AFTER demonstrating judicial restraint for the past several months, the apex court has finally responded strongly. One senator has been sent behind bars and is barred from holding public office for five years over contempt of court; two federal ministers are facing the same charges. Contempt notices have also been issued to Nawaz Sharif and his daughter Maryam Nawaz by the Lahore High Court.

But that has not deterred the ousted prime minister and his loyalists from attacking the judges. The confrontation between the judiciary and Sharif has become ugly and destructive. Neither side seems to be relenting. To many, it appears like a no-holds-barred clash of egos.

In fact, Sharif’s tenor has become more defiant and hostile after the Supreme Court’s latest action. The daughter who has now taken centre stage in national politics is far more vitriolic in her statements. It is not just about being hurt by the court ruling that disqualified a third-time prime minister and put the entire family in the dock; in fact, it is mainly to do with the sense of hubris that drives Sharif to carry out his anti-judiciary campaign.

Whenever the apex court has tried to assert itself, it has faced a backlash from the executive.

The Supreme Court has not backed down, and, in fact, appears to have gone on the offensive. “If the judges of this court were weaklings or feeble at heart and if they could be frightened or browbeaten by verbal assaults or naked threats, then the respondent, namely Senator Nehal Hashmi, had surely made a valiant attempt at that. It, however, appears that he and those he wanted to obey or please are poor judges of men,” Justice Asif Saeed Khosa stated in his ruling.

It is rare that judges enter into polemics and use such strong language notwithstanding extreme provocation from the other side. Could this show of anger possibly cloud the contempt-of-court proceedings against the Sharifs and the two federal ministers?

Indeed, no one can condone the outrageous and threatening language used by Nehal Hashmi against the honourable judges and their families. Yet slapping a jail sentence on him and unseating him (in the Senate) after he had tendered an unconditional apology does seem too severe, and can open the apex court to criticism and allegations of being ‘vengeful’.

It is apparent that the tirade launched by Sharif loyalists is a calculated political move and is meant to bring the judges under pressure as the accountability court comes close to winding up the graft case against the former prime minister and his family. Sharif is also playing the victim card to win public sympathy and mobilise supporters for the coming general elections.

But the judges are expected to exercise prudence. It is indeed a testing time for the judiciary as it is seen to adopt an overly active approach. There is always the danger of the judiciary becoming politicised if it encroaches on the domain of the executive and the legislature. Previously, we saw how the sanctity of the apex court was damaged under former chief justice Iftikhar Chaudhry. It is extremely harmful for the institution if judicial rulings are seen as being driven by populism.

This tendency is now apparent as the clash of institutions turns serious. While it is wrong for political leaders to demean the judiciary it is not becoming of the top judge to indulge in public debate. And it is not appropriate for judges to respond to every criticism or defend themselves in public. They must only speak through their judgements.

Indeed, the present confrontation between the judiciary and the executive is not unprecedented. We have witnessed such tensions between the two pillars of the state in the past as well. It is a manifestation of a systemic failure. For the most part of the country’s history, the judiciary largely remained subservient to the executive — both under civilian and military rules. That clouded its independence.

Whenever the apex court tried to assert its authority it would face a strong backlash from the executive. The first thing any military regime would do was to purge the top judiciary to remove any legal challenge to its power. That’s how military dictators would obtain legitimacy from the Supreme Court.

This tendency to control the judiciary was equally strong during civilian rule. We have seen every elected government getting into a confrontation with the Supreme Court since the 1990s. It was the clash with the then chief justice that contributed to the fall of Benazir Bhutto’s second government in 1996 beside other reasons.

But for Nawaz Sharif, who enjoyed the blessing of the establishment in the past, it has been a totally different story. Unlike as in the Bhuttos’ case, the judiciary has traditionally been soft on the leader from Punjab. Only Nawaz Sharif’s government could get away unpunished after storming the Supreme Court and dividing the judges. The then chief justice was sent packing by his brother judges.

It was the darkest episode in Pakistan’s judicial and political history when the judges were allegedly bribed to rebel against the chief justice. It is with the same mindset that Sharif and his supporters are now attacking the judges. It is the storming of the court using different means. It is the arrogance of power and a sense of being above the law that is driving Sharif and his loyalists to confrontation.

Sharif certainly did not have any problem when former chief justice Iftikhar Chaudhry went into judicial overdrive during the PPP government and removed Yousuf Raza Gilani from office for contempt of court. He turned against the judiciary only when the law was applied to him.

Undoubtedly, there is a need for reforming the existing judicial system for the delivery of justice and fair trial. It is also true that politicisation of the judiciary and the judges engaging in public debate must be avoided. But Sharif’s campaign against the judges is politically motivated and self-serving. His idea of reform is not about the independence of the judiciary but making the latter subservient to his whims. This no-holds-barred confrontation must be stopped before it destroys the entire system.

The writer is an author and journalist.
zhussain100@yahoo.com
Twitter: @hidhussain

Published in Dawn, February 7th, 2018