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For the sake of democracy: Four major decisions of ex-Chief Justice Nasir ul Mulk

On Monday, ex- Chief Justice Nasir ul Mulk transferred his judicial robes to the new Chief Justice of Pakistan Jawad S. Khawaja after a thirteen month long stint as the Chief Justice of Pakistan. During his tenure as the Chief Justice he went on to rule on some of the most important cases in Pakistan’s history that strengthened the rule of law and democracy in Pakistan. Here are four of his most significant contributions towards strengthening ‘democratic rule’ in Pakistan.

1)      PM Disqualification case:

Nasir ul Mulk

Chief Justice Nasir ul Mulk headed the bench that rejected four petitions that sought Prime Minister Nawaz Sharif’s disqualification on the basis of lying on the floor of the National Assembly in relation to the role of ‘mediator and guarantor’ that the Nawaz Sharif led government had offered to the Chief of Army Staff in the face of the protest and sit-ins by PTI and PAT last year. They accepted the ruling of the Speaker of the National Assembly on the issue.  Ironically, Justice Nasir ul Malik was also the head of the bench that convicted the then Prime Minister Yousaf Raza Gillani of contempt of court after the Supreme Court had taken suo moto notice of the same, this same decision later became the basis for Yousaf Raza Gillani’s disqualification from the Prime Minister’s office and parliament and was adequately hinted in Justice Nasir’s judgment. The judges in this case had refused to accept the ruling of the Speaker of the National Assembly.

The main beneficiaries of this decision were democracy and Nawaz Sharif.

2) The Judicial Commission report:

Nasir ul Mulk

Chief Justice Nasir ul Mulk along with two other senior judges took it upon themselves to probe rigging allegations in the 2013 general elections, the allegations were primarily made by PTI but other parties agreed with them at least to a certain extent. While the commission found massive irregularities in how the elections were conducted, they nevertheless concluded that the public mandate was not stolen and ruled in favor of the continuity of democratic institutions.

The main beneficiaries of the verdict were democracy and Nawaz Sharif.

3) 21st Constitutional Amendment

Nasir ul Mulk

The Chief Justice bowed in front of the parliament and declared it to be omnipotent, consequently accepting the failure of the criminal justice system of the country by giving legitimacy to military courts. The same parliament that was given exclusive power to amend the constitution in any way it wished, was once forced to pass the 19th amendment when Iftikhar Muhammad Chaudhry was the Chief Justice, the only difference was that the former has a majority of PML-N lawmakers while the latter had a PPP majority. Justice Nasir was on the bench and voted in favor of directing parliament to pass the 19th amendment, he  did change his views on the parliament’s power in the meantime though and historically ruled in favor of democracy as the Chief Justice.

Much case law was overruled to give parliament such vast powers; once again the beneficiaries were democracy and the honorable Prime Minister.

4) Khawaja Asif case:

Nasir ul Mulk

As the name may suggest, the current defense minister, then a member of the opposition petitioned the Supreme Court to halt the appointment of heads of public authorities, he was successful. It was held that heads of statutory, autonomous and regulatory bodies were to be appointed through the formation of appointing commission. Chief Justice Nasir ul Mulk reversed this decision; the PML-N was in power and democracy had to be defended at all costs.

The beneficiary of this decision was once again the democratic government lead by Nawaz Sharif.

Ex- Chief Justice Nasir ul Mulk, in a full court reference  just prior to retiring, said that democracy was the quintessential requirement for ensuring the rule of law, where the weak and the indignant could raise voices to claim justice. He said that the apex court had enforced the will of the people, hoping that democracy would hold the centers of power and the powerful elite accountable through the force of democracy. I completely accede to the honorable judge’s view, it just may be a co-incidence that the landmark decisions of his stint as the Chief Justice aimed at protecting democracy gave undue leverage to Mr. Nawaz Sharif.

” It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”

Lord Chief Justice Hewart, R v Sussex Justices (ex p McCarthy)

 

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