“The judge raj” in Pakistan is paving way for another military dictatorship

…Our lordships may be cautioned about the possibility that judicial activism sometimes runs the risk of intruding on turf strictly belonging in our constitutional scheme of things to other institutions of state. In the post-judiciary restoration era, the respect and confidence enjoyed by the superior judiciary must be safeguarded through judgments and steps that do not offer any hint of the expansion of judicial purview beyond what may affect in the long run its own dignity and respect. If not exercised with, and balanced by, the well known maxim of judicial restraint, the present scenario raises doubts in some minds whether judicial intervention in many matters may veer towards judicial dictation. Source

Here are three op-eds highlighting the pitfalls of selective justice against the PPP and judicial interference into executive affairs, by Asma Jahangir, Irfan Hussain and Nzir Naji:

Another aspect of the judgment
By Asma Jahangir
Saturday, 19 Dec, 2009

The NRO case, Dr Mubashar Hasan and others versus the federation, has once again stirred a hornet’s nest.

There is thunderous applause for bringing the accused plunderers and criminals to justice and widespread speculation on the resignation of the president. Very little analysis is being done on the overall effect of the judgment itself.

While, the NRO can never be defended even on the plea of keeping the system intact, the Supreme Court judgment has wider political implications. It may not, in the long run, uproot corruption from Pakistan but will make the apex court highly controversial.

Witch-hunts, rather than the impartial administration of justice, will keep the public amused. The norms of justice will be judged by the level of humiliation meted out to the wrongdoers, rather than strengthening institutions capable of protecting the rights of the people.

There is no doubt that impunity for corruption and violence under the cover of politics and religion has demoralised the people, fragmented society and taken several lives. It needs to be addressed but through consistency, without applying different standards, and by scrupulously respecting the dichotomy of powers within statecraft. In this respect the fine lines of the judgment do not bode well.

The lawyers’ movement and indeed the judiciary itself has often lamented that the theory of separation of powers between the judiciary, the legislature and the executive has not been respected. The NRO judgment has disturbed the equilibrium by creating an imbalance in favour of the judiciary.

The judgment has also sanctified the constitutional provisions of a dictator that placed a sword over the heads of the parliamentarians. Moreover, it has used the principle of ‘closed and past transactions’ selectively.

It is not easy to comprehend the logic of the Supreme Court that in a previous judgment it went beyond its jurisdiction to grant life to ordinances — including the NRO — protected by Musharraf’s emergency to give an opportunity to parliament to enact them into law.

If the NRO was violative of fundamental rights and illegal ab initio, then whether the parliament enacted it or not it would have eventually been struck down. By affording parliament an opportunity to own up to the NRO appears to be a jeering gesture unbecoming of judicial propriety.

The NRO judgment has struck down the law also for being violative of Article 62(f), which requires a member of parliament to be, ‘Sagacious, righteous and non-profligate and honest and ameen’.

Hence, the bench will now judge the moral standing of parliamentarians on these stringent standards set by the notorious Zia regime. This article of the constitution has always been considered undemocratic and a tool to keep members of parliament insecure.

If parliamentarians, who also go through the rigorous test of contesting elections in the public domain, are to be subjected to such exacting moral standards then the scrutiny of judges should be higher still.

After all, judges are selected purely on the value of their integrity and skills. Judges who erred in the past seek understanding on the plea that they subsequently suffered and have made amends. Should others also not be given the same opportunity to turn over a new leaf? How will sagacity and non-profligate behaviour be judged?

Apart from Dr Mubashar Hasan, not even the petitioners of the NRO case are likely to pass the strenuous test laid down in Article 62 of the constitution. This could well beg the question whether it is wise for those in glass houses to be pelting stones.The judgment goes much further. It has assumed a monitoring rather than a supervisory role over NAB cases. In India, the supreme court directly interfered in the Gujarat massacre but it did not make monitoring cells within the superior courts.

Is it the function of the superior courts to sanctify the infamous NAB ordinance, the mechanism itself and to restructure it with people of their liking? It is true that the public has greater trust in the judiciary than in any other institution of the state, but that neither justifies encroachment on the powers of the executive or legislature nor does it assist in keeping an impartial image of the judiciary.

The long-term effects of the judgment could also be counter-productive; perpetrators are often viewed as victims if justice is not applied in an even-handed manner and if administered in undue haste with overwhelming zeal. It is therefore best to let the various intuitions of state take up their respective responsibilities because eventually it is the people who are the final arbiters of everyone’s performance.

On the slippery slope again
By Irfan Husain
Saturday, 19 Dec, 2009

Over the years, many court decisions have shaped Pakistan’s fate, usually for the worse. Is this how history will view the latest judicial twist? Or will the Supreme Court decision striking down the National Reconciliation Ordinance be seen as the historic judgment that eradicated corruption?

From all the jubilation being witnessed in the country following the announcement of the ruling, it would seem that all our troubles are now over, and that we can look forward to a golden era of transparency and good governance. But some cynics like me are not holding their breath: instead, we are nervously waiting for the fallout.

During the lawyers’ movement for the reinstatement of Chief Justice Iftikhar Chaudhry, Nawaz Sharif declared at a televised rally: ‘Once the chief justice is restored, I swear upon God that all of Pakistan’s problems will be solved!’ (‘Jub chief justice sahib wapis apne odhay pay lag jayengai, to mein Khuda ki qasam katha hoon kay Pakistan kay saray maslay hal ho jain gay!’

Well, the chief justice was restored some months ago, and as I was away for some of this time, I can be excused for not noticing that all our problems had been solved. But as far as I can tell, we are still struggling with loadshedding; prices have not suddenly come down; and above all, the jihadis seem to have missed Nawaz Sharif’s speech altogether because their terrorist activities have increased, if anything.

So who are the winners and the losers of this judgment? Obviously, the 8,000 or so people on the National Accountability Bureau list will now have to face a revival of the corruption charges that had been lying moribund for up to 20 years. The PPP government will be reeling from a reactivation of charges against several of its top leaders, including Asif Zardari.

The MQM, the biggest beneficiary of the NRO, won’t really feel the heat as the party supremo is now a UK citizen, and is living comfortably in London. Everybody else in the party, as we all know, is expendable. Does the fact that the MQM refused to support the government in voting on the NRO in the National Assembly indicate that a deal had been cut between the party and the establishment? In the event, the strategy worked in cutting the ground from under the government’s feet.

A big winner would seem to be Nawaz Sharif as his main rival now finds himself slowly twisting in the wind. However, this gain could be temporary as any destabilisation of the nascent democratic system could well rebound against him.

The higher judiciary now is widely respected for its activism, pronouncing on everything from the privatisation policy to sugar prices. Where defunct and discredited politicians once made a beeline for GHQ to find sympathetic ears, they now file constitutional petitions.

Whatever else happens, one thing is for sure, and that is our legal community will be assured of work for many years to come. Given the thousands of people who will need bail before arrest, and then subsequent legal advice and representation, our lawyers will be gainfully employed for a long time. However, given their efforts and sacrifices during their movement to restore the chief justice, they surely deserve all the breaks they can get.

More than individuals, we should be looking at the impact of the judgment on the system. Musharraf, for sordid reasons of political survival, and a desperate need to find a political ally to bail him out of his self-created mess, issued the NRO in 2007. This allowed the political process to move forward.

We can all criticise the moral bankruptcy of the NRO till the cows come home. Nobody can seriously deny the proposition that those accused of corruption should be tried, and if guilty, be punished. The problem, as usual, lies in the implementation of this principle. These cases have been languishing in courts for years, with some of them dating back 20 years. If our courts could not reach a verdict in all this time, what makes us expect an overnight transformation in their efficiency?

Anybody who has visited our lower courts will understand the serious defects in our judicial system. Inundated with a huge backlog of cases, saddled with archaic and arcane procedures, and riddled with corruption themselves, it is hard to see how these tribunals will be able to hand out swift judgments. And even if they do, our elaborate system of appeals will ensure that these cases remain subjudice for the duration of any normal lifespan.

Those of us who seriously believe that this judgment will eradicate corruption are in for a rude shock. Bribery and venality are the lifeblood of a creaking system, and without the kickback and the greased palm, our entire bloated bureaucracy would come to a grinding halt.

However, instead of addressing the problems of our deeply rooted institutionalised corruption, our prosecutors and investigators are invariably turned loose on political opponents as soon as governments change. As the establishment tends to view the sins of the PPP much more seriously than it does those of other parties, many more of its leaders figure on these witch-hunts. Thus, Nawaz Sharif not only escaped a death sentence, he spent the last few years in comfortable exile in Saudi Arabia.

None of this is to suggest that corrupt leaders should not undergo due process. But by the same token, the process should be transparent and across the board. In this case, since the vast majority of those named and shamed on the NAB list are from Sindh, are we being asked to believe that politicians and bureaucrats from the much larger Punjab province are as clean as the driven snow? Or are Sindhi leaders of the PPP government being victimised yet again?

One would have thought that at a time when our army is finally fighting Pakistan’s enemies in Fata, the government should be focused on this battle for survival. Instead it is being harassed and distracted. In wartime, it is traditional for the opposition to close ranks with the government in the national interest. What we are witnessing the steady unravelling of the consensus that had been so painstakingly built up just a short while ago.

But there is still time to pull back from the brink. Nawaz Sharif needs to show clearly and unequivocally that he and his party stand by the PPP, and will not accept any kind of extra-constitutional deviation. Otherwise, we will be on the slippery slope of military rule yet again.

Nazir Naji: Hissa darion ka tanaza



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