February Issue 2019

Justice (R) Mian Saqib Nisar on a visit to Ziauddin Hospital.

January 2018 marked the end of the tenure of Saqib Nisar as chief justice of Pakistan (CJP). Like his predecessor, Justice Iftikhar Chaudhry, Justice (R) Nisar will be remembered for his judicial activism and for taking up suo motu notice in matters of public interest – often picking up issues highlighted by the mainstream media. 

Supreme Court registries in the provinces remained active during Justice (R) Nisar’s tenure, but the Lahore and Karachi registries became a priority due to various issues highlighted in the media. In June 2018, the chief justice constituted six benches to hear cases at the Islamabad, Lahore and Karachi registries and opted to join the bench hearings in Karachi. At the time, his comments on cases like the Bahria Town land scam, enforced disappearances, recovery of amenity plots, encroachments and water theft, made headlines. 

The court attempted to fill in an observed vacuum in governance. For instance, while hearing a suo motu case regarding excessive fees charged by private medical and dental colleges, Justice (R) Nisar said, “The court had to take suo motu notice when the government and its relevant departments failed to deliver.” In a similar vein, he defended his visits to assess the operations of public hospitals, on the grounds that citizens’ fundamental right to basic health facilities needed to be upheld.

The media spotlight also turned on his visit to the Ziauddin Hospital room where ex-minister Sharjeel Memon was ‘recuperating.’ Bottles of alcohol were allegedly recovered from the premises and Memon was sent back to jail. Nisar also visited the prison cell where murder convict Shahrukh Jatoi was accorded VIP facilities, and sent him back to the death cell. 

His suo motu notices in the Naqeebullah extra-judicial murder case, the murder of a minor girl at the hands of the police, and in regards to the death of two brothers from food-poisoning at a Zamzama restaurant, led to investigations and subsequent action. 

The Supreme Court first took suo moto notice of the deteriorating law-and-order situation in Karachi, in August 2011. Iftikhar Chaudhry was chief justice at the time. The detailed verdict of the court in the case included statements, arguments and narratives of legal experts, human rights workers, officials of law enforcement agencies, and representatives of political parties. The court added its own observations on turf wars between the parties engaged in ethnic politics, and the subsequent violence instigated by militant wings of these parties, along with activities of sectarian groups and criminal gangs. It noted how violence was linked to the politics of land acquisition, the misuse of political power and influence and strong-arm tactics. There were organised networks of extortion run by elements linked to political parties, later joined by sectarian groups and exacerbated by the criminal gangs of Lyari and local networks of terrorist outfits.

The verdict took notice of China-cutting, or carving out lands for residential plots from parks and playgrounds in formal settlements. In later years, the Supreme Court monitored the implementation of its 2011 verdict and demanded action. The court’s observations and subsequent coverage in the media opened up a debate over the nature of illegal trade and violence in Karachi, providing the Nawaz Sharif-led government with a pretext to initiate action in September 2013. 

The violence in Karachi wound down in later years, as the disruptive acts of political parties were curtailed and terrorist networks dismantled, but the fissures created by the tussles have yet to be overcome. 

The chief justice on a visit to Shahrukh Jatoi’s prison cell.

The bids for land acquisition by different players deprived thousands of their homes. Forced evictions at the hands of builders and developers and the arrival of a player like the Bahria Town Foundation, kept the sword hovering over the heads of katchi abadi dwellers. Attempts by civic rights activists to support them were sabotaged when Orangi Pilot Project (OPP) director, Perween Rahman, was brutally murdered for her tireless efforts in mapping hundreds of villages in Gadap Town and Malir, to secure ownership rights for their inhabitants.

The police subsequently shot dead an unknown militant, Qari Bilal, claiming he was the murderer. The case was closed, but an appeal from Perween Rahman’s family and friends, joined by thousands through a signature campaign, led to a hearing by the Supreme Court of Pakistan. The investigation was opened and inconsistencies exposed in the police account. Subsequently, the culprits who pulled the trigger were arrested, but the case is ongoing, as the real culprits, who wanted to halt the village-mapping drive, are yet to be traced.

The court has been hearing cases of enforced disappearances over the last couple of years. In June 2018, it formed a two-member commission to look into these cases and trace the whereabouts of the disappeared. It was observed that concerned institutions do not follow the court’s directives. Families of the disappeared persons lodged a protest outside the Karachi registry, last year. The chief justice met them, but remarked that he was sure the agencies were not behind the abductions. The bereaved families insisted that it was, in any case, the responsibility of the concerned agencies to let them know the fate of their loved ones. 

Another prominent case was the petition of senior lawyer, Shahab Usto, in the Supreme Court, regarding the water and sewerage crisis in the entire province of Sindh. Court hearings of the case exposed the poor state of provision of basic amenities in the province and the failure of the PPP-led Sindh government in addressing them, despite several consecutive terms in office.

It shed light on the performance of institutions like the Sindh Building Control Authority (SBCA), the Karachi Water and Sewerage Board (KWSB), the Northern Sindh Urban Services Corporation (NSUSC), the Sindh Solid Waste Management Board (SSWMB), the KMC, the KDA, the Malir Development Authority (MDA) and other departments dealing with public amenities. 

In a bid to keep an eye on the performance of these institutions, the Supreme Court formed a Water Commission headed by Justice (R) Amir Hani Muslim and a committee to check the progress of the anti-encroachment drive, headed by Justice Gulzar Ahmed.

Court directives in administrative affairs have drawn a mixed response. In 2011, directives by the Supreme Court in Karachi barring allocation of lands were  applied to the Land Utilisation Department, which hindered its allotment of lands to investors for wind energy projects. A request by the concerned department to  the court to allow the allotment took almost a year to process. It resulted in some investors backtracking from the projects and increased the costs. 

Similarly, the ongoing anti-encroachment drive and the manner in which it has been executed by the KMC and KDA has stirred controversy. It is criticised by experts in urban planning, who have termed it ill-conceived and cruel. The anti-encroachment drive has led to the demolition of KMC-owned markets that were regulated by its estate department, with owners paying rent through the pre-colonial pagdi system. The sword of eviction continues to hover over people’s heads in the city.

The Supreme Court took up the issue of air pollution and issued directives regarding handling, dumping and transporting coal in the open, at different locations in the city – a practice that was affecting residential settlements nearby.

Residents of these localities and environmental experts expressed concern over dumping of coal near the coast and its effects on Shireen Jinnah Colony, and the railway line at Wazir Mansion, near Machar Colony. In January 2018, the court started hearing a petition filed by Veno Advani, who cited a World Bank report about air pollution in the cities damaging public health and quality of life, besides contributing to environmental degradation.

In June 2018, the court directed the concerned authorities to ensure that coal was stored safely in warehouses in Karachi. 

Dealing with water and sewerage issues, the Water Commission banned the construction of high-rise buildings in Karachi, owing to the stress caused to an already-overloaded portable water supply and sewerage system. The move was opposed by builders and buyers, who complained of heavy losses incurred due to delays in the completion of projects. The ban was recently lifted.

In the same case, Supreme Court directives against filling water from hydrants and the imposition of a ban on the distribution of water through water tankers, created a severe crisis in the city. Access to piped water remained a distant dream for most people, while tanker operators increased their rates twofold, as their access to water was restricted and they had to pay heavy bribes to carry on with their business. Such issues need to be addressed through long-term plans and not short-term measures, which merely add to the woes of city dwellers.

The Good, the Bad and the Shades of Grey

Chief Justice (R) Saqib Nisar leaves behind a conflicted legacy.

The departure of Saqib Nisar as CJP has given rise to a debate on his career as a judge, his term as CJP and the image he earned through his personal interest in issues of public interest endlessly highlighted by the media. 

Legal analysts and political commentators hold assorted opinions on Justice (R) Nisar’s legacy, and it remains to be seen if his fellow judges, who are still on the bench, will follow the example he set by continuing with his initiatives and the missions he had embarked upon, such as that of creating water reservoirs, and the collection of funds for these through crowd-sourcing, donation drives, imposing fines, and granting adjournments in exchange for donations to the Dam Fund. 

Despite all his efforts, however, and although keen on continuing with the dam funding, the federal government was not pleased that Nisar was heading the drive. Members of the government had, in fact, remarked on several occasions that it was not his job. Then, to the great displeasure of the ex-CJ, the government changed the scheduled date for Mohmand Dam’s ground-breaking ceremony. Initially slated to be held on January 2, 2019, the ceremony, which was to be attended by Prime Minister Imran Khan, Chief of Army Staff (COAS) Qamar Javed Bajwa, and Nisar himself, among others, was deferred till January 13 and later postponed for an indefinite period. Justice (R) Nisar was angry that the government had not asked him if he would be available or not on the new date, which was finalised based on the Prime Minister’s schedule. 

On the last day of Justice (R) Nisar’s tenure, while delivering a farewell speech to the departing CJP, his successor, Chief Justice Asif Saeed Khosa, distanced himself from his predecessor’s stated mission to build the dams and rid Pakistan of the foreign debt it had incurred. He said that he would instead, in his term of office, be building a dam against frivolous cases and petitions, against fake witnesses, and would rid the country of thousands of pending cases. 

Justice (R) Nisar also faced criticism for the fact that his varied interests made him stray beyond the courtroom, when thousands of cases were pending for years. His critics claimed that the former CJP took up suo moto cases enthusiastically because they received greater publicity, since most of them were filed in response to media reports, TV shows, news articles, or opinion columns.

Beyond the court rulings and the statements he made during the hearing of different cases, Nisar also invited criticism for remarks made at public events. In August 2017, while speaking at an event in Quetta commemorating the first anniversary of the attack on lawyers, his remarks regarding Hindus were deemed an insult to the community. Talking about the Independence struggle, and holding the two-nation theory as a basis for Partition, Justice (R) Nisar stated, “There were two nations, Muslims and the others – I don’t even want to take the name.”

On another occasion, at the 3rd Provincial Judicial Conference 2018, held in Karachi, he used a quote attributed to Winston Churchill, comparing a good speech to a woman’s skirt, “it should not be too long so that one loses interest, and neither too short that it doesn’t cover the subject.” The remarks were held as sexist and roundly condemned by the Women Lawyers’ Association.

In one of his speeches, while describing the role of chief justice, he borrowed the character of Baba Rehmata, a village elder, from the stories of Ashfaque Ahmed, the Urdu playwright, and said that as an elder it was his duty to mediate and solve the issues faced by the people. Baba Rehmata soon became a frequently used term by his detractors on social media.  

On October 10, 2018, a reference was filed by members of the Women’s Action Forum (WAF) and other pro-democracy citizens against the chief justice, before the Supreme Judicial Council (SJC) at the Supreme Court in Islamabad. The petition was signed by 98 people who had levelled charges of misconduct and judicial overreach againt him. They asked that their complaint be placed before the learned Senior Puisne Judge, Justice Asif Saeed Khosa. Under the law, the SJC can direct an inquiry into complaints mentioned in a reference and find even a chief justice guilty of misconduct. The petition was not, however, taken up for hearing by the SJC.

In the last three months of his term in office, Nisar took a controversial step that was unpopular among religious groups, but was appreciated by human rights workers and minorities: he issued a verdict in the Asia Bibi blasphemy case. The three-member bench headed by him overturned the death sentence for blasphemy in the long-delayed case, and cleared the Christian mother of the charges levelled against her. This was, arguably, one case that Justice (R) Nisar and the entire judiciary have every right to own and feel proud of. At the same time, however, it also highlighted the need for reform in the judicial structure. Justice Asif Saeed Khosa, the current Chief Justice, had, in his note in the Asia Bibi verdict, shed light on the glaring flaws in the manner in which the case was dealt with in the lower courts. 

This, one hopes, will be one of the legacies left by Justice (R) Saqib Nisar, and also that of the incumbent CJP, Asif Saeed Khosa.