Justice Asif Saeed Khosa: Judging politics and dispensing morality

“[W]e congratulate Mian Nawaz Sharif on being awarded the title of Godfather by the Supreme Court,” read a poster by the youth wing of the Pakistan Muslim League-Nawaz (PMLN) in Gujranwala in April 2017. The felicitations were based on Justice Asif Saeed Khosa’s remarks in his Panama Papers judgment after the first round of hearings at the Supreme Court.

Justice Khosa can take credit for introducing people to Italian-American writer Mario Puzo’s masterpiece of the same title (although the majority of us would have only watched the cinematic trilogy based on the novel). Some more daring opinion makers also looked up Honoré de Balzac – one of France’s most prolific writers – as the judgment mentioned him too.

This was not the first time that Justice Khosa brought literary classics into public conversation. In 2012, everyone and their uncle became Kahlil Gibran scholars after he quoted the Lebanese poet in his verdict against Yousaf Raza Gilani, prime minister at the time. And this highlights the other important feature of his judicial career: he has sent two prime ministers home in just about five years.

This partially explains why Justice Khosa has become the most loved, or most despised, judge of the Supreme Court in recent times — something he has in common with former chief justice of Pakistan Iftikhar Chaudhry. But this is also where the similarities between the two end. Justice Khosa is sober in temperament, unparalleled in his command of the law, unimpeachable in personal integrity and skilled in writing. Justice Chaudhry was none of these. Their contrasting approaches came into sharp relief recently when Justice Khosa recused himself from hearing the case for reopening the Hudaibiya Paper Mills reference against the Sharif family. He said he had mentioned the case in his Panama Papers judgment and, therefore, could be deemed biased. Justice Chaudhry, on the other hand, wanted to hear his own son’s case, citing a hopelessly inexact parallel from Islamic history.

Justice Khosa is a rare product of meritocracy in Pakistan. He was awarded a national scholarship for excelling at his matriculation exam by the Multan board. He then topped his intermediate exam too. He did his Bachelor of Arts from Government College, Lahore, studied law at Cambridge University and was called to the bar at Lincoln’s Inn. He comes from a family of high achievers. His brother Tariq Khosa is one of the most respected police officers Pakistan has had — a rare intellectual and a gentleman among law enforcers.

Justice Khosa’s rise to excellence and power is an un-Pakistani tale; it did not result from a conspiracy or accrue as a reward for loyalty or partisanship. His elevation to the Lahore High Court in 1998 was rather eventless. A top lawyer was offered an appointment and he accepted it. Once on the high court bench, he became one of its most prolific judges, articulate but opinionated. These qualities have earned him many accolades as well as some flak (for example, in a 2004 judgment he struck down the Juvenile Justice System Ordinance, a law designed to provide additional protection to criminals under the age of 18).

“…the electorate in our country have also repeatedly demonstrated their preference for practical wisdom and utility over religious puritanism. Thus the inclusion of unrealistic and ill-defined requirements in the Basic Law of the Land renders the same impracticable and detracts from the sanctity which the Constitution otherwise deserves,” Justice Khosa wrote as a lawyer in a 1988 essay on the now (in)famous Article 62 and Article 63 of the Constitution. His essay offers a direct, vigorous and clear view on the controversial requirements of 'truthfulness' and 'honesty' for parliamentarians. It has the same moral texture as that of Elizabeth I’s dictum: “I will not open windows into men’s souls.”

In 2015, Khosa was grappling with the same question again, now as a judge, in the Ishaq Khakwani case. He reiterated his long-held view by terming Article 62 and Article 63 “impractical”, citing the “nightmares of interpretation and application that they involved”.

But something changed between then and March 2017. Justice Khosa wrote his 192-page dissenting judgment in the Panama Papers case, disqualifying Nawaz Sharif from holding public office by declaring that he was no longer 'sadiq' and 'amin' as mandated by Article 62 and Article 63. “If honesty in holders of public offices is a moral issue then one need not be apologetic about enforcing such a constitutional obligation and if the people at large start ignoring the moral prerequisites in public life then there would be no better forum than the courts … to insist upon the values and ethos of the Constitution,” the Justice wrote.

The difference between his latest views and the ones he held in 1988 is stark. The two display fundamentally different conceptions of morality, eligibility for office and even the nature of democracy.

From the outset, Justice Khosa stood out from the rest of the bench in the Panama Papers hearings. He was never unsure. He did not hedge his arguments. He did not look for technicalities. The criticism of the final judgment in the case is based on the narrow definition of an “asset”. To some, the inclusion of the impugned asset seems to be an afterthought. Justice Khosa has exempted himself from this objection. He disqualified Nawaz Sharif without the help of a Joint Investigation Team (JIT) — and thereby did not need to mention any assets. He declared the former prime minister untruthful and asserted that his opinion was widely shared. “A pedestrian in Pakistan Chowk, Dera Ghazi Khan (a counterpart of Lord Denning’s man on the Clapham omnibus) may not have any difficulty in reaching that conclusion,” he wrote.

This quote, referring to Justice Khosa’s hometown of Dera Ghazi Khan, is also a homage to Alfred Thompson Denning, a British jurist considered by many to be the greatest ‘lawmaking’ judge of the 20th century. Denning defined his concept of justice as “the solution that the majority of right-minded people would consider fair”. While completely sound in intent, the concept is complicated in practice. How does an unelected institution – such as a court – divine the opinion of the majority of right-minded people? Even more fundamentally, how will right-minded people be defined and found?

Nawaz Sharif’s Panama story was flimsy and often descended into toe-curling embarrassment with Calibri fonts and Qatari letters. The question, however, was who should make the decision (and enforce punishment)? With political parties having become either family heirlooms or personality cults, parliament's reduction to little more than a debating club and institutions of accountability in dire need of reform and self-accountability, the choice is between the electorate and the court.

What prompted the evolution in Justice Khosa’s views on the 'sadiq' and 'amin' requirements and the role of the judiciary in a constitutional democracy? The tempting answer is that one’s view of power varies radically depending on whether one has it or not. This, however, would be a simplistic answer and his Panama Papers judgment pre-empts it. He argued that successive democratic governments have failed to repeal the offending articles and as a judge he is bound to apply the law. Whether he personally likes the law or not is an entirely different matter.

A related reason could be his desire to be popular, or even populist. This is perhaps closer to the mark, though Justice Khosa’s brand of populism is dissimilar to Justice Chaudhry’s unhinged, Machiavellian antics that dominate television news tickers.

His decision in the Panama Papers case, however, does something more than just pander to the popular. It brings the paradox of being pro-democracy in Pakistan to light. He gave a systematic, clinical description of how every institution responsible for accountability – from the Securities and Exchange Commission of Pakistan to the Federal Board of Revenue and from the National Accountability Bureau to the Federal Investigation Agency – was hopelessly, horrifyingly compromised and inefficient. Those who argue for no judicial intervention in political matters, and who are not thrilled at having a monitoring judge in the Panama Papers trial, claim to be arguing for a fair trial since neither the judiciary nor the military is authorised to conduct criminal investigations and prosecutions. But anyone with even the most basic understanding of Pakistan’s justice system will know that an investigation against a powerful individual (all other things being equal — that is, no interference from the army or the judiciary) is never fair. The Sharif family’s investigation by any of the government agencies would never be fair. It would be unfair in a different way from an investigation and trial manipulated by the military establishment, but it would be unfair nevertheless. There would be no suspense regarding the outcome. A billionaire dynasty that has been ruling over the largest province of the country – and quite often the entire country – for most of the last four decades is perhaps the second most powerful entity in the country. That is saying something.

This argument can be expanded both ways and forever. Yet the paradox highlights that all answers are wrong when it comes to the tough question of accountability. Some are just more wrong than others.

There is also another Justice Khosa — the one who wrote the judgment in the Mumtaz Qadri case in 2015. He began the judgment, “…with respect and without prejudice to the strong religious and philosophical views expressed before us we must state at the outset that we, in terms of our calling and vocation and in accord with the oath of our office, are obligated to decide this case in accordance with the law of the land as it exists and not in accordance with what the law should be.”

This view is consistent with his opinion in 1988 that laws should be clear and interpreted without recourse to contentious religious and moral principles. It is also consistent with his 2017 position that a law should be applied as it exists. Though much of this might seem intuitive, it is not so in Pakistan. Here, judges of the high court weep profusely on hearing matters of blasphemy and retired chief justices represent self-confessed killers in the name of faith. Somebody only in the legal profession for cheap popularity would have stayed away from such contentious issues, focusing instead on the low hanging fruit of holding politicians accountable (something that was turned into an art form by Justice Chaudhry). But Justice Khosa discussed the blasphemy law as candidly as anyone has ever done in Pakistan and had this to say: “... in a democratic society citizens have a right to contend, debate or maintain that a law has not been correctly framed by the State in terms of the mischief sought to be suppressed or that the law promulgated by the State ought to contain adequate safeguards against its misapplication or misuse by motivated persons.”

The judgment is not ideal (maybe no judgment is) but it is courageous and clear on an issue that brings no popularity brownie points — rather it gets people killed. The caution exercised, and the tension being negotiated while maintaining the integrity of the judgment, is given away by how the accused is referred to as “Malik Mumtaz Qadri” as opposed to “constable Qadri” or simply by his last name as is usual judicial practice.

Justice Khosa seems an unlikely candidate for praise by those television talk show hosts who lean towards the right and often peddle in conspiracy theories. His life and career have everything they despise — intellectual acumen and articulation et al. Those on the other side are also in a bit of a fix. For instance, the star cast of Pakistan’s biggest television channel swooned over his poetic note in the judgment that disqualified Yousaf Raza Gilani. Now the same star cast is unhappy over the harm his judgment against Nawaz Sharif is causing to both democracy and the rule of law. Their newly found ideological conviction is almost in tandem with French philosopher Régis Debray’s dictum that “the revolution revolutionises the counter-revolution” — with the minor correction that no revolutions are involved in this instance, just a series of counter-revolutions. Most of those arguing for consistency in Justice Khosa’s opinions have displayed none of it in their own.

Some of these opinions on both sides can be traced back to the lawyers’ movement. The superior judiciary could have either gone home following an illegal order by a dictator or they could have fought back with the help of their supporters. The judges chose the latter and in doing so, they become political. But even with the benefit of hindsight, does anyone wish for a pre-2007 judiciary — the one that surrendered at the first sign of a challenge from anyone powerful (mostly the army, sometimes Nawaz Sharif)?

A similar paradox exists at the bottom of the argument that a Supreme Court that has disqualified Nawaz Sharif must also do the same to Imran Khan. After all, offshore companies are involved in both cases. Implicit is the contention that now that the court has made a terrible mistake, it should balance it with another. But with Imran Khan having been absolved, the judges are being seen as anything but impartial and fair. There seems to be no correct path the judiciary can take here.

The real reason for this stalemate is that the political leadership has preferred judicialisation of politics over its own democratisation. “There is hardly a political question in the United States which does not sooner or later turn into a judicial one,” the great French philosopher Alexis de Tocqueville wrote while visiting the United States. This has been true for Pakistan in 2017 and will remain truer still in 2018. The judiciary did not volunteer for this role but it is also not complaining. Who would complain if they got an opportunity to exercise power?

This new judiciary is led by Justice Khosa. Though he is not the chief justice, he provides intellectual and moral leadership to the court. With all its moles and warts as well as its accolades, the Panama episode belongs to him. His initial note of dissent set the tone for the final decision and eroded any moral or legal weight behind Nawaz Sharif’s case. “Justice Khosa’s brilliant, devastating critique of the explanations of the Sharif family and his creative development of the standards of proof required in such cases provides the evidential and legal basis of the JIT report. Although not quoted by the JIT, Justice Khosa’s imprint is all over [its] report,” is how lawyer and constitutional expert Faisal Siddiqi described it in a newspaper column.

Is Justice Khosa’s brand of judicial activism, premised on clinical legal expertise, a reason for comfort or despair? The answer is straightforward: the accountability of corrupt and inefficient politicians is desireable, yet the unintended consequences of selective accountability can make politicians even more corrupt and inefficient.

Justice Khosa’s rational, rights-based jurisprudence in less glamorous, non-political cases makes him an ideal ally for democracy, but the tragedy is that Pakistani democracy disillusions the likes of him too much and too quickly. Or perhaps the likes of him are too impatient with the long-drawn processes of democratic accountability. Either way, he has decided to take on the elite capture of political power and the dynasty-driven dysfunction of democracy.

The fear is that the cure may not be better than the disease.

This was originally published in the Herald's January 2018 issue. To read more subscribe to the Herald in print.