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Posts Tagged ‘judicial activism’

Folly, not clash of institutions

30 Jan

By Ayaz Amir for The News, appeared on Friday Jan 29, 2010

Clash of institutions has a grand ring to it, suggestive of Cromwell's Roundheads battling the monarchy; or the children of the French Revolution slaughtering the French nobility; or Lenin's Bolsheviks storming the Winter Palace. 

 

Would that this were the state of affairs in Pakistan. We could then expect something creative, a higher synthesis, to emerge from all this disorder. But we are not that lucky. This is less clash of institutions than elephants on parade: large egos on the march, the vanity of mediocrity on display — dressed up, as Pakistani mediocrity mostly is, in the colours of national salvation. 

 

If Prime Minister Yousuf Raza Gilani is refusing to put a pistol to his head, if he is refusing to become another Farooq Leghari, and if the National Assembly (including the PML-N) is with him on the matter of not committing collective suicide, media samurais — of whom there are not a few and who deserve the title of Ustad-e-Fidayeen better than any Taliban — are dismayed, and almost on the verge of hysteria, because the triumph of prudence is the last thing they wish to celebrate. 

 

For six months and more these laptop warriors have been spreading confusion and alarm, conning a public which they take to be gullible into thinking that political change is around the corner. But their deadlines having not been met, not once but repeatedly, it is not surprising if there is an air of increasing desperation about their battle-cries, which they expect the public to take as serious analysis. If their frantic outpourings are serious analysis, comic relief acquires a different meaning. 

 

Two slogans have proved the most enduring in our history: Islam and corruption. Every humbug in authority, especially when besieged and short of real answers to our many problems, has raised the banner of Islam, none more loudly than Gen Ziaul Haq, who would be prince if ever there was a kingdom dedicated wholesale to the worship of hypocrisy. The more of a mess we have made of our Constitution the greater the reliance on Islamic references — not for acting upon them, perish the thought, as for the sacred rites of lip-service and window-dressing. 

 

To much the same use has been put the slogan of corruption. In every military coup, from Ayub to Musharraf, in every civilian coup, whether carried out by Ghulam Ishaq Khan or Farooq Leghari, the eradication of corruption has figured as the foremost priority. Ironic, then, is it not, that after every forced transition, every turn of the screw, the one thing to explode was corruption? So much for the good intentions, and so much for the heaven they led to. 

 

At present too the idea of change — that change is necessary if Pakistan is to survive — has been hyped up relentlessly around the theme of corruption. Foremost in this campaign, although keeping themselves well hidden in the shadows, have been the self-appointed guardians of our ideological frontiers. They may have been less than adept at guarding our geographical frontiers — the ones visible on a map — but the ramparts of ideology, in their own definition of this term, they continue to guard jealously.

 

. . . .  it is salutary to remember that the judges did not restore democracy. It was democracy which restored them. 

 

The laptop warriors may be doing their own thing, for in their ranks are to be found the odd knight of good faith genuinely taken in by all the talk about corruption, but the wrecking game they are embarked upon fits in neatly with the agenda of the ideological warriors who are just not comfortable with a civilian dispensation. 

 

Angels from heaven can descend tomorrow and minister to the needs of the Islamic Republic, but the ideological warriors and the definers of strategic depth — one and the same thing — won't be satisfied. Why do they suffer the Constitution? Why do they endure civilian trappings? If they are so impatient with democracy they should make Myanmar their model and once and for all have done with the charade of democracy. 

 

It is a measure of the success of the forces out to alter the political landscape that in just two years since the revival of democracy, they have managed to instil into the minds of the middle class — which for all its presumed sophistication is the first to fall for such gambits — that Pakistan's number one problem is corruption. If this bull is caught by the horns salvation is at hand. If not, the Republic faces ruin and destruction. 

 

The lawyers' movement did much good in that it helped weaken the foundations of dictatorship, although I must hasten to add that by itself it wasn't strong enough to defeat that dictatorship. That outcome had to await the fruition of the political process as signified by the holding of elections and the assumption of office by a political government. Even so, the lawyers' movement was an inspiring sight while it lasted. To a nation caught in the throes of depression it gave a glimpse of what resolve and sustained commitment could achieve. 

 

But there have been some negative effects too. One is the outbreak of a species of arrogance amongst lawyers finding vent in violent and yahoo behaviour. The frequency of such outbursts is serving to dim the shine of the lawyers' movement, the heroes of yesterday allowing themselves to be seen in a poor light. The second is the rise of a strange kind of innocence which seems to be divorced from any understanding of Pakistan's tempestuous past. 

 

This innocence finds expression in the belief that the movement and the subsequent restoration of the judges were turning points in our history. In this somewhat exalted view of things, the restored judges have been cast in heroic colours, indeed likened to prophets of a new dawn in which justice and the rule of law will always prevail. It was no doubt in a like spirit of exaltation that Justice Jawwad Khawaja in his added note to the detailed judgement of My Lord the Chief Justice in the NRO case stated that the last three years in their momentousness "… can be accorded the same historical significance as the events of 1947… and those of 1971…" 

 

Jinnah was the hero of 1947 and Yahya the anti-hero of 1971. While Musharraf can be made to run a close parallel to Yahya, whom should we take as the Jinnah of the last three years? In any event, this rendering of history can be faulted on another count. On our side of the divide, Jinnah was the sole architect of 1947. Lawyers and judges have not been the sole shapers of the outcome of the last three years. They played a part and often a heroic part in those events but not the sole part. 

 

And it is salutary to remember that the judges did not restore democracy. It was democracy which restored them. As we go on about a new dawn this sequence of events should not be forgotten. 

 

Furthermore, as laptop warriors foam at the mouth and serve up their beliefs and desires as news and analysis, faith that a new dawn is really at hand will be immeasurably strengthened if the guardians of justice take up two pressing challenges: (1) apologise in the clearest of terms, with a due sense of contrition, for the oath taken by them at the altar of Musharraf's PCO in 2000, and if some amongst their present lordships validated Musharraf's coup in the Zafar Ali Shah judgment, an apology for that too; and (2) take up instantly Air Marshal Asghar Khan's petition about the Mehran Bank scandal and the money distributed by the ISI in the 1990 elections. 

 

If there is any hesitation on both or either of these counts — and there can be very understandable reasons for exercising caution — would it be too much to ask that discretion be the better part of valour in other things as well? 

 

The inadequacy of the political class may be great and may be enough to drive one to despair. But if there is one lesson of our history it is that there is no alternative to democracy. It is within its fold and bosom that we must seek its reform and correction, and the salvation of the Pakistani nation. 

 
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The Freely Political Judiciary and the NRO Fiasco

26 Dec

 

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.

 

 
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Two Courts, Why Not?

10 Sep

Published on: May 19, 2008

As the judicial imbroglio thickens the air between two coalition partners, the speculative analyses and predictions keep creeping through the op-ed columns and current affairs talk shows on umpteen TV channels in Pakistan. Whatever the analysts say, however serenity and reason PPP leadership tries to bring to the negotiating table, the fact remains that it’s not the dearth of solutions that is leading to uncertainty in reinstatement of judges, its lack of political commitment to do so. The solutions that have came up so far range from an executive order to a constitutional amendment or the act of Parliament. Considering the significant moves on the part of political movers and shakers, it is becoming all the more necessary to reach an upshot as soon as possible. The more time is spent on proving that every proposed way out has more cons than pros, the easier it would be for the anti democratic forces to draw the conclusion that no solution is possible for this political riddle.
The recent proposal, which was instantly denied by the Prime Minister, was that of establishment of two supreme courts. The idea perceptibly seems to be mala fide and an attempt to appease the lawyer / civil society pressure and placate a presidency that is shamelessly being lactated by the world powers. But at the same time, it deserves a serious thinking and analysis. The two Supreme Courts would mean a judicial system that allows the power of constitutional review to concentrate within a single judicial body. This proposal has a history of being in force in various countries of Western Europe alongside new democracies of Eastern Europe; and has displayed a widely accepted version of constitutional protection and control.
The presence of Constitutional courts gives rise to the anomalies of overlapping jurisdiction of Federal Constitutional Court and the supreme civil court, their absence critically contradicts with the principles of sovereignty of parliament and judicial review especially in democracies like Pakistan and India whose constitution remains a major source of this paradox. In India, where no Constitutional Court exists, the constitution has successfully fought back to be the supreme law of the land; in Pakistan, it still is a political instrument that every regime uses to consolidate its power. This fundamental difference in political cultures of both the countries makes them incomparable as far as judicial system is concerned. The emerging democracies in the European world, on the other hand, might offer an attractive judicial package to be replicated here in the backdrop of fierce battle between the state and the judiciary in Pakistan over last one year – a case much similar to postwar Germany when Bundesverfassungsgericht (Federal Constitutional Court) was established.
The German Constitutional Court had to encounter five branches of specialized courts already well established in the pre-Natzi tradition of German judiciary. The specialized courts had to overcome the failure of their immediate past, whereas, the Constitutional Court was offered a considerable chance of success by the climate of postwar reform. If in Pakistan, the existing Supreme Court takes on the jurisdiction of civil, criminal and administrative cases and a new Federal Constitutional Court is established with the mandate of constitutional interpretation, it is expected to correspond well with the democratic tradition of separation of power and centrality of constitution.
It should, however, be kept in mind that developing a commonly accepted model of cohabitation at the supreme judicial level will be extremely difficult and would require stronger political commitment from parliament, the existing Supreme Court as well as from other power players. The answer to fundamental question of distribution of judicial power between the two courts would largely depend on the intent of establishment of such bi-faceted judicial system that divorces American system of diffused judicial review. If the sole objective is to keep one single individual from heading the apex constitutional court, and limiting his power to civil and criminal suits, the new system may lack vision and design to sustain and might not produce popularly desired results.
The apprehensions of some experts, as reported in media over last few days, about the establishment of Constitutional Court in Pakistan weigh much lesser compared to the positives of it. If established on the following lines, the system can, by design, respond to most of the apprehensions:
1. The Federal Constitutional Court (FCC) should be structurally independent with respect to the Executive Branch and to the Supreme Court
2. The FCC should be mandated to develop the concept of direct applicability of the Constitution (including its guarantees of fundamental rights) and to impose that concept on other segments of the judicial branch.
3. Procedures of the constitutional complaints should be such designed that they should extend the applicability of complaints to all the situation involving conflicts with fundamental rights of individual liberty
4. The FCC, while preserving the last word in the wake of a controversy, should not claim a monopoly over application of the Constitution but, rather, should act as a coordinator of that process.
5. The FCC should be vested with the competence to review ordinary statutes and other legal regulations as well as to annul them in case of unconstitutionality or nonconformity with any international instrument to which Pakistan is a party. Such decisions of the FCC should be universally binding i.e., also binding on all other courts, including Supreme Court.
6. Each court (Higher and Supreme) while resolving an individual case should consider whether the statutory provisions based on which the judgment will be give, are in conformity of the constitution or not. In case of a doubt expressed by the complainant or the judge herself about the constitutionality of such provision, the judge should refer that issue to the FCC as a legal question. The decision of FCC should be binding on the other courts to be applied to the case(s).
7. The FCC’s composition should be such that all the provinces and other federating units are equally represented.
While smoothening public opinion on any set of judicial solutions, we need to keep in mind that present crisis has a hidden opportunity – the opportunity of making our judicial system more relevant to a parliamentary democracy and constitutionalism. Change is sometimes uneasy, but it surely bears the fruit of development. And the key to change is . . . let go of fear!
 
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