The Freely Political Judiciary and the NRO Fiasco

 

This article has been contributed for Baaghi, by Ahmad Nadeem Gehla. Baaghi is grateful to him for a brilliant analysis.

A dictator in military uniform does not become ‘constitutional head of state’ even after getting a verdict of ‘constitutionality’ from a handpicked judiciary and approval from a rubber stamp parliament. Constitution of Islamic Republic of Pakistan, clearly states that a dictator who abrogates constitution along with judges and the parliamentarians who assist him are all guilty of high treason. The institutions which assisted a dictator as well as acts carried, by default remains unconstitutional unless approved by a duly elected parliament. Even after approval from a legitimate parliament, these acts might not satisfy the constitutional demands and remain as ‘political arrangements’.

Present Chief Justice was the member of Bench which validated the unconstitutional martial of General Pervez Musharaf in judgment of Supreme Court in Syed Zafar Ali Shah case. He subsequently was appointed as a Chief Justice by the same dictator.  Many of us participated in movement for restoration of Chief Justice and his reinstatement was a great landmark achieved by newborn civil society of Pakistan. Apart from the political success with his restoration as Chief Justice, his appointment as a judge of supreme Court when 11 judges refused to take oath under ‘Legal Frame Work Order (LFO)’ and subsequent oath as Chief Justice was and still remains unconstitutional, as he has yet not taken oath under constitution of Pakistan. His reinstatement at the best can be a ‘political arrangement’; it cannot be constitutional by any stretch of constitutional interpretation.

Liberal and left wing politicians in Pakistan have never been able to get justice from judiciary in Pakistan, especially when powerful military establishment remains on the opposite side. ‘Jihad Enterprise’ of notorious ‘mullah-military alliance’ closed doors for ousting dictator through political movement which  face the danger of being hijacked by religious extremist groups and turned in to civil war. We have witnessed that a dictator can stage a 12th May and suicide blasts as counter measures. The options available to politicians are of negotiations with dictators to finds a workable middle path for transition to democracy, end up in prisons without conclusion of trial by puppet judiciary or get deported and exiled.

Mian Nawaz Sharif’s return after eight years of exile from Saudi Arabia can serve as the best example of choices available to politicians. On his arrival, not a single of his supporters was able to break the security arrangements of police and reach airport to welcome their leader. His party leadership rushed to Supreme Court to get a ‘restraint order’ to prevent him being illegally deported.  He is the head of second biggest political party in country, even if he was an ordinary citizen, his detention and threat of deportation was an ‘urgent matter’ in legal terms, to be taken up by court.

Constitutional courts suspend procedures to take up such matters and there are precedents where judges passed orders on such issues in middle of night. Unfortunately the Supreme Court, headed by Chief Justice Iftakhar Muhammad Chaudhary after being restored first time, gave it a deaf ear. Mian Nawaz Sharif remained under detention at airport for several hours and was illegally deported from his own country by a dictator. What was the remedy available to Mian Nawaz Sharif to come back once again?

National Reconciliation Ordinance was issued by dictator Pervez Musharaf and was purely a political arrangement to withdraw politically motivated cases and facilitate the return of exile leaders. Withdrawal of cases is a recognized practice around the world where any state transforms from dictatorship to democracy. However, such arrangements are recognized being the ‘middle path’ for transition towards democracy and conflict resolution. There can be nothing more absurd than judging the ‘constitutionality’ of a law signed and issued by a dictator in uniform. As the dictator, being a party in such arrangements himself does not enjoy any legitimacy, these arrangements could not satisfy the constitutional criteria.

The NRO expired month before Supreme Court took it up for a judicial review and was not available as a law, the actions taken under that law became covered by doctrine of ‘past and closed transactions’. Only in case, President had promulgated it again after first expiry of 120 days, or Parliament has passed it in to a law, it would have been open for a judicial review. However Supreme Court decided to give it a new life for another 120 days in disregard of constitution, through the order passed in the petitions on PCO of 2007 and sent it to parliament for considering and vote. The order of SC was a clear violation of constitution as no court including SC has power to extend the time for a law which has already been expired.

During lawyer’s movement, we did not grant the power of legislation to ‘Chief Justice’ otherwise we would have follower the appeal of lawyer leaders and boycotted the election. The voluntary and unconstitutional legislation by SC and later striking down its own created law is the only precedent in legal and constitutional history of civilized world. While doing so, judiciary acted as ‘Judicial Messiah’ giving life to dead laws and later judged its constitutionality. This violation is nothing short than any dictator’s violation of constitution.

We have witnessed the extreme of ‘judicial biases’ in present formation of the ‘Bench’ of Supreme Court. This is important to remember that a decision by full court of Supreme Court in cases directly filed under constitutional jurisdiction closes every door of appeal. Those aggrieved can only file their appeals before ‘divine court’ even if the judgment doesn’t meet the standards of law and constitution and is biased. If it was a case decided by a larger bench of a High Court or minority view of a bench of SC, it does make sense. Composing such a bench in order to close all doors for those who are aggrieved, especially when President of the country is focus of proceedings leaves little doubt about Supreme Court playing a ‘political game’.

More than 200 lawyers, political workers and civil society activists gave their blood in lawyer’s movement. Off course, we did not struggle for a ‘Messiah’ but an institution. Although an overwhelming majority supported the restoration of Chief Justice, they participated in elections in much greater number despite the appeal of ‘lawyer leaders’ to boycott the elections of 2007. The record turnout in elections is a clear verdict of people that they are not looking for a messiah but wanted to judge and choose their leaders.

Although judiciary around the world observes a self imposed restrain in interfering into ‘political issues’, the situation in Pakistan had been opposite. We are witnessing same thing happening once again while judiciary is busy interfering in to ‘political questions’, its own functioning has changed little even after so many sacrifices. Public perception about judiciary in ‘Transparency International’ report for 2009 has put judiciary at the seventh most corrupt institution of the country. The head of lawyer’s movement and former President of SC Bar Association has expressed his appointment stating that ‘this is not the judiciary for which we struggled’.

When judiciary or military interferes in to political issues, it puts the institution against the will of people and people do react when their will is not respected. There can be nothing more shameful for institution of judiciary that whoever it convicts by them become qualified for highest offices of the country. When a handpicked judge of Pervez Musharaf convicted Yousaf Raza Gillani, the former Speaker of National Assembly, Asif Ali Zardari, present in court told the judge, “You have made him qualify for President of Pakistan”. When Gillani, who served five years in prison while judges were dancing on tunes of Pervez Musharaf, became Prime Minister, he released these judges from detention of the same dictator.  

Let us take case of Mian Nawaz Sharif who was removed and put in prison by General Pervez Musharaf. Supreme Court, including Justice Iftakhar Muhammad Chaudhary, not only validated the Martial Law but gave dictator the powers to amend the constitution. The same judiciary convicted Mian Nawaz Sharif for hijacking and corruption. On his return, people gave their verdict by giving government of biggest province of country to the party of that ‘hijacker’ and he is one of most popular leader of the country. On his initiative parliament is set to remove the changes from constitution which were introduced by Pervez Musharaf with ‘permission’ of judges.

Judiciary partnered in murder of ZA Bhutto and one of the judges who signed the verdict has confessed that it was a ‘judicial murder’. The people turned the grave of a ‘murder convict’ Bhutto, in to a shrine. Million visit his grave every year giving him a verdict of innocence and add in to shame for judges and generals. Benazir Bhutto was charged of corruption and made to rush from one court to other for years while millions marched for her chanting ‘Ya Allah Ya Rasool – Benazir Bekasoor’. People turned her death in to their own loss and even his worst rivals cried on her death, her party secured the highest vote in next elections.

Almost every provision of criminal laws was used against Asif Ali Zardari from corruption to terrorism and murderer charges. He was dragged from one court to other for eleven years while ‘judges of dictator’ sat over the trials for over a decade keeping him in a continuous imprisonment. In the first free election people put the same corrupt, terrorist and murderer in Presidential Palace with a two third majority. Even in bye elections his ticket holders won from Gilgat to Quetta. Dr. Ayesha Siddiqua, one of the supporter of restoration movement has expressed that ‘judgment will strengthen the military establishment and undermine democracy and weaken President’.

 Despite observing the restraint from interfering in to a political arrangement, while declaring NRO as unconstitutional, judiciary has once again decided to reopen these cases even after same exercise in futility for a decade. Each of such interference has historically proved another blow to already deteriorating institution.  Amazingly, Supreme Court ignored to pass any order against the ‘judges’ who did not conclud cases against President Zardari for a decade just to please a dictator and got favors in return. Asima Jahangir, UN Reporter for Human Rights and top supporter of judiciary restoration movement has declared the judgment to be delivered by a ‘jirga’ rather than a court of law.

Judicial activism can be a blessing and every sane person will support if courts take up issues of public interest. Unfortunately in Pakistan the trend is reverse; courts interfere in to popular and political issues while matters of public interest are pushed under the carpet. The politicians have been always a soft target for ‘dispensation of justice’ while mighty generals and judges all remain holy cows. While politicians get ‘speedy justice’, the case filed by Air Marshal Asghar Khan against the generals for misuses of public funds to form notorious right wing alliance IJI is pending in Supreme Court for twelve year without a verdict. In Asima Jahangir’s words, the order is ‘targeted justice’.

Supreme Court also announced in it short order to ‘judge’ all politicians under controversial Article 227 of Constitution which was inserted by a dictator to disqualify the liberal politicians. The law requires all politicians to be ‘righteous’ and is under review of parliamentary committee for striking down the constitutional classes inserted by a dictator. The dangerous power acquired by Supreme Court will give it a right to disqualify political leaders who does not offer five time prayers regularly and does not fast. Qazi Hussain Ahmad, head of Pro Taliban JI has announced to ‘implement’ SC judgments through street power and SC has not taken any action on his statement.

Every dictatorship in Pakistan was imposed in name of ‘accountability’ and ‘good governance’ and proved to be another disaster.  People do react when someone pretending to be a ‘Messiah’, disregards their mandate and rejects their political decision. When people had a chance, they brought back the same leaders who were ousted by ‘Messiah’. This behavior is not limited to Pakistani society alone, people in India, Philippine, Thailand, Malaysia and Bangladesh has reacted in similar manner. Judiciary lead government grilled politicians for two years while people voted same politicians back in government.

Corruption is a reality in developing world and particularly in Pakistani society. It can never be eradicated in one day or by once again inviting a ‘Messiah for a quick fix’. The continuation of democratic process strengthens institution and as process takes course, it eradicates corruption. Whenever an institution or a person has crossed the constitutional boundaries, it has weakened the institutions and paved ways for dictatorship.  While Human Rights Commission of Pakistan, liberal and democratic forces are strongly criticizing the judgment, ‘Pro-Taliban’ religious groups are celebrating the verdict.

The top lawyer leader and head of ‘lawyer’s movement has declared the judgment as been delivered after watching the ‘Talk Shows’ of pro Taliban private media. Many legal experts, civil society activists and human rights advocates are terming the Supreme Court’s intervention in to political decisions as revival of notorious ‘mullah-military-judges alliance’, to undermine democracy. IA Rehman, the Director of Human Rights Commission of Pakistan wrote, The people of Pakistan have every right to ask whether Ziaul Haq’s agenda has been revived”.

Apart from some revolutionary verses of Habib Jalib sung by ‘Lal Band’ during lawyer’s movement, the role of Supreme Court remains limited to constitutional boundaries. In democracy, only people can ‘judge’ their representative, any unconstitutional exercise will again fail. The Supreme Court was restored with sacrifices and is built on ‘people’s blood’ and bound to respect ‘people’s will’. If Supreme Court sides with establishment and derails democratic process in dreams of acquiring the powers of ‘Judicial Messiahs’, people who struggled for its restoration will surely hold it accountable.