How will these two Justices be remembered by the people of Pakistan, on whose lives and fortunes they have had tremendous impact?
I don’t know either of them. I’ve never seen them. But if I were to go by the Urdu proverb which translates as: “the voice of the people is the drumbeat of the gods”, I’d say I know each of them pretty well. So much has been written and said about them that anyone who has had even a minimal interest in the matter, could not have remained aloof of forming an opinion about them.
Justice Khosa is known for his impeccable integrity in an age where hardly anyone holding high office has escaped the taint of at least some truck with venality. For this alone he must enter the ranks of the immortals.
And he is also known to be cast in the mould of the punctilious judges of old–reserved, remote, conservative. What brings added luster to him is his learning and ability. And his Panama Judgement will live on for a long time when much that surrounds us will have settled in dust.
Justice Saqib Nisar was a man of a different streak. A man after my own heart–a sensitive man whose method resonated with those who yearned for a just hearing, having given up hope of ever receiving justice. What he said spontaneously in unguarded moments, spoke to hopes of the quelled. When he raged, it is for the first time that the high and mighty shuddered, and the small man exulted in the vibrations of this shudder. Even the most underprivileged dredged up the confidence to go and knock at Justice Nisar’s door with the hope that they will get instant justice. For the first time I understood why the people of FATA set such store by Jirga trials which dispensed justice almost immediately, and practically at no cost.
These two great Justices were votaries of contending judicial traditions. One was for judicial restraint, and the other for judicial activism. One was for the system, and the other was for cutting across the sluggish meandering of the system, which in itself had become the cause of injustice.
Both these traditions have their merits. Judicial activism fills in many a gap created by shoddy governance and maladministration brought about by non- functional institutions.
In part it was judicial activism which brought the Panama case to the fore and set it on the path of trial. Though one does not know quite yet which way the camel will settle, but it is most probable that it is this case which may have given a new lease of life to Pakistan by retrieving it from the claws of vultures. It was also judicial activism which eventually brought Malik Riaz to Court and had his myth of immunity crushed. And there are so many other such cases which totally justified the cause of judicial activism and are its most cogent advocacy.
But then there are cases like the EOBI case of which Justice Iftikhar Mohammad Chaudhary took suo moto notice. And this case gave judicial activism a bad name.
This was a case in which EOBI bought certain properties at prices well above those of the market, with the difference shared between EOBI management and the sellers.
The chief villain of the most outrageous sale in this case was Malik Riaz Hussain, who sold off DHA Islamabad land at an unconscionable price to EOBI.
The suo moto notice in this case was thus entirely justified till one took a peep behind the scene to discover that the person who fixed up this case for such notice was none other than Arsalan Iftikhar, son of the erstwhile Chief Justice. This he did to get even with Malik Riaz.
And his dad took prompt notice of the case when it aired on TV. And he went further. He took notice of ALL eighteen transactions in which the EOBI was involved without regard to merit, under the assumption that all were fraudulent.
And how did the case proceed?
Malik Riaz, for whose discomfort the entire case was crafted, walked clean out. He had not signed any document because he was not the owner of the property sold to EOBI. The owner was DHA Islamabad!
The second biggest fraud was committed by Eden Developers, who were not charged by FIA, and whose owners later fled the country. This firm belonged to a family related to the Chief Justice!
The third biggest sale was made by the honourbale Mr Aleem Khan. He was given a stay order!
All the others, at least half of whom were innocent, were charged and have been dragged from pillar to post for the last seven years. The case cannot proceed because in fair proceedings it does not have a legal leg to stand on. It is a pity that the succeeding CJs did not have the time to review the antecedents of this case.
It is cases like these which give a bad name to judicial activism. But it can always be argued that if the judge himself is corrupt, this should not be allowed to condemn the tradition of judicial activism.
However, the other side says that if judges act with restraint, this in itself also restrains the inequities that can issue from judicial activism.
It is between these two positions that the genuine plaintiff is left squirming, beseeching, hoping, begging.
But these two judges, each of whom stands as a counterpoint to the other, will both be remembered amid this debate but with much honour.
As I end this, I pray that the future will not reveal anything about these two judges which will compel me to eat my words. But whatever the case, the essential argument between judicial restraint and activism will still remain valid.