The lay people of Pakistan have their rights enshrined in the Constitution, but usurped and eroded in practice.
But the one right that could not be eroded was their right to arrive at analytical or instinctive conclusions with regard to how their state is actually being run. One of the things which most affects them about this reality is the rights of the elite who govern them. And prime among these rights was the right of the elite to loot the state with impunity. This right is not enshrined in law but in practice. The proof of this anomaly lies in the fact that the state has been looted to oblivion; the elite have done it; but none of them has ever paid for it.
This applecart of comfort was upset by the Panama Papers, the trial of Nawaz Sharif, and his subsequent conviction. From that time onwards it has been the endeavour of the elite to undo the consequences of the Panama trial, erase the ever-threatening precedent which this trial established, and restore the right of the elite to loot, along with its erstwhile guarantees of immunity.
It is to restore this social and class privilege, rooted in criminality, that Pakistan went through regime change, the chaos that followed, and the repression which is going on unabated. This is why elections cannot be held in Pakistan. For if they are held Imran Khan, the man most likely to sweep to power, promises to hold the elite to account and divest them of their protective shield of guaranteed immunities.
In order for this not to happen it was the consensus among our thieving elite that Nawaz Sharif, the head bandit of Pakistan, be restored to power.
But under the law this could not happen because he was not just a convict on the run, he also had all his legal remedies exhausted whereby he could be given a clean chit to run in a thoroughly rigged election and win. So, the law had to be amended, enough for a legal window for him to be opened so that he could be whitewashed and made kosher for the projected election. The specific window that needed to be opened for him was that he not only be given the right to appeal his conviction in the Supreme Court, but that this provision be given effect retrospectively so that he could make use of it.
But for this a constitutional amendment was needed. The highly corrupt government of PDM monkeys did not have the numbers in parliament to get the required constitutional amendment through. And so, they tried to sneak in the Supreme Court Practice and Procedure Act. The “great white hope” was that with the assistance of Qazi Faiz Isa and his band of happy Justices, this Act of Parliament passed by a simple majority, will be able to override the Constitution.
So, when Qazi Faiz Isa became Chief Justice and made the hearing of this case his first order of business, it was of great interest to me to see which way he leaned. This would be a good indicator of where he stood and what his legal legacy promised to be, because this would have a great bearing on the fortunes of a torn and belittled Pakistan.
Because of his rulings in the Hudaibya case, I was most interested in his conduct of this case. I wanted to definitively make up my mind if, as it was rumoured, he was a Judge sworn to uphold the interests of the Sharif family.
As the proceedings of this case went apace and the rights and powers of the parliament were frequently referred to, the question of the record of the proceedings of parliament which eventuated in the Act, which was being adjudicated upon, came up more than once. This record, had it been examined in Court, would have shown that only a handful of parliamentarians on steroids had passed a spate of Bills rendering them into Acts, bending rules of procedure or by-passing them altogether. Because this would have laid bare the spirit and motivation which drove this legislation, I would have thought that Qazi Sahib would have been most interested in examining this record. He could have got this record and subjected it to scrutiny. But the fact that he seemed clearly to shrink from doing so was enough for me to see through him. And if there was some opacity left about him, the Judgment itself cleared that up.
In short, the Qazi and his faction plus another two judges ruled that Acts of parliament could overrule provisions of the Constitution. The Justices who differed were Ijaz ul Ahsan, Shahid Waheed, Mazahir Naqvi, Ayesha Malik, and Munib Akhtar.
But the issue of the right to appeal, and of this right taking effect retrospectively, which was the entire purpose of this Act so that it could open a back door to Nawaz Sharif’s fourth term as Prime Minister, was defeated. And sadly, Qazi Sahib was again found to be on the wrong side of this vote. He voted quite blatantly for Nawaz Sharif. If he wants honour to be associated with his legacy, he will have to strive mightily to recover what he lost in his first week of jousting. And the other six Justices who voted with him will remain under merciless scrutiny for the rest of their tenures to determine if they were standing for or against the spirit of justice. Plainly their exertions were a shameless attempt to restore Nawaz Sharif to power. And thank God for Justice Yahya Afridi swinging the balance in favour of a suffering state and restoring my faith in pedigree. Anyone who had the privilege of knowing his father, the late Mr Omar Afridi, would have been truly heartbroken, had he voted the other way. Perhaps it is too early to say, but it seems that hopes that our judiciary will bring an end to our present nightmare might not be entirely misplaced.