The deterioration of judicial institutions which began with notorious judgment of Justice Munir touched its bottom when superior judiciary convicted ZA Bhutto – the elected Prime Minister of the country to death on directions of a dictator. One of the judges who signed the verdict has confessed that it was a ‘judicial murder’ and the case has since become a permanent source of shame and humiliation for the superior judiciary which turns in to embracement when cited before a court. The ‘puppets of establishment’ seated in court rooms, only loyal to rulers set new precedents of immorality and injustice with every passing day – as such, the justice has remained as an alien concept. In Pakistan, the dignity associated with being ‘Lordship’ suffered heavily when religious right wing judges handpicked by Military Dictator Zia-ul-Haq turned superior judiciary – the guardian of constitutional guarantees of people in to ‘slaughter house’ of justice. Superior judiciary became a tool for oppression in hands of a hypocrite dictator behind the veil of religion to victimize the journalists, left wing political workers, civil society activists and even progressive and liberal lawyers.
Whenever establishment overthrew the elected government in violation of constitution, these judges came forward to validate the unconstitutional actions and Mullah’s declared dictators as ‘holly warriors’. The notorious ‘Mullah-Military-Judges Alliance’ has been an effective weapon against the ‘will of the people’ – to oust the elected governments. The government of Benazir Bhutto was terminated twice by powerful intelligence agencies and military establishment while judiciary validated these acts under the notorious ‘doctrine of necessity’. Establishment which wanted to oust the liberal forces from politics started a campaign to malign the name of Benazir Bhutto, her husband Asif Ali Zardari and workers of her Pakistan People’s Party. False cases were registered against her and her family and same judiciary which killed her father also convicted her on directions of then Prime Minister Nawaz Sharaif. When the tapes of conservations between then head of notorious ‘National Accountability Bureau’ of Nawaz Sharif and the Judges of superior courts who convicted her became public, the three judges had to resign.
In 2001, Pervez Musharaf took over the power in a military coup, throwing an elected Prime Minister in prison. These ‘judicial brigade’ of military establishment not only provided the coup a ‘judicial cover’ but also granted dictator the power to single handedly amends the constitution. Once loyal to Nawaz Sharif, the same judiciary convicted him for life imprisonment and confiscated his property to prove their loyalty with the new master. However, these ‘custodian of constitution’ does not reacted when the dictator unconstitutionally pardon and exiled the convicted Nawaz Sharif and his family to Saudi Arabia on interference of head of a ‘friendly state’. Benazir Bhutto was not allowed to enter the country and her husband remained in prison for eleven long years in false cases which Nawaz Sharif and former Chairman of NAB Saifur Rehman, both have admitted to be registered on pressure of establishment. In 2007, Pervez Musharaf agreed to issue ‘National Reconciliation Ordinance’ to withdraw all politically motivated cases against leadership of political parties to facilitate their return to country. This is a recognized practice when any state has returned to democracy from dictatorship; withdrawal of the politically motivated cases is always the first step.
When Pervez Musharaf fired and detained the judges of superior courts, the Lawyer’s community reacted strongly on action of dictator but was never able to gather more than few thousand people. Soon civil society, media and political parties joined the protests. Pakistan People’s Party which always has been a victim of judiciary lost lives of more than 200 workers during protests and countless including present Prime Minister went to prison. Despite all pressure and protests they were unable to get a single judge released from detention or restored. As elected government took over the power, Prime Minister’s first order was for release of these detained judges, who kept him in prison for five years to please the dictator. When Asif Ali Zardari ousted Pervez Musharaf from presidential palace and got unanimously elected President, establishment decided to put a check on him in form of a right wing supported hostile Chief Justice who was angry for not getting restored.
The establishment started feeling uncomfortable when US offered $11 billion aid package for social development and conditioned military assistance with strengthening of democratic institutions and elimination of extremists. Supreme court of Pakistan took up the National reconciliation Ordinance for ‘judicial review’ to undermine the democratic government. Dr. Ayisha Sidddaqa, a scholar and civil society activist who was one of the most vocal supporters for restoration of judiciary declared the decision as, “But if a question is asked about whether the decision signifies the strengthening of the democratic process and civilian institutions, the answer must be in the negative. Since the perception regarding the decision is that it strengthens the armed forces and their ability to manipulate political stakeholders, it is not possible to see a major shift in the balance of power. The decision does coincide with the growing anger of the security establishment against the civilian government for becoming ‘too big for its boots.’ Given the friction between Islamabad and GHQ over the Kerry-Lugar law and other issues, the military is certainly coincidentally, if nothing else, a prime beneficiary of the Supreme Court decision. A humiliated president has lesser possibilities with which to tackle a rival institution”.
This has to be remembered that the law expired months earlier and Supreme Court has no power to give an ordinance a new life and send to parliament, only president can do so. Secondly the NRO law was purely a political arrangement and judiciary around the world avoids interfering in to political decisions. The exception taken in case of Richard Nixon for judicial review of political decisions where ‘demands for a fair trial and criminal justice outweighed the political question doctrine’ as ruled by a US Federal Court in is clearly missing in present exercise as President Zardari was available for trial under detention for over a decade without getting justice. Questions are also being raised as to why the Supreme Court ignored to pass orders against those who negotiated and issued the NRO law at the first place, present Army Chief being the chief negotiator as then head of ISI. This is also being argued that while President Zardari spent eleven years in prison as under trial accused being main target of proceedings, why no actions has been ordered against the judges of superior courts who failed to conclude his cases in such a long time on political pressure. Surprisingly, the allegations of misuse of office by Chief Justice himself to secure a government posting for his son has not been sent to NAB for investigation.
Since taking over power President Zardari has ordered action against Taliban militants making right wing Taliban apologists and spy agencies unhappy, who considers Taliban as an ‘asset’. Right wing religious parties like Jamat Islamami and PTI of Imran Khan, who both openly support Taliban militants, are celebrating the ‘historic judgment’. Qazi Hussein Ahmad, the head of pro Taliban JI has announced to ‘implement’ the order of Supreme Court through street power. Asima Jahangir, the United Nation’s Special Reporter on Human Rights, Chairperson of Human rights Commission of Pakistan and the most prominent supporter of restoration of judiciary, while commenting on judgment of SC declared it , “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”. While Supreme Court has ignored the doctrine of ‘past and closed transaction’ in deciding NRO, the same has not been applied to unconstitutional acts of mighty generals and judges of Superior Judiciary themselves. Also, the judgment delivered by the full strength of Supreme Court has closed all doors for appeal from aggrieved parties; most of them were condemned without a chance of being heard.
The case filed by former Air marshal Asghar Khan with proofs of misuse of public funds by ‘mighty generals’ to form notorious right wing political alliance IJI against PPP is pending without decision before same Supreme Court for past eighteen years. The legal experts are terming the judgment as ‘targeted justice’ on behest of right wing Mullah’s and military establishment. The confrontation started by pro-establishment and Taliban sympathizers backed judiciary is meant to pave way for rouge generals to overthrow the democratic government. The military establishment will then be able to manipulate the action against extremists, providing safe heavens to ‘Good Taliban’ to be used as an asset for purpose of notorious ‘strategic depth’ in Afghanistan. They would once again be able to direct national resources to develop ‘Defense Housing Societies’ and ‘Judges Colonies’, rather than providing education, healthcare and clean water facilities of 160 million deprived. We have to remember that in 1998, the richest four Generals in world were from Pakistan, who profited from ‘jihad enterprise’ of ‘mullah-military-judges’ trio on cost of democracy and civil liberties. A former ISI official has challenged the presidential immunity and his eligibility as not being ‘righteous’ under Article 62, 63 of Constitution. They judiciary is set to determine his ‘righteousness’ in defiance of ‘people’s will’, as the fact that President has been elected with a two third majority.
Judiciary is clearly playing the role of ‘hired assassin’ for establishment to paralyze the government in defiance of constitutional boundaries. The right wing Mullah’s, who are never able to get hold of power through popular vote are eying the ‘power sharing’ with military establishment and thus will able to implement ‘divine laws’. Their partner judiciary has already signaled to ‘judge’ all politicians under Articles 62, 63 of constitution, inserted by a dictator which requires the parliamentarians to be ‘righteous’. This is the time for liberal and democratic political parties in parliament to act and strike down the controversial Articles 62, 63 of Constitution inserted by a dictator along with other discriminatory provisions and make judges answerable before parliament. In democracy it is only ‘people’ who judge their representatives through the ballot and parliament should have the power to scrutinize the appointment and conduct of judges, amendment in constitution is need of time to prevent judicial coups against democratic governments. This is the time for civil society, liberal, democratic and progressive forces to join hand to save democratic process. If ‘Mullah-Military-Judges alliance’ is able to derail democracy, in name of ‘targeted accountability’ and ‘righteousness’ by ousting the liberal politicians, the Pakistan of future might be little different from Afghanistan of today. The situation is also a wakeup call for international community to support the democratic process in Pakistan, before greedy ‘mullah-military-judges alliance’ turns it in to another Somalia or Afghanistan.