Tag Archives: Supreme Court

A second coming

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President Zardari in a meeting with cabinet members

President Zardari in a meeting with cabinet members

In hindsight, it is clear as day, viginti/viginti.

Once the Pakistan Peoples Party (PPP) had won the most number of seats in the 2008 general election, Asif Ali Zardari was going to be the next president of Pakistan. In fact, after the assassination of Benazir Bhutto handed the reigns of the PPP to Zardari, the destiny of the man dubbed the ‘accidental president’ should have been clear.

But 54 months into a five-year term, it is easy to forget that in the summer of 2008, there was little clarity about Zardari’s personal political ambitions. Daily Dawn’s report on the then President Pervez Musharraf’s resignation on August 18, 2008 contained this telling line: “Coalition partners were left to consider who would be the next President, a position which most are in favour of curtailing and limiting.”

The Washington Post’s Islamabad correspondent also reflected on the uncertainty of the time, reporting on August 19, 2008: “Politicians began marathon meetings about possible replacements for Musharraf, with early reports suggesting a woman might be chosen.”
Within days, though, it became obvious that Zardari himself aspired to the highest office in the land, also its second-most powerful office at the time thanks to the powers Musharraf had arrogated to the presidency during his eight years of being in charge. (The most powerful office was, and remains, that of the chief of army staff.)

Sworn in on September 9, 2008, an alternately beaming and sombre Zardari made it clear – as though further clarity was needed on this point – that his would be a presidency hard to decipher or assess. “I accept the presidency of Pakistan in the name of Shaheed Benazir Bhutto. I accept this in her name and in the name of all the martyrs of democracy,” President Zardari said at a press conference immediately after his swearing-in ceremony, standing next to Afghan President Hamid Karzai, who he kept front and centre throughout the day’s proceedings.

Was Zardari sending some kind of a message by giving Karzai such prominence on his red-letter day? And if so, for whom was the message intended? To the Americans, that he intended to try and reset ties with Afghanistan, away from the army’s India-centric approach? Or to the army leadership, whose dislike and suspicion of Karzai at the time was well known, to send a signal that there was a new boss in town?
It never went explained — and crucially, there was no real follow-up to indicate what exactly President Zardari had in mind. And thus began a presidency that to this day remains largely inscrutable.

In heading off one crisis, Asif Ali Zardari’s chosen path has often, inadvertently perhaps though predictably, laid the grounds for the next crisis. To be sure, surviving five years in such a hostile environment is no small feat. But locked in a cause-and-effect cycle, the master tactician can also come across as a poor strategist.

Genius or survivor?
To his supporters, Zardari is the president who has steered the country through a perilous transition to democracy, taking Pakistan to the verge of an unprecedented civilian-led transition of power — or equally unprecedented back-to-back electoral victories. Along the way he has willingly ceded presidential powers, devolved power to the provinces, injected phenomenal amounts of national revenues into the provinces, attempted to bring tribal areas and Gilgit Baltistan into the national mainstream and presided over an economy that has eked out growth in a difficult international climate.

To his detractors, Zardari has presided over an epically corrupt and incompetent government that has recklessly endangered macroeconomic stability, allowed public sector enterprises to collapse under massive debt and mismanagement, failed to address perhaps the most severe bottleneck in the economy – a power sector in ruin – and done nothing to arrest the overall decline of the state and its ability to protect its population from an array of security threats.

So who is the real Zardari: The canny political operator who has helped strengthen the democratic order enough to at least ensure its continuity beyond his rule or a thoroughly compromised figure who epitomises an era of weak leadership amidst staggering challenges for state and society?

In truth, neither. Zardari has demonstrated no real vision to speak of, does not even appear to aspire to statesmanship, but he does have a finely-tuned instinct for survival. Because no one, perhaps not even Zardari, could have known just how suited he is for the politics of survival; the longevity of the government he has led by virtue of the fact that he is the boss of the PPP has given him an aura of success.

Thought to be destined for quick and ignominious failure when he took office, but then guiding himself and his government to survive six months, then a year, then two years, then three and four, and now nearly five full years, Zardari is latterly cast as a genius — of a gritty kind, just what the democratic project needed at this juncture, or of a scheming kind, who puts self-interest ahead of everything else.

But Zardari is neither a failure who got lucky or a genius who has been held back by circumstances. He is, simply, an arch survivor, and everything he has achieved or failed at is a by-product of that focus on survival — both the gains to democracy and the minuses in leadership, governance and statesmanship.

President Asif Ali Zardari with his main political rival, PMLN chief Nawaz Sharif, in 2008

President Asif Ali Zardari with his main political rival, PMLN chief Nawaz Sharif, in 2008

Injudicious calculations
As president, there are any number of relations with other institutions and individuals that can shed some light on Zardari’s approach towards power, both as a means and as an end: civil-military relations, dealing with fractious coalition partners, handling a powerful opposition led by Nawaz Sharif, addressing the demands of an international power that eased his party’s way back to power. But because it has been played out overwhelmingly in public, the relationship with the superior judiciary led by Chief Justice Iftikhar Muhammed Chaudhry is perhaps the easiest locale to identify the strengths and weaknesses of the Zardari era.

Tellingly, the original mistake – having to contend with a powerful Chief Justice Chaudhry at all – was a by-product of a failed political strategy elsewhere. A year after the general election of February 2008, Chief Justice Chaudhry’s crusade to get himself restored appeared to be going nowhere. Because of his forceful personality and the role he played in the downfall of Musharraf, the chief justice was still on the national radar, and a national star — but his route back to power appeared blocked. Chief Justice Abdul Hameed Dogar had steered the court out of the Musharraf emergency and the country had moved on, seemingly focused on making the transition to democracy work.

Crucially, Chief Justice Chaudhry had no real allies left in the political class. As WikiLeaks revealed, even Pakistan Muslim League–Nawaz (PMLN) was wary of the deposed chief justice and willing to cut a deal with Zardari. “Shahbaz [Sharif] stated that following the restoration, the PMLN was prepared to end the issue and remove Chaudhry once and for all. On the issue of former Chief Justice Iftikhar Chaudhry, Shahbaz claimed that the PMLN was open to negotiation, provided that Chaudhry was symbolically restored,” a US diplomatic cable from March 2009 revealed.

Zardari’s mistake? Trying to grab the Punjab government with the help of Pakistan Muslim League–Quaid-e-Azam (PMLQ) after imposing governor’s rule in the province. It was a classic case of overreach and homework not done: PMLQ had its feet in many camps, the army, the PMLN and the PPP. When the moment of truth arrived – would the bulk of PMLQ’s members in the Punjab Assembly fall in line behind the PPP to become coalition partners in the province? – the Zardari gamble failed. He had pushed the PMLN towards supporting the full restoration of Chief Justice Chaudhry.

Therein lies a fundamental contradiction: If Zardari has been successful in fending off the superior judiciary led by the Chief Justice since March 2009, that success has only been necessitated because of a monumental error at the outset — allowing Justice Chaudhry to return as a powerful figure, instead of trying to cut a deal with the PMLN while it was within the realm of possibility.

Sparring with the judiciary
When confronted by situation X, Zardari’s ability to survive a threatening environment and emerge with his personal position and his government largely intact has imbued him with the image of a master tactician. But look beyond the immediate and, while Zardari does make the most of circumstances, those adverse circumstances are often of his own creation, at least in part.

Prime Minister Raja Pervaiz Ashraf has survived a conviction for contempt of court in the National Reconciliation Ordinance (NRO) case, but at the root of the NRO fiasco was the government’s insistence to long treat the case in the Supreme Court as a political matter to be fought in the court of public opinion, instead of as a legal matter in which legal manoeuvring could buy time at a lower cost. Curiously, just when the government appeared set to reap political dividends from its strategy of politicising the Supreme Court’s dogged pursuit of President Zardari through the NRO and Swiss cases, Zardari pulled the plug on his own political strategy and ordered the letter to Switzerland be dispatched.

After the exposure of Arsalan Iftikhar’s corrupt dealings with a close Zardari ally, Malik Riaz, and the Supreme Court’s adamant pursuit of a second prime minister, the court was losing the public and political battle. Even the most ardent defenders of the court had begun to question whether the letter to Switzerland was worth the price if it meant deep political and institutional instability in the country.

And just when the court’s standing was at its lowest ebb since March 2009, Zardari did an about-face and handed the court a face-saving exit. Gone, in an instant, was the political advantage that for long, during the cringe-inducing period of Babar Awan as law minister, had never looked to materialise.

Prime Minister Ashraf survives — but even that success is laced with fresh uncertainty because of the court’s renewed interest in the rental power scam. Its latest intervention was predictable enough when Ashraf was nominated as prime minister, itself in circumstances where the preferred candidate, Makhdoom Shahabuddin, was ambushed by judicial intervention at the last minute.

So, in heading off one crisis, Zardari’s chosen path has often, inadvertently perhaps, though predictably, laid the ground for the next crisis. To be sure, surviving five years in such a hostile environment is no small feat. But locked in a cause-and-effect cycle, the master tactician can also come across as a poor strategist.

When confronted by situation X, Zardari’s ability to survive a threatening environment and emerge with his personal position and his government largely intact has imbued him with the image of a master tactician. But look beyond the immediate and, while Zardari does make the most of circumstances, those adverse circumstances are often of his own creation, at least in part.

Legacy time
Now, on the verge of completing a five-year term in office and presiding over an unprecedented civilian-led electoral cycle, Zardari stands on the verge of his greatest victory, or his comeuppance. A divided Punjabi establishment – Nawaz Sharif on one side, the army on the other – and an increasingly regionalised electorate suggest the days of a ‘heavy mandate’ have passed. In a crowded electoral field, the margins between victory and defeat are narrower than ever. And astride this new electoral Pakistan stands Zardari — the master tactician using every trick in the book and then some to drag an unwieldy coalition across the finish line first.

In its dealings with the court, the Zardari-led PPP has gained little electoral advantage. The party base may be convinced that a partisan court has unfairly hounded a duly elected government but the burdens of incumbency hang heavy. Can a voter genuinely believe that the PPP’s performance in office could have been better had it not been for its troubles with the superior judiciary?

The question itself may be unfair, though: few governments anywhere in the world are judged on the basis of their relationship with other state institutions come election time. The judiciary is not meant to be an electoral consideration — and unless the court elects to insert itself into the polling or government-formation process via the liberal use of suo motu powers, it is unlikely to be a factor in whether the PPP gets another term from voters or not.

More worrying for Zardari is that few, if anyone, outside his inner circle believe that the PPP can win re-election through the politics of patronage and accumulating electables alone. Just as obviously, however, Zardari and his inner circle continue to exude confidence, believing that what has worked for five years can work for another five.
This much is clear, though: Never before has the PPP attempted to win an election without the inspiration of a charismatic leader and a populist message. If the electorate does deliver Zardari and his PPP a mandate for another five years, it may also finally bring down the curtain on the politics of ideology and hope.

 

Journal observations

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Dear Diary, order, order, order! I know you’re not doing anything untoward, but I just like saying this. Just thank your stars that I haven’t issued a suo moto notice against you. Why, you ask? Because.

Confused? Good. So, Dear Diary, order, order, order! I’m still very concerned about the whole CNG issue. Just heard that ANP’s Bashir Bilour has been killed by those whose name I cannot speak because it is not in the Constitution.

Anyway, what can be more important than the CNG issue, and the delimitation of Karachi’s constituencies and the President’s role in the ruling party and, of course, the rising price of potatoes, tomatoes and tomatoes and potatoes…

Right. I am feeling mighty pleased with the way I issued a contempt of court order against that Muhajir whose name I can speak but you, Dear Diary, wouldn’t. Shame on you.

So, that Muhajir was going around in London of all the places, badmouthing the gallant judiciary and the even more gallant yours truly. Can you believe that?

What did I do to make him so angry? Did he think I was talking about him when I was talking about potatoes and tomatoes?

My order, nay, order, order, order, to carry out the delimitation of Karachi’s constituencies is for the good of that godforsaken city. Isn’t it obvious how delimitation will curb crime in Karachi?

It isn’t? Dear Diary, you DO NOT have the right to contradict me. Are you by any chance also being written by that crook Malik Riaz? Yes, the same fellow who tried to sully my name by drowning my innocent son in all kinds of false allegations of corruption.

Alhamdullillah, as we have seen how all those allegations were wrong and malicious and false and … Oh, well, what can I say? I’m an impartial judge and should remain neutral.

Dear Diary, why on earth are you snickering? Did I say anything funny? Being a judge is no laughing matter. It is a very serious business. That’s exactly why I have now decided to issue a suo moto notice against the quality of buns being used by bun kebab vendors. And also against the quality of lids being used to cover manholes.

Yes, Diary dearest, I will do anything and everything to keep myself in the headlines. If you have a problem with that then please file a petition against me that will be heard by a bench of senior judges headed by, of course, me!

Me, me, me! If a party can be called PPP, why can’t I call my gallant judicial posse Me, Me, Me?

So, darling Diary, as I was saying, how concerned I am about corruption, CNG, manholes, potatoes and tomatoes and delimitation of … Who? Who got shot? Malala? Was she Hindu? I mean, sounds like a Sanskrit name. She was shot in Swat? Hmmm. Must act against those gangs in Karachi fast. It seems they’ve extended their reach all the way to Swat.

She was shot by whom? Dear Diary, order, order, order! Please do not distract me. I have very important things to think about: i.e. Price of potatoes, tomatoes, tomatoes and potatoes. Diary adjourned.

One-stop shop for all ills

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Illustration by Sabir Nazar

Illustration by Sabir Nazar

Writing about revolution, Karl Marx once said that people who are learning a new language will invariably begin by translating it back into a familiar mother tongue. Let us suspend judgment for the moment on whether the lawyers’ movement can properly be termed a revolution or not. What, however, is the ultimate proof or expression of power in Pakistan? At least in the familiar language of the past, it is the ability to send elected prime ministers home.

Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry, did formally arrive on the big stage, joining the ranks of the historically powerful in June 2012, when he sent Prime Minister Syed Yousuf Raza Gilani packing. Also in the same year, he reportedly remarked that an advertisement involving Katrina Kaif was of such a nature that it could not be watched with one’s family and hence action should be taken. This does illustrate the spectrum of power and vigilance displayed by Justice Chaudhry in 2012.

While the disqualification of then prime minister Gilani remains probably the most significant event of the last year, it is by no means a single example. Ever since the restoration of Chaudhry as the Chief Justice of Pakistan, there has been a vague feeling that the court considers itself the representative of the people. That vagueness is removed now. The Chief Justice has repeatedly said that the court represents the will of the people. With the utmost of deference, it seems that the Supreme Court does not like the elected parliament and believes it to be corrupt and incompetent. Another fact that is beyond dispute now is that the Chief Justice is the Supreme Court. There has been no dissent in any major constitutional case in the past four years. The Supreme Court has accepted, or perhaps more accurately proclaimed, the Chief Justice as its leader. We do not know yet if this is ultimately a good or bad thing; still it forms a slight cause for alarm.

Chief Justice Iftikhar Muhammad Chaudhry signifies an activist judiciary in Pakistan. He has taken judicial activism to its limits in order to establish that the judiciary is the final arbiter of the Constitution in Pakistan. He believes that the Constitution has either been deliberately violated or suffered benign neglect at the hands of all the organs of the state. He, therefore, thinks that the time has come when the judiciary must stand up for strict compliance and enforcement of the Constitution in all its manifestations. This objective cannot be achieved, in his opinion, without subjecting the executive and the legislature to the Constitution and strict adherence to it. 

— Hamid Khan is a lawyer and senior vice-president of the Pakistan Tehreek-e-Insaf.

Earlier in the last year, the court took cognisance of the “memo” allegedly written by Hussain Haqqani, then Pakistan’s ambassador in Washington, to solicit American support against the Pakistan Army. The foray into national security and foreign policy was a first, even by the elevated standards of judicial activism of the past four years. Here again, there was the recognisable taste of guarding our national interest at all costs even if that cost entailed some disregard of democratic values. From appointment and transfer of government officials to setting the prices of the CNG to delimitation of the constituencies, Chaudhry’s influence has been visible everywhere. The rhetoric about separation of powers has effectively been buried. The Chief Justice would act on anything and everything which he believes to be in public interest. His intentions have always been noble, if also grand and, as is the case with most grand intentions, the narrow confines of procedure have to sometimes be traversed.

One thing Justice Chaudhry is not lacking in is courage, although there are excesses sometimes. Indeed, courage it was which led to the brief shining moment this past year, when for the first time in Pakistan’s history the military establishment and intelligence agencies were indicted by him in the Asghar Khan case.

The decision in the Asghar Khan case decided in 2012, in particular the direction that army officers are not to obey unlawful commands made by superior officers outside the battle field, has the potential to strengthen democracy by warning accomplices of future military intruders into the constitutional process that they will be held criminally liable for their actions, without being able to hide behind the defence of obedience to the command of a superior.

— Salman Akram Raja is an advocate of the Supreme Court of Pakistan

 

The temptation to judge him too harshly should be resisted. We have made him into the omnipotent, one-stop shop for all our ills. Not a single day passes when a political leader, a media anchor or just someone from the public does not demand the Chief Justice to take “suo moto” notice of one thing or the other. He now has a constituency and people with constituencies become predictable, perhaps even weak — doing what is expected of them. As Chaudhry now goes around addressing bar councils around the country, it does not strike one as a sign of strength. What

W H Auden wrote in his tribute to Yeats, “he became his admirers” is applicable here.

Chaudhry chose to swear on the Holy Book when allegations of corruption were leveled against his son. The yet unproven allegations against his son are not unusual for sons of powerful men in Pakistan. Iftikhar Muhammad Chaudhry of the lawyers’ movement was an ideal, a principle; it was his moment of immortality. Nobody ever lives up to that moment again; it is perilous to even try.

The Chief Justice of 2012 represents our desire for solutions from above, our quest for the “Messiah” and perhaps the dangers involved.

The writer is a lawyer and partner at Ijaz and Ijaz Co.

(In the print edition, the words “ministers home” were missing from the following line: At least in the familiar language of the past, it is the ability to send elected prime ministers home. This was due to a proofing error that we regret.)

Boundary disputes

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Attorney general Irfan Qadir was categorical in his September 25 letter to the Chief Election Commissioner (CEC) Fakhruddin G Ebrahim: “the Election Commission of Pakistan (ECP) has the exclusive obligation to determine the questions of disqualifications … [it is not supposed] to perform its functions on the directions of any court in Pakistan including the Supreme Court.” He then added a poorly concealed message for Ebrahim: if you abide by the court’s verdict without “determining whether the Supreme Court is mandated by the Constitution of Pakistan to issue directions to the ECP or not”, you will be violating your oath of office to “protecting and preserving the Constitution”. Qadir wrote the letter as he was “compelled to draw [the CEC’s] attention” to a September 20 decision of the Supreme Court which had disqualified 11 parliamentarians for holding dual nationalities.

The attorney general was clearly attempting to define the constitutional boundaries between the country’s supreme judicial forum and its highest election institution with an agenda: the Supreme Court should have nothing to do with disqualifying the members of the Parliament. But minus the political angle in his letter, this is what many others are also saying — that the Supreme Court is interfering with and encroaching upon ECP’s turf.

From the Editorial Desk – Saving institutions

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The blunderbuss of a judiciary taking potshots at the executive and parliament — for supporters of the government this could be an apt description of how the Supreme Court of Pakistan has been behaving in recent months and years. Whether they are right or wrong is not important, though. What matters more is the outcome of what is perhaps, the longest-running institutional turf war in the history of Pakistan. Could there be an outcome anytime soon?

An even more important question to ask could be: what kind of outcome are we looking at? Soothsayers would have you believe that there is only one plausible outcome, that the end is nigh for the Pakistan Peoples’ Party (PPP) rule. That they make such predictions with deliberately ill-concealed glee is meant to prove that their prognosis could be wishful but it is widely shared — who wouldn’t be happy at the much-anticipated curtain on a government that everybody loves to hate. But the reality could be as far away from such forecasts as one legitimately-due general election is from the next.

The government has survived – more accurately, muddled through – so many deadlines of its imminent collapse that it is now using them as a self-defence mechanism even against genuine criticism of its policies and legitimate calls for improved service delivery. For an administration that has stumbled from crisis to crisis, the fact that it has existed for so long is an ‘accomplishment’ that it never tires of congratulating itself for. And it has been so ‘busy’ trying to fend off one ‘vile machination’ after another, planned by the invisible masters of Pakistan’s destiny, that it did not find time at all to do the job that it was voted in to do — to set the economy, the state and society back on track. The peddlers of political prophecies, the clairvoyants, and their puppet masters, have indeed helped this bumbling, blundering monster of an incompetent government in coming up with an excuse to justify its failure. By all means, it deserves a severe thrashing at the Hastings — that is, the next general election when one becomes due.

But the irony is that many senior leaders of the ruling party are seriously harbouring not-so-secret hopes of winning the polls again, albeit with possibly reduced strength. So, what great good has come out of fortune-telling in the name of reporting and analysis and judicial chest-thumping disguised as sanctimoniously moral and legal discourse over all these years? Yes, a certain politician from Multan is no longer a member of the National Assembly. Big deal? His son has managed to secure a narrow victory in a by-election. And that is what is so disconcerting. If all the column inches, broadcast hours and decidedly one-sided judicial activism employed in an unrelenting anti-PPP invective have failed to sway the last four thousand or so decisive voters, what will? A few more months of indulging in the same vain tactics is definitely not going to make much of a difference.
The party spin doctors will surely try to turn the bruises PPP has sustained in the process as trophies and medals ‘selflessly’ secured in the valiant ‘defence’ of Pakistan’s nascent democracy. And that’s about it. They seem to feel that they are winning the war of attrition; their opponents are already exhibiting signs of weariness after having launched one futile attack after another with as much gusto as there could ever have been. Now is the time for the pugilists in wigs and the wrestlers in khakis – as well as their support staff masquerading as media – to put an end to the charade and get serious about the business of the state.

The collateral damage that their antics have caused has been immense and it has mostly destroyed the institutions of state and society much more than an easy to hate party and its abominable administration. What we are left with is a blood-littered body politic in which the individuals are winners and the institutions losers. The parliament, the judiciary, the constitution — each one of these is left unsure of its responsibilities even while the individuals representing them respectively are insisting on exploiting the rights conferred on them by virtue of their place in the institutional scheme of things for preserving personal interests and promoting private agendas. The prime minister says the people of Pakistan have, through an elected parliament, authorised him to act at his own sweet will in running – or ruining – the affairs of the government; the chief justice claims he can do whatever he wants to — and send an elected chief executive home in the name of the rule of law and the independence of the judiciary; and the president tells his minions to let it be known to all and sundry that he has constitutional immunity. Allow these conflicts of personalities to continue and all you will have is inflated egos and atrophied institutions.

Live discussion on contempt of court

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The government has passed a new contempt of court law to circumvent the political implications of a number of contempt of court cases involving many senior government functionaries. On July 21, Saturday, the Herald invited Asma Jahangir and Feisal Naqvi to a live online discussion about the political theory behind contempt of court.

July 21, 5:30 pm to 6:30 pm (PST)

Feisal Naqvi

Feisal Naqvi is a Supreme Court lawyer based in Lahore. His firm, Bhandari, Naqvi & Riaz, specialises in Constitutional litigation. Naqvi has also taught Constitutional Law at a private college. On July 21, 2012 the Herald invited him to a live discussion about the evolution and practice of contempt of court laws in Pakistan.

July 23, 4 pm to 5 pm (PST)

Asma Jahangir

Asma Jahangir is a senior Supreme Court lawyer, former president of the Supreme Court Bar Association and an internationally renowned human rights activist. On July 21, 2012 the Herald invited her to a live discussion about how the contempt of court has come to occupy a central place in Pakistan’s judicial and political affairs.

 

Necessity as the mother of laws

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The Maulvi Tamizuddin Khan case was the first time when the Doctrine of Necessity was hinted upon

When in 1955, Chief Justice Mohammad Munir said in one of his rulings that “necessity knows no law”, he never knew that this phrase would echo the language of chaos throughout Pakistan’s political history. He argued that the phrase was backed by such laws as Braxton’s maxim, “that which is otherwise not lawful is made lawful by necessity,” and further elaborated by the Roman dictum that ultimately “the well-being of the people is the supreme law.”

Munir used this to indemnify Governor-General Ghulam Mohammad’s high-handed moves against the Constituent Assembly but it would not end there. It would come up again three years later in 1958 when Ayub Khan imposed martial law and took over the government abrogating the 1956 Constitution, and then nearly two decades later in 1978 to legalise the military takeover of General Ziaul Haq. Another two decades later, in 2000, it reared its ugly head justifying General Pervez Musharraf’s overthrow of Nawaz Sharif’s heavy mandate.

The notion of the law of necessity argues that in certain situations the national legal order of a state is disturbed by a ‘revolution’ not considered by the Constitution. When this ‘revolution’ takes place it not only challenges the existing legal framework but serves to demolish the present Constitution. This basically translates into the fact that subversive actions can legally be taken by one man alone for the larger good, whatever that good may be.
The first time this doctrine was hinted at was in the Maulvi Tamizuddin case on March 21, 1955 when the Federal Court led by Munir legalised the dissolution of an entire assembly on the orders of one man. The full concept of ‘necessity’ came to the fore on October 27,1958 in the State vs Dosso case in which Munir validated the military takeovers of Iskander Mirza and Ayub Khan, observing that “a successful coup d’etat is an internally-recognised legal method of changing a constitution.” What he meant was that this seemingly illegal act was now made legal in such a way that a single military man could walk in and subvert the will of the people — described in Munir’s verdict as a “legalised illegality”.

In his book, Highways and Byways of Life, Munir himself noted that his decisions had been viewed “as the starting point of the misfortunes of this country”. That criticism could not have been truer.

The fact is that the imposition of martial law has never been envisaged by any constitution in Pakistan but our superior courts have always validated it and held that the new regime is always a transitory phase, representing constitutional deviation dictated by the utmost necessity. This ‘necessity’ has been the bane of all democratic dispensations.

A decade after Musharraf used the Doctrine of Necessity once again, the Supreme Court under Chief Justice Iftikhar Muhammad Chaudhry passed what is termed a landmark ruling. In its July 31, 2009 verdict on the judges who had taken oath under Musharraf’s Provisional Constitutional Order, the court declared that the November 3, 2007 emergency was illegal and, thereby, stressed that the Doctrine of Necessity had been buried forever. “… no such judge shall, hereinafter, offer any support in whatever manner to any unconstitutional functionary who acquires power otherwise than through the modes envisaged by the Constitution…” That was supposed to be the end.

However, with political turmoil hitting the country once again, whispers of extra-constitutional measures have begun to resurface. There are many who say that the Doctrine of Necessity has been buried by the current court. But let us not forget that the Doctrine of Necessity had also been invalidated in April 1972 in the Asma Jilani case when the Supreme Court ruled that the validation of Yahya Khan’s extra-constitutional steps based on the principle of ‘necessity’ was “unsustainable” — albeit after Yahya had already left power.

That didn’t seem to stop Zia from overthrowing Zulfikar Ali Bhutto only a few years later in 1977. Later, a ruling was also delivered terming Zia’s usurping of power illegal — but that too after he had died in 1988. Though these verdicts have lost their lustre because of their post-facto nature, they did set judicial precedents which didn’t seem to stop Musharraf in 1999, either.
Buried or not, exhumation is regular practice in Pakistan.

Democracy

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Former Prime Minister Yousaf Raza Gilani shakes hands with Chief Justice Iftikhar Muhammad Chaudhry before a meeting in Islamabad in 2010

Many political analysts agree to the extent that the SC verdict has “invented” a new mechanism to oust a government without the involvement of the Parliament at a time when Article 58(2)(b) is no longer in the statute books and the military is no longer willing to get directly involved in politics. For Dr Hasan Askari Rizvi, a political analyst based in Lahore, the present political situation is similar to a military coup in many respects. “The Supreme Court removing a prime minister is just like the army removing a prime minister. The army always created justification for its coups; in the same manner now the court has created justification to remove a prime minister,” he says.

When the Herald asks Rizvi to comment about the scenes of jubilation in different parts of Pakistan over the ouster of a prime minister who was seen as being both corrupt and inefficient, he responds by referring once again to military coups. “The present situation is similar to what happens following a military coup; public opinion gets divided: some people distribute sweets while others condemn the generals for launching the coup. The same thing is happening now.”

Given the history of institutional imbalance in the country, where powerful unrepresentative institutions have ousted elected representatives more than once, it is likely that the SC verdict will further shift the power balance in favour of non-representative and non-elected institutions. Some analysts and jurists tend to agree that the consequences will be similar to those brought about by past sackings. In the long run, Rizvi says, “the judgement has damaged parliamentary democracy as much as a military coup [would have]”.

Dr Mohammad Waseem, a senior teacher of politics at the Lahore University of Management Sciences also views the SC verdict as being akin to the sacking of governments under Article 58(2)(b) and believes that it will have serious consequences for parliamentary democracy in Pakistan. “The first implication [after the judgement] is that parliamentary sovereignty is gone. This was the effect of Article 58(2)(b) and this is the effect of the present situation,” he says.

For Rizvi, another broader implication of the judgement is that the SC has extended its mandate far beyond what is envisaged by the Constitution. “What the SC should have done is send the reference to the Election Commission of Pakistan which has the authority to disqualify the members of the Parliament. Instead it disqualified Gilani on its own,” he says. “This is actually an expansion of domain on the part of the SC.”

While legal experts do not want to draw parallels between Article 58(2)(b) and the SC verdict against Gilani, they agree that no one in the existing institutional set-up can now stop the SC from exercising the power to sack the prime minister again. S M Zafar, a senior lawyer and former Senator, disagrees with the argument that the SC judgement is akin to Article 58(2)(b) but then adds: “No future prime minister will behave like [the outgoing prime minister has] and if anybody does then he will have to face a similar judgement.”

Justice (retd) Tariq Mahmood, who was also a top-ranking leader of the movement for the restoration of Chief Justice Iftikhar Muhammad Chaudhry in 2007-2009, says legally speaking the verdict and Article 58(2)(b) “are different concepts” but “their political fallouts are similar.”

There is another, and perhaps important, dissimilarity. The SC, unlike the coup-making generals and parliament-sacking presidents, refused to take responsibility for the political implications of its decision — instead, the judges asked President Asif Ali Zardari to take necessary steps to ensure the continuity of the democratic set-up. Even if one accepts that the SC has nothing to do with the political implications of its decisions as long as they are legally and judicially sound, it is difficult to ignore the fact that Gilani’s sacking and the prospects of a similar fate awaiting the new prime minister has certainly pushed the existing democratic and parliamentary set-up further towards the brink.

The next moves

On June 27, the SC directed the Attorney General of Pakistan to obtain a written reply from the new Prime Minister Raja Pervez Ashraf by July 12, 2012 if and when he will implement the court’s order to write a letter to the Swiss authorities for reopening of cases against Zardari. Ashraf, in the meanwhile, has already stated that after becoming the prime minister he will not write the letter because he believes Zardari enjoys constitutional immunity from legal proceedings both inside and outside Pakistan.
For legal experts, this means that Ashraf will face the same Gilani-like situation, the difference is that the court may not take as many months as it did earlier to disqualify the new premier after his refusal to write the letter. They point out that the court may no longer follow the earlier process of issuing a verdict and then waiting for a ruling by the Speaker of the National Assembly. So Ashraf’s disqualification, if and when it happens, may take a few weeks rather than many months. “Perhaps this time, the court can directly come to the point of disqualifying the Prime Minister if he disobeys the court order,” says a senior constitutional lawyer in Islamabad.
The PPP and its partners in the ruling coalition have so far emitted mixed signals about their course of action following Gilani’s dismissal. On the one hand, they have implemented the SC verdict against the outgoing premier, while on the other, they say they have not accepted the judgement and have reservations about it given that it appears harmful for democracy. Reports suggest that in the coming sessions of the National Assembly, many ruling coalition legislators may wish to indulge in a heated, perhaps even a nasty debate about the verdict against Gilani.

Will the ruling coalition let another prime minister fall due to another SC verdict? Nobody in the government is ready to give a direct answer. “The government will try to buy as much time as is possible before it takes any decision,” says a senior bureaucrat in Islamabad.

Independent analysts point out that buying time will not be easy for a government which is already reeling under the weight of its own inefficiency in tackling the economically crippling energy shortages and which is hobbled by unrelenting allegations of large-scale corruption among its ranks. Pointing out that the “government is fast losing credibility and legitimacy,” Waseem says that “the SC verdict is not a one-time neutral step but it has the effect of [further] weakening an already weak government.”

Acoording to a senior bureaucrat the only way for the government to neutralise the consequences of the court’s recent and future actions is to sit with the opposition and decide on a unanimous road map for early elections. For example, he says, the government and the opposition should agree on who will run the caretaker government in the run-up to the election; they should also be able to unanimously decide on the next chief election commissioner and, most crucially, on what role Zardari will have in the caretaker administration. If the system falls before the two sides have agreed on these issues, they risk losing out to the unelected institutions, which will then decide who will be in the caretaker government and the Election Commission.

While the government has given no solid indication that it is willing to cross the bridge and sit with the opposition to negotiate and settle these crucial issues, the opposition too seems focused on immediate gains rather than thinking about long-term political stability and democratic institutionalisation. In private conversations, the leaders of Pakistan Muslim League-Nawaz (PMLN), the main opposition party, admit that the disqualification of a prime minister by the SC will hang like the sword of Damocles over the heads of all future prime ministers but in their public statements they don’t want to be seen as supporting, even indirectly, a beleaguered government. Former prime minister and current PMLN chief Nawaz Sharif, who knows from his experience of confrontation with the judiciary in 1997 that there are no easy ways of emerging from such an imbroglio, told a television interviewer recently that Gilani’s sacking was “real accountability”.

“It is true that the Parliament is not expected to be a trade union or a regimented force that would act in unison in any crisis situation — after all, dissent and differences are the essence of a parliamentary democracy,” says a PPP legislator. Still, one would expect a collective response from the government and the opposition when the very essence of parliamentary democracy is under threat, he adds.

There are certain voices outside the Parliament arguing that the SC should handle the situation with caution. Senior lawyer and human-rights activist Asma Jahangir has suggested that the SC should send the letter to Swiss officials on its own, through the office of its registrar, without involving the government and thus avoiding the possibility of putting another prime minister on trial.

Mahmood, while he believes that it will be extremely difficult for the judiciary to send another prime minister home, wants everyone to avoid the possibility of a repeat of Gilani’s sacking. “That will have far serious implications for the system,” he says.

Thou shalt not judge

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Mubashir Lucman and Meher Bukhari in a behind-the-scenes TV grab of an interview with business tycoon Malik Riaz on DunyaTV

The curtain lifts: an obscure talk show broadcast on the Internet from Washington reveals monetary transactions allegedly involving Chief Justice (CJ) Iftikhar Muhammad Chaudhry’s son, Dr Arsalan Iftikhar. A few days later, Malik Riaz, a real estate tycoon who runs the biggest construction business in Pakistan, speaks at a press conference, claiming that 340 million rupees have changed hands between his son-in-law and the CJ’s son; he also accuses the latter of running the judiciary like a ‘Don’. Next come a series of events which apparently have nothing to do with Iftikhar or his alleged benefactors and accusers: an elected prime minister is sent packing, an arrest warrant frustrates a senior parliamentarian from becoming the new head of the government and when a new prime minister is finally agreed upon speculation becomes rife as to how many days he will stay in office. Then, the curtain drops.

In between the accusations of impropriety against Iftikhar and the fall of outgoing prime minister Yousuf Raza Gilani, the judges also scrutinise the role and ethics of the media and review, reject and bin a ruling by the Speaker of the National Assembly. A case of one institution putting itself above all others? Apparently, yes. This is especially troubling at a time when that institution’s own conduct is not beyond reproach — the risks of its strikes against the executive and parliament could be grave for the nascent and perpetually-threatened parliamentary democracy inPakistan.

While it took the first 19 days of last month for the entire drama to unfold, there are signs that it has been long in the making — and not just because Gilani was being tried for contempt of court for months. About eight months ago, a Pakistan Peoples Party (PPP) Senator who is also a Supreme Court (SC) lawyer, met Chaudhry and complained about the suspect deals involving his son. “The CJ dismissed the allegations and refused to see the documents brought by the senator-lawyer,” says a senior lawyer privy to the meeting.

Some time later, Chaudhry Aitzaz Ahsan, who appeared in the SC as Gilani’s lawyer and who was a senior leader of the movement that campaigned for Chaudhry’s restoration, apprised the CJ of his son’s reportedly suspicious activities. “Ahsan also met Iftikhar twice inLahoreon the instructions of the Chief Justice to inquire about the allegations, which he flatly denied. Ahsan then told the CJ that his son was not willing to reveal the truth,” says a source who is familiar with the nature of these meetings.

After local news channels started reporting and discussing Riaz’s allegations, the court immediately took up suo moto hearings. The stories of Riaz’s subsequent ‘fixed’ interview with the Lahore-based DunyaTV channel soon led to the formation of a SC commission to look into the role of the media in the entire case and recommend professional and ethical guidelines for news coverage and talk shows.

Many at that stage believed that the impossible had happened in Pakistani politics: two of the greatest tormentors of thePPPgovernment and Zardari – the judiciary and the media – were finally coming face-to-face exposing the skeletons in their own cupboards. Interested outsiders and independent observers wondered how the judiciary would handle allegations of impropriety against a family member of the top-most judge of the country, having hauled many senior members of the ruling coalition and their offspring into courts over more or less similar charges. There was also a lot of interest regarding how the media would go about discussing allegations against Dr Arsalan Iftikhar when it has never brooked any restraints or limitations in discussing allegations against politicians.

The media’s role came under further spotlight when Chaudhry convened a full court meeting of all the SC judges on June 15, making Dr Abdul Jabbar, the head of the Pakistan Electronic Media Regulatory Authority (Pemra), stand in the dock and explain as to why he failed to take action while the judiciary was being ridiculed on television talk shows. As the CJ reprimanded the Pemra chief, the footage of Riaz’s interview could be seen playing on a big screen in the meeting room.

This was also the first time inPakistan’s history that a full court meeting was aired live. Justice (retd) Tariq Mahmood, a stalwart of the pro-Chaudhry lawyers’ movement, points towards this rather extraordinary step and says: “This is unprecedented. There is no example in the past when a full court meeting, which is supposed to discuss administrative issues, was opened to the media.”

The meeting also seemed to have gone against the code of conduct for the judges of the Supreme Court and the high courts, notified by the Supreme Judicial Council onSeptember 2, 2009. The code says “a judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friends.” The same code also talks about the limits to the publicity that a judge can seek. “Functioning as he does in full view of the public, a judge gets thereby all the publicity that is good for him. He should not seek more,” reads the code. It is in the light of the latter provision in the code of conduct that Mahmood says that the “judges are not supposed to be shown on television”.

Yet Mahmood was aware that nothing was to come out of all this that could hurt the judiciary or the media, not at least in the short run. “Everything will fizzle out,” he told the Herald in mid-June even whileIslamabadwas abuzz with speculation about the possible outcome of this judges-versus-journalists contest.

That the subsequent events have proved him right is no consolation to Zardari, Gilani, thePPPand their partners in the ruling coalition. The sword of further judicial activism aimed at prime ministers and parliament continues to dangle over their heads (see Democracy).

Many senior lawyers and jurists, in the meanwhile, worry that the judiciary is moving away from its fundamental functions in its efforts to maintain the media-driven pace and anti-government direction of its activism. Mahmood says the SC has gone too far into exercising its “extraordinary jurisdiction” under Article 184(3) of the Constitution. This article allows the court “to make an order” on “a question of public importance with reference to the enforcement of any of the Fundamental Rights” and all suo moto hearings derive their legitimacy from this constitutional provision. By doing so, he says, “the court is ignoring its primary responsibility which is to deliver justice. Instead of delivering justice to ordinary litigants, the court has focused on extraordinary jurisdiction.”

Pointing to a recent suo moto by the SC on the reports that four women were killed in Kohistan district after a tribal jirga there found them ‘guilty’ of clapping at a wedding ceremony, he says: “Millions of rupees have been spent on the case by sending teams through helicopters to verify the allegations.” Now that it has been proved that the women are alive, “no action has been taken against the people who made the allegations,” Mahmood adds.

Another extraordinary instance of the SC exercising its “extraordinary jurisdiction” was the suo moto hearing against actress Atiqa Odho after bottles of liquor were reportedly found in her luggage atIslamabadairport in June 2011.

Unlike Mahmood, however, there are lawyers who are afraid that they could face the wrath of the court if they speak out against this trend. For instance, a senior Islamabad-based lawyer points to a family case pending since 2000 at the SC; he does not want his name mentioned. “The case number is Civil Appeal 1143/2000 (Noor Bibi vs Brahim Khan); it was filed in April 1983 and, after decisions by the trial court and high court, it has been pending in the Supreme Court for the last many years,” he says.

The number of pending cases at the SC has indeed reached staggering proportions. According to the recently published annual report of the SC, which covers the period between April 2010 and December 2011, 8,220 cases were pending at the principal seat inIslamabad, 474 cases were pending at the Karachi registry and 6,152 cases were yet to be decided atLahoreregistry. InPeshawarandQuetta, 1,840 and 560 cases were pending respectively. In the last six months, between the start of December 2011 and end of May 2012, another 649 cases were added to the list of the pending cases at the SC, says a well-informed source.

In its annual report, the SC also acknowledged that the number of pending cases was so high that it would require 10 additional months to dispose of them at the current rate of disposal. The report said the reason behind the vast number of pending cases was that judges were not available to adjudicate on ordinary lawsuits as they were required to sit on benches hearing constitutional cases. The report said that the court took up 136 constitutional cases under Article 184(3) of the Constitution, including 38 suo moto hearings. Out of this, 46 constitutional petitions and 29 suo moto cases were disposed of during the period that the report covered.

The judges’ code of conduct, however, declares that a “judge shall take all steps to decide cases within the shortest time … and make every endeavour to minimise suffering of litigants by deciding cases expeditiously … A judge who is unmindful or indifferent towards this aspect of his duty is not faithful to his work, which is a grave fault.” The less said about this, the better.

What is surprising is the absence of debate on these issues in the media. While a few people, such as the former Supreme Court Bar Association chairperson Asma Jahangir have openly spoken about the SC’s conduct, the impact of its suo moto hearings on the delivery of justice as well as the rule of the law and the political and human-rights consequences of the SC’s verdicts, the media has been at best silent and at worst trying to curry favour with the judges. Embroiled in an internecine competition, television channels are using talk shows, news bulletins and even distorted revolutionary poetry and over-the-top slogans to great effect in their desire to be seen on the right side of the judiciary.

Adnan Rehmat, the executive director of Intermedia Pakistan, believes that such broadcasts are not part of the media’s primary role as the watchdog of public interest. “The media has taken a distinct position in favour of the SC. Unabashedly they are siding with the SC,” he says.

It is in the light of such real and perceived ‘transgressions’ that many within the media and civil society have spoken about the need for regulating the media. But at least one recent proposal to regulate the media has backfired due to stiff resistance by both journalists and owners of media houses. When in February this year Pemra circulated a proposal containing draft regulations for electronic media content, most media houses, analysts and anchor persons shred it to pieces, calling it a government attempt to muzzle the media because it was revealing official corruption and misgovernance.

Senior journalist Amir Mateen believes such behaviour stems from the media’s unwillingness to accept any regulation, from within and without. “There are four ways to keep a check on the media. First is libel/defamation laws, second is government control, third is internal checks and fourth is public pressure,” he says. “The media is not willing to accept any of them.”

Whether the media continues to behave in the same defiant mood after the two-member SC commission, comprising Justice Jawad Khwaja and Justice Arif Khilji, comes up with its recommendations is anybody’s guess. Meanwhile, the judiciary, the media as well as the executive are all looking like Olympic gold medallists that have tested positive for using banned substances.

Rough justice

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President Asif Ali Zardari meets with US senator John Kerry (second from left) and US ambassador in Pakistan Cameron Munter (left) at President House in Islamabad, with the then Prime Minister Yousuf Raza Gilani, in May 2011

President Asif Ali Zardari meets with US senator John Kerry (second from left) and US ambassador in Pakistan Cameron Munter (left) at President House in Islamabad, with the then Prime Minister Yousuf Raza Gilani, in May 2011

June 2012 will go down in the legal and political history of Pakistan as a watershed month as the Supreme Court (SC) of Pakistan intruded not only the domain of other state institutions and violated the code of conduct for the superior judiciary but also disregarded some of its own recent and not-so recent pronouncements.

It was the June 19 decision to disqualify Yousuf Raza Gilani as a member of the National Assembly (NA) and as Prime Minister of Pakistan that really stole the limelight. The decision, delivered through a short order which states that the reasons for disqualification will be recorded later, has been criticised on various grounds. The critics of the verdict variously call it legally infirm, an encroachment upon the domain of parliament and other constitutional offices, lacking impartiality and being potentially detrimental to democracy in Pakistan.

On the lack of impartiality first: while the decisions of a court may be debated and questioned, the judges should never lose the appearance of impartiality. In a 2006 speech during the Golden Jubilee celebrations of the SC, Justice Asif Saeed Khosa had said “… independence of judiciary is not an end in itself; it is only a means to the end, and the end for sure is impartiality of judiciary.” Unfortunately, the order for Gilani’s disqualification is a glaring example of the court’s transgression into the jurisdiction of other constitutional offices, if not outright bias.

Taking sides

A bit of history may explain how. Gilani was disqualified because he refused to write a letter directing Swiss authorities to reopen cases against President Asif Ali Zardari which had been withdrawn by the government under the National Reconciliation Ordinance (NRO). One relatively little known fact about those cases is that the then attorney general Malik Qayyum withdrew them in pursuance of a March 4, 2008 decision by the Sindh High Court. After hearing a constitutional petition (No 265 of 2008) by Zardari, the court ordered the federal government and the National Accountability Bureau (NAB) that, under the NRO 2007, they withdraw all cases pending against him within Pakistan and outside, specifically proceedings in Geneva and London.

It may be argued that the verdict was delivered by judges whose appointments or their act of taking oath under General (retd) Pervez Musharraf’s Provisional Constitution Order (PCO) of 2007 were declared unconstitutional. But the SC unambiguously gave protection to all the decisions that the so-called PCO judges – and those of the judges who were appointed after the imposition of the emergency –  made between November 3, 2007 and July 31, 2009, when the SC sent them packing. The SC declared in its July 31, 2009 judgement (Sindh High Court Bar Association vs Federation of Pakistan) that the decisions made by the PCO judges were protected under the doctrine of “de facto exercise of power” as enunciated in the 1998 Malik Asad Ali case.

So when the SC ordered the revival of the cases against Zardari on the basis of infirm legal reasoning, it created the impression that there could be something other than legal and judicial procedures and processes at stake. Another reason why the SC appears partial in this case is because it has single-mindedly pursued the revival of cases which are acknowledged to have been instituted as part of a political witch-hunt in the first place. For at least one section of society, perhaps a minor one, the judiciary has become part of that same witch-hunt.

When on April 26, 2012, a seven-member SC bench found Gilani guilty of contempt of court, the verdict suggested that the conviction might entail his disqualification as a member of parliament under Article 63(1)(g) of the Constitution. Article 63(1) enumerates conditions under which a person is disqualified to be a parliamentarian. Under sub clause (g), first inserted by General Ziaul Haq in 1985, a person shall be disqualified from being a member of parliament if, among other things, “he has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to … the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary…” The court in its order declared that Gilani, being prime minister of the country, had brought the court, and thus the judiciary, into ridicule as he had wilfully flouted the court’s order.

But the charge sheet against Gilani, on which the court based its verdict, did not include the charge of ridiculing the court. Nasar Ahmed, an SC lawyer, argues that the former prime minister was convicted for the offence of contempt of court defined and described in the Contempt of Court Ordinance, 2003, on the basis of his non-compliance of a court order. Whereas the offence of bringing “into ridicule the judiciary ofPakistan” as mentioned in Article 63(1)(g) is a separate and distinguishable offence. If it were not, why doesn’t Article 63(1)(g) simply state disqualification for contempt of court tending to bring into ridicule the judiciary of Pakistan, Ahmed argues.

Salman Akram Raja, another SC lawyer, argues that “ridicule is an ingredient of contempt”. Ahmed, however, disagrees. “Even if it is granted that ridicule is an element of contempt of which judicial notice could be taken, the court had to give the accused specific notice that his acts had the effect of ridiculing the judiciary, which was not done in this case.” It is a fundamental requirement of a fair criminal trial that the charge has to be clear and specific.

The court’s impartiality and credibility has also suffered on account of the fact that Gilani’s counsel Aitzaz Ahsan and the Attorney General of Pakistan, Irfan Qadir, both requested at the early stage of the case for the outgoing premier’s disqualification that a larger, not a smaller, bench was required to hear petitions that requested the court to implement the decision of the seven-member bench.

In another case heard by the SC in June, Chief Justice (CJ) Iftikhar Muhammad Chaudhry’s conduct appeared in conflict with the judges’ code of conduct and the order in the case looked like having gone against the court’s own pronouncements. The case – revolving around the allegations that Chaudhry’s son, Dr Arsalan Iftikhar, had reportedly taken money from the family of the real-estate tycoon Malik Riaz to influence the outcome of the court cases involving Bahria Town – was taken up by the CJ as a suo moto under Article 184(3) on June 6, 2012 “in response to a series of talk shows aired on the electronic media.”

That Chaudhry decided to preside over the bench hearing the case with a copy of the Holy Quran placed before him, knowing fully well that one of the parties was his own son, was in clear and obvious violation of the Code of Conduct for Judges of the SC and High Courts that the Supreme Judicial Council (SJC) notified in 2009. The relevant part of the code reads: “A Judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friends”.

When the attorney general repeatedly reminded the court about the code of conduct, Chaudhry invoked Islamic history “when the holy personalities would judge their sons and daughters without fear”. But the CJ appeared to have forgotten that we have a Constitution and a code of conduct to follow in the judicial affairs and, more specifically, that he is no holy person.

Even though he later detached himself from the bench, it may be argued that the CJ had already violated the code and, therefore, could be charged with misconduct. As if that were not enough, he kept hearing cases involving Riaz for quite some time after the Arsalan case hearing, despite having an obvious conflict of interest.

Fundamental questions and doubts in the public mind regarding the Arsalan case are twofold: first, did the CJ’s son accept money and benefits from Riaz in the name of his father? Secondly, if so, did the CJ know about the transactions? The court could have tried to find answers to these fundamental questions by setting up a commission as it did in the memo case. Instead, it chose to sidetrack these questions, declaring that, generally, the court refrains from the exercise of its extraordinary inquisitorial powers and that the scope of the suo moto notice over Riaz’s allegations was to answer the question, of public importance, as to whether the SC or its judges have ever been involved in any such acts as alleged by him. “The matter of public importance in this case was the aspersion cast on the independence and integrity of the superior judiciary of this country,” the court pointed out. It then recorded that “a resourceful person such as Riaz has been forced to concede failure in his attempt to compromise the integrity and independence of the judiciary, despite the alleged payment of 34 crore rupees.” This, said the court, “should clear all doubts on this score.”

The assertion that public concerns stand addressed because Riaz has admitted in writing that the court remained uninfluenced by his bribes does not appear to be based on ground reality. For one, Riaz continued to accuse the CJ of being cognisant of his son’s alleged misdeeds even after submitting a statement before the court to the contrary. Is this, then, a case of selective justice?

In the Arsalan case, the court has effectively given the CJ a clean chit even before a proper inquiry is held to answer the fundamental questions and doubts lurking in the public mind. What if NAB or any other investigating agency finds out that Arsalan did receive money from Riaz’s family? After the SC order, it will be difficult for anyone to demand further inquiry into the CJ’s probable role in the entire affair. This could well be in conflict with the court’s own judgement in the case. “We, as judges, should be the last people to draw premature conclusions which are required to be proved through evidence,” is how one part of the verdict reads. Yet, it effectively declares the CJ clean even before proper investigation has begun and evidence brought on record.

Islamabad-based lawyer Babar Sattar questions the SC’s application of double standards and calculated selectivity in cases of a similar nature, saying that the court’s assertion that it “usually refrains from exercising its inquisitorial powers under Article 184(3) isn’t backed by its record in the many corruption cases it has handled recently.” In an op-ed piece published in The News on June 16, 2012, he says when the SC “assumes supervisory jurisdiction and issues categorical directions and time frames for inquiries in other scandals,” why should it not do the same in Arsalan’s case? “Application of restraint in one case and activism in others without any significant distinction in the subject matter raises the question of whether the court is applying double standards,” he added.

It may, then, be contended that a judiciary, otherwise independent of the executive’s pressure, may not necessarily be impartial. And impartiality being the indispensable and essential condition for the judiciary’s independence as Khosa had mentioned in his speech, mere achievement of independence from the executive’s influence may not be good enough if the real objective remains illusive.

Dominating all domains

The three-member SC bench, led by Chaudhry, that disqualified Gilani on June 19, did so with retrospective effect — that he stands disqualified from the moment he was convicted on April 26, 2012. This is an action even more difficult to explain as it means that the court has effectively rendered redundant Article 63(2) of the Constitution – which authorises the speaker of the NA to decide whether the question of a parliamentarian’s disqualification has arisen – and Article 63(3), which vests in the Election Commission of Pakistan (ECP) the final authority to decide whether a member of parliament is disqualified.

By disqualifying Gilani there and then, the bench also went way beyond what the seven-member bench had said in its order on April 26, noting that “the findings and the conviction for contempt of court recorded above are likely to entail some serious consequences in terms of Article 63(1)(g) of the Constitution.” The seven judges could have directed the Speaker to send a reference for Gilani’s disqualification to ECP but they did not do so. Rather, they chose to leave it to the Speaker and then to ECP.

It is difficult to explain why the three-member bench in its order of June 19, instead of sending the case with observations and well-reasoned findings back to the Speaker, chose to assume the power to disqualify Gilani in violation of some earlier SC judgements. “When a matter is brought to the notice of the Speaker with reference to the disqualification of a member, he would have to apply his mind to the fact whether a question such as contemplated in Article 63(2) had arisen or not,” reads a 2005 judgement of the SC. The same judgement also points out that the Speaker “might be directed by the superior courts to make a reference where he had refused to do so.”

In another decision, delivered in 1995 in Pir Sabir Shah case, a 12-member SC bench declared, with a majority of seven to five, that the SC could not assume the jurisdiction of the Chief Election Commissioner as the final forum for resolving questions about the disqualification of the members of the parliament. This clearly means that the SC cannot order the ECP to just issue a parliamentarian’s disqualification notification without it having heard his or her case. By rejecting the option to order the Speaker to send the reference to the Commission and then allowing the ECP to carry out its own proceedings, the SC has left itself open to the criticism that it is transgressing its constitutionally-prescribed institutional limits.

This is, however, not the first time that the judiciary has seemingly intruded the domains of other institutions of the state in recent times. In the so-called PCO judges case, for instance, the SC found it necessary to substitute the powers of the SJC with its own by sending sitting judges home without a hearing at the SJC, thus acting contrary to the principle of natural justice that no one is to be condemned unheard.

The same trend manifested itself when the SC told the parliament to revise the process for the appointment of judges in superior courts, as given in the much celebrated 18th Amendment. Before the Amendment provided for two-tier mechanism for the appointment of judges – involving both the judiciary and parliament – appointments in superior courts were a closed-door affair with the CJ’s opinion being binding. Through its decisions, the court reversed the new scheme to put all power back in the hands of the judges, generally, and the CJ, in particular, a practice disliked and criticised worldwide.

Across the world, with a few exceptions, neither judicial appointments nor judicial accountability is in the hands of the judges. Former Australian judge Michael Kirby, well known for his remarkable contribution to the theoretical development of judicial independence, has argued that the executive and the legislature should have a role in the appointment and removal of judges. In an article titled Appointments to Final National Courts – Lessons from Charles Darwin, he wrote, “The provision for a democratic component to be included in the appointment of judges … has a doctrinal and political, as well as an historical, justification.”

The judiciary has also interfered in the executive’s domain on a number of occasions. For instance, in a petition filed by Fazal Kareem Butt, who sought an assurance from the federal government that it would not remove Chief of Army Staff General Ashfaq Parvez Kayani and Ahmed Shuja Pasha, former director general of the Inter-Services Intelligence, the court told the Attorney General to submit in writing an assurance from the federal government that it has no such plan.

Markandey Katju, a former judge of the Indian Supreme Court and a keen observer of Pakistani courts and their judgements, noted in a recent article carried in The Hindu newspaper, that judicial restraint by Pakistani judges is necessary “because, of the three organs of the state (legislature, executive and judiciary), it is only the judiciary which can determine the limits of jurisdiction of all the three organs.” He argues that “this great power must, therefore, be exercised by the judiciary with the utmost humility and self-restraint, otherwise the delicate balance of power in the constitution will be upset and there will be chaos”.

Ominous tidings

The third notable and relevant case heard in June is that of the report submitted by the memo probe commission. It was in the news around the same time Arsalan’s case was. In the memo case, as in many others such as Pakistan Steel Mills case, Reko Diq case, rental power plants case and other cases of corruption, the apex court had set up inquiry commissions and/or issued directions and time frames for inquiries.

For starters, it may be recalled that the mandate of the memo commission was “to ascertain the origin, authenticity and purpose of creating/drafting of Memo for delivering it to Chairman of the US Joint Chiefs of Staff Admiral Mike Mullen.” Clearly, the commission was not supposed to give a finding under Article 5 of the Constitution by determining anyone’s loyalty to the state. The commission failed to examine Husain Haqqani,Pakistan’s former ambassador toWashington, despite his repeated requests for examination through video link, a facility granted to Mansoor Ijaz, an American businessman and another respondent in the case. Yet, it not only concluded that the unsigned memo was authentic and authored by Haqqani but, going far beyond its mandate, also held him guilty for “acts of disloyalty” to Pakistan. Passing moral judgements without incriminating evidence can only damage reputations, both of individuals as well as the institutions they represent or have represented, but it certainly does not serve the cause of the rule of the law and justice.

That the SC has also been suspending those members of parliament that hold dual nationality, without referring their cases to parliament and the ECP, is another worrying development for anyone who cares about democracy and constitutionalism in Pakistan. This leaves the door wide open for anyone to accuse any member of parliament under article 63(1)(g), for example, of propagating any opinion, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or for acts which defame or bring into ridicule the armed forces. The judiciary can then take suo moto notice of those accusations, wielding the nuclear option to cull ‘undesirable’ elements from parliament. It is such serious prospects that have led Katju to remark that the SC has “gone berserk”.

Asad Jamal is a lawyer based in Lahore