Speaking of frivolous references, the one drafted (not filed) on behalf of Speaker (to the extent that it is available in the public domain) primarily raises the following grievances: 1) Justice Khosa deemed the Speaker to be a “loyalist” of Mr. Nawaz Sharif; 2) Justice Khosa did not appreciate that the Speaker did not have detailed evidence/JIT Report before him, at the time of disposing off reference against Mr. Nawaz Sharif; 3) by making observations against the Speaker, Justice Khosa “breached” the privileges afforded to proceedings of National Assembly; 4) Justice Khosa’s observations against the Speaker “encroach upon the sovereignty and sanctity” of the Parliament; 5) Speaker is not a “subordinate” office of the Federal Government; and 6) by making observations against the Speaker, Justice Khosa has also “besmirched the image of Pakistan”.

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As a result, the drafted reference submits that Justice Khosa is either “totally ignorant of the provisions of the Constitution” or is “prejudiced” against constitutional offices of the State, and has thus violated “norms of decency”, amounting to conduct that is “unbecoming” of a judge. The drafted reference further argues that Justice Khosa’s continuation as a judge, and further elevation to the post of CJP, would “encourage” him to “write such biased, unfounded and disputed judgments”, which is why he should be removed.

While filing a reference is within the constitutional right of the Speaker, it is important to ask the (worthy?) Speaker and PML-N a few questions: are Justice Khosa’s observations, in regards to the Speaker, incorrect? Did the Speaker not favor Nawaz Sharif in the Parliament, by not sending his case to the ECP? Does anyone in PML-N really think that the Speaker was acting in a dispassionate and fair manner, when he dismissed all references against Nawaz Sharif (regarding Panama), while forwarding those against Imran Khan and Jehangir Tareen to the ECP? Was he really being a non-partisan Speaker in that moment? Did he do that in the interest of ‘Parliamentary Sovereignty’?

Also, where was all this chatter about Parliamentary Sovereignty when PML-N supported the honorable Court in making observations against PPP’s Speaker, at the time of Yousaf Raza Gillani’s dismissal (PLD 2012 SC 774)? Did Nawaz Sharif and PML-N forget the importance and sanctity of Speaker’s office, as well as the Parliament, back then? Is it not established law that the Supreme Court can pass directions about ‘administrative’ decisions of the Speaker?

The truth is that when PML-N’s verbal threats against the judiciary – from Saad Rafique’s ‘lohey ke chaney’ to the barbaric speech of Nihal Hashmi – failed

Just as importantly, why did the Speaker wait till now, when the Review Petition has been filed, before drafting a reference against Justice Khosa? These observations were passed by the honorable court in its decision dated 20th April, 2017. Why wait for almost 4 months? Did the Speaker, or his legal advisors, just read the full judgment now? Or is this, instead, simply the latest in a series of direct attacks launched by PML-N, against the judiciary, in the aftermath of the Panama verdict?

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The truth is that when PML-N’s verbal threats against the judiciary – from Saad Rafique’s ‘lohey ke chaney’ to the barbaric speech of Nihal Hashmi – failed, the party resorted to exerting pressure against the judiciary through a GT Road rally. When that did not pull enough crowds to achieve their political objectives, Mr. Nawaz Sharif started the rhetoric of “five people” having robbed him of the sanctity of vote. When that did not work out according to PML-N’s plans, this latest (direct) attack on an honorable judge has been launched. All in a hopeless attempt to intimidate the judiciary or (at the very least) to make the Court a controversial institution.

There is no doubt about that fact that Article 209 should be activated. That judicial conduct must be scrutinized through the accountability mechanism of Supreme Judicial Council. And the honorable Court would do well to actively pursue (and decide) the pending references against several members of the superior judiciary. But let us not mistake this reference as anything other than a partisan hit-job. A carefully designed and mala fide move, at the eve of review proceedings, aimed at making the bench controversial, and perhaps even getting it reconstituted.

In the past (particularly during Iftikhar Chaudhary years), the honorable Court has advocated the mantra of institutional integrity – even when it was not required (e.g. during Arsalan Iftikhar case, and challenge to the 18th Constitutional Amendment). However, at present, institutional integrity and constitutional authority of the Court must be protected fiercely. The largest political party of Pakistan (by virtue of elected members) has declared an open war against the judiciary (and the Constitution). Their private conduct, political rhetoric, and this draft reference are a testament to this fact. And all those who believe in rule of law, must stand and be counted in defence of the constitutional framework.

If a dynasty is crumbling, then so be it. But we cannot allow our constitutional institutions to be damaged in the debris.

Saad Rasool is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.

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