It is said that the law is written on the sleeves of the judges, but what if the judges go sleeveless to show their muscles? These days in Pakistan if you are an “alleged contemner” in a case of contempt of court then your abduction a day before your court appearance could also be an “alleged abduction”.
On the morning of July 21, I dropped my wife off at the government school where she teaches and sat in my car in front of its walls sending messages on my mobile phone. Suddenly, a pick-up truck fitted with police lights stopped nearby along with some civilian cars, and around 10 men – some in uniform and some in civilian clothes – jumped out and headed towards me.
They pulled me out of my car. I demanded to know why I was being detained and what warrants they had for it, but in response, I got a few punches and a strike with a rifle butt on my head. I was then shoved into one of the cars, handcuffed and blindfolded.
After being physically and mentally tortured and threatened for nine hours at an unknown location, I was dumped by the side of a deserted road. It was quite clear to me that my kidnapping was directly linked to the contempt of court case for which I was due to appear in court the following day.
On July 10, I had tweeted about a Supreme Court ruling, which allowed a judicial probe into a reputable judge, Qazi Faez Isa to proceed. The year before the judge had deprecated the military’s indulgence in political affairs in a ruling regarding the dispersal of the Faizabad sit-in in which the army had participated. According to the ruling, the military and the Inter-Services Intelligence (ISI) jave gone beyond their constitutional mandate in their actions.
Some, including myself, saw the judicial probe against Justice Isa as a move by the traditionally powerful military establishment to pressure the government into removing an upright judge who is destined to become the country’s chief justice in 2023.
Due to my tweet defending Isa and criticising his colleagues in somewhat harsh language, I was slapped with a contempt of court notice. On July 16, the Islamabad High Court dismissed the court petition against me but strangely, just a few hours earlier, the Supreme Court using its suo moto prerogative – which gives it the power to initiate a case on its own – started a separate contempt case against me on the same charges. It scheduled the first hearing in which I had to appear on July 22.
That day, I went to court, despite still being shaken by the events of the day before. In the courtroom, the judges inquired about the kidnapping and ordered the police chief to submit a report. This was heartening to me, but as the chief justice started dictating the order, a fellow judge suggested that the incident be described as “an alleged abduction”. My polite protest that such wording would prejudice the report did not help.
The police report about my “alleged abduction” was issued two weeks later.
Interestingly, while using the words of the judge the police officials in the same report claimed that various departments did not cooperate with the police in securing the necessary evidence to proceed further with an investigation into the abduction. No conclusion was reached in the report, despite the availability of security camera footage of my abduction in front of the school, widely circulated on social and mainstream media.
The judge putting under question whether my abduction actually happened illustrates a dangerous judicial trend in Pakistan of justices making remarks that go beyond the facts and scope of hearings in individual cases. Ironically such remarks often come after the Supreme Court evokes its suo moto powers under the human rights jurisdiction, which is supposed to be used to hold institutions accountable when they fail to uphold human rights. Instead of protecting or enforcing these rights, however, judges end up curbing them.
Politicians and legal experts have been criticising the manner in which this extraordinary judicial power has been exercised. For some, the judges’ remarks have been a decisive factor in the country’s political power play between the establishment and civilian forces over the last decade. For some, these seemingly innocent and pro-humanity constitutional powers have been weaponised by the judiciary way beyond the intent of the constitution.
The manner in which such powers have long been exercised has seriously jeopardised the right to a fair trial and free speech in Pakistan.
In a recent case, honourable judges of the Supreme Court of Pakistan made some sweeping remarks (non-binding verbal observations during the hearing of a case) against the role of social media in Pakistan. Another honourable judge on the same case said that “many countries” control social media through laws. These chilling remarks are likely to facilitate the draconian manner in which the country’s controversial cybercrime laws are being abused to muzzle free speech.
This is a horrible scenario for the citizens of a country like Pakistan which is currently reeling under the legacy of long military dictatorships and an unprecedented persecution of journalists, media organisations and their owners.
The superior courts are increasingly and rigidly enforcing contempt of court laws on media and common citizens in Pakistan. At the same time, they are refraining from taking notice of growing incidents of citizens being kidnapped and kept in illegal detention and also the media being intimidated, heavily censored and persecuted.
The situation is so bad that indignation was expressed even by a chief justice in September 2019. During a ceremony held to mark the new judicial year then Justice Asif Saeed Khosa openly admitted that there was a growing perception of reduced political space and a “lop-sided process of accountability”.
In a recent ruling on the conduct of the National Accountability Bureau, Justice Maqbool Baqar pointed fingers towards the powerful establishment, saying that allegations of the accountability process being abused for political engineering should be given proper attention.
The abuse of the judiciary serves different purposes. In my case, by defending Judge Isa, I inadvertently interfered with the “grand plan” of the powerful establishment which is scrambling to neutralise all the political, judicial and journalistic obstacles in their pursuit of reshaping the upper echelons of power. Like in all other departments, they aim to get rid of the “non-conformist” elements in the judiciary. Concerns over Justice Isa, who is constitutionally due to become the chief justice in 2023, are linked to succession in the army’s top.
The army chief General Qamar Javed Bajwa is expected to retire in 2022 and waiting in the wings to take over is the current ISI chief Lieutenant General Faiz Hameed, who owing to his projected seniority position at that time will be the most likely candidate to succeed him. If Imran Khan continues as prime minister by the time the extended tenure of the incumbent army chief ends in 2022, Lt-Gen Hameed is most likely to be his only choice. The grand planners of the establishment plan a lot but then, as they say “man proposes and God disposes”, that is, one should always expect the unexpected.
But if Judge Isa takes over as chief justice the following year, he would be particularly incompatible with Lt-Gen Hameed as head of the army. That is because in his 2019 ruling on the Faizabad sit-in, Judge Isa had taken an issue with the political role the ISI had played, along with other military institutions, and advised that they should not exceed its mandate. Hameed had brokered and signed an agreement between the government and the Faizabad protesters as a “guarantor”, in his then role as a Major-General in the ISI.
The iron fist of the military seems to be wearing the velvet glove of the law. The use of the judiciary to prosecute people who are inconvenient for the establishment has basically shaped a new reality in Pakistan – one of an undeclared martial law.
In the past, four martial laws were proclaimed in the country, typically with televised addresses by military rulers beginning with the words “my dear countrymen”. But this seems to be an era of the unproclaimed martial law with no pretence of even the infamous Provisional Constitutional Orders (PCOs) which suspended the constitution and which senior justices had to swear an oath under.
Today, no such oath is required. Our judiciary, along with the government, the parliament, and the media are strictly following orders and embracing the policy of “don’t ask, don’t tell” about who rules Pakistan.