Pakistan Muslim League (Nawaz), a political party that has ruled the country off and on in the past three decades, has released an audio-video montage claiming that the National Accountability Bureau (NAB) judge, who convicted and sentenced former Prime Minister Nawaz Sharif for owning unexplained properties in London, delivered his decision under coercion.

The video shows the NAB judge sitting in his own living room, sharing soft drinks, chatting with a well-known and criminally convicted political worker of the Nawaz political party. In the audio, recorded separately from the video, the judge points out the defects in his own judgment and shares the points that Sharif can argue in the appeal still pending before the Islamabad High Court.

As a response to the audio-video, the Nab judge released a memo to the public, denying that he convicted Sharif under pressure, calling the audio-video a distortion, but admitting close acquaintance with the Nawaz political worker appearing in the video. To make matters even more scandalous, the judge claims that the Nawaz representatives attempted to influence him with money and threats during the trial, but he remained loyal to evidence and law.

The government spokesperson asserts that the audio-video is fake and has been concocted to malign this judge and the NAB as an anti-corruption state institution. (Prime Minister Imran Khan, scheduled to meet President Trump in a few days, has vowed to go after “corrupt” political leaders and retrieve “stolen monies.”) The Press regulatory agency has prohibited the electronic media from re-playing the audio-video, even though the TV commentators and print media are gingerly permitted to discuss the scandal.

Last month, another scandalous video was aired on a pro-government TV station. The video secretly recorded a conversation between the NAB chairman, a retired judge of the Pakistan Supreme Court, and a woman, the wife of another convicted criminal. In the video, the NAB chairman expresses a sexual desire to meet the woman. According to the Nawaz political party, this embarrassing video was released to force the NAB chairman to resign so that the government may appoint a more reliable head of the bureau to prosecute politicians. The chairman has not resigned.

Since the promulgation of the 1973 Constitution, the independence of Pakistan judiciary has been the prime target of political and military forces. In the 1990s, the Nawaz government was caught calling a Lahore High Court Justice to demand punitive verdict against Benazir Bhutto. In 2007, General Pervez Musharraf summoned the Chief Justice of the Supreme Court, who was perceived to be anti-government, to demand his resignation as the Chief Justice – an episode I reported in JURIST.

In 2018, an Islamabad High Court Justice impugned the state intelligence agencies for disappeared persons. He stated that the phones of the judges are tapped, that their lives are unsafe, and that the military manipulates judges for obtaining favorable verdicts in the cases of missing persons. The Justice was fired for maligning the armed forces, conduct prohibited under the 1973 Constitution (article 19 limiting free speech to protect “the integrity, security, or defense of Pakistan).

Much like the U.S. courts, the Pakistan courts are drawn into resolving various institutional controversies. However, the “political question doctrine” does not exist in the Pakistan jurisprudence. Consequently, the Pakistan courts undertake to resolve all sorts of complicated and contentious political cases. The Supreme Court has written several controversial opinions legitimizing military coups, disqualifying elected prime ministers for being “dishonest,” and sometimes intervening in decisions that properly belong to other branches of the government.

Despite politicization, the Pakistan Supreme Court enjoys a broad-based reputation of judicial integrity. However, the lower courts do not. The administrative courts, such as the NAB courts, are particularly vulnerable to political pressure. In fact, the politicians smear the NAB as a tool of oppression that splits political parties, maligns elected officials, and concocts cases against anti-government elements. The media and the politicians accuse, though only in whispers, the military establishment for most political convictions.

Unfortunately, there is no easy solution for fixing the degradation of judicial ecology in Pakistan. A culture of military coups, election tampering, corruption, horse trading in the national and provincial legislatures, ethics-free politics, obsessive patriotism that treats critics as traitors, these and other factors vitiate the dynamics of justice. Under these social burdens, good faith judicial neutrality appears unavailable. Much like politicians, judges and generals are perceived to have been forced into partisanship.

The broader legal culture will take time to develop respect for viewpoint tolerance and judicial integrity at all levels. Meanwhile, the Pakistan Supreme Court could stringently enforce the judicial code of conduct for all judges, and not just for the judges of higher courts.

Article -II of the judicial code states:

A Judge should be God-fearing, law-abiding, abstemious, truthful of tongue, wise in opinion, cautious and forbearing, blameless, and untouched by greed. While dispensing justice, he should be strong without being rough, polite without being weak, awe inspires in his warnings and faithful to his word, always preserving calmness, balance and complete detachment, for the formation of correct conclusions in all matters coming before him.

This rule, under the current epidemic of scandals, carries good instructions for all judges, including the NAB judges. The word “abstemious” is a bit enigmatic, as its conventional meaning warns against excessive alcohol use, something strictly prohibited under the laws. Yet the word abstemious discourages judges from indulging in immoderate activities.

The rule of “detachment” demands that the judges avoid contacts with partisan political groups and individuals. There is no excuse for the judges at any level of judicial hierarchy to nurture close associations with individuals convicted of crimes or their spouses.

If there is any silver lining to the current judicial scandals, it is that, in addition to being “God-fearing,” as the code requires, the judges will also fear cell cameras and other secret recording devices that the people may use to document judicial misconduct.

L. Ali Khan is an emeritus professor of law at the Washburn University School of Law in Topeka, Kansas. He has written numerous scholarly articles and commentaries on the Pakistan jurisprudence. In addition, he has regularly contributed to JURIST since 2008.

Suggested citation: L. Ali Khan, Scandals target the Pakistan Judiciary, JURIST – Academic Commentary, July 11, 2019, https://www.jurist.org/commentary/L-Ali-Khan-Pakistan-Judiciary-scandals/

This article was prepared for publication by Tim Zubizarreta, a JURIST Staff Editor. Please direct any questions or comments to him at commentary@jurist.org