Looming judicial tyranny

Yousaf Raza Gilani is gone. The incumbent PPP is discussing his replacement. Whoever succeeds Gilani still runs the risk of being subjected to the same pressures from the judiciary as Gilani faced, and which eventually ended in his ignominious departure, not at the hands of the people or their elected representatives, which is the norm in all parliamentary democracies, but at the hands of an activist judiciary that has opened itself up in the process to grave criticism. For the benefit of our readers, let us retrace some of the steps and developments that led to this denouement.

The National Reconciliation Ordinance (NRO) was essentially a political deal between Musharraf and the PPP led at that time by the late Benazir Bhutto. It gave relief to over 8,000 people affected by charges of corruption and other misdemeanours, of whom only about 80 were politicians. While the Supreme Court (SC) struck it down on the strict constitutional/legal criterion of being discriminatory, and ordered all closed cases of the beneficiaries to be reopened, its subsequent focus seemed to be on just one of those beneficiaries: President Asif Ali Zardari. Gilani took his stand on the basis of Article 248 of the constitution, which lays down that the president enjoys immunity so long as he is in office. This is a principle that is the bedrock of every constitution known to man. Take the example of French former president Sarkozy. After losing the presidential election, his immunity extended one month after leaving office, according to the French constitution. As soon as that grace period expired, Sarkozy is being hauled over the coals in various cases, including the murky Agosta submarine affair that involves a Pakistan angle. The SC saw fit in its wisdom to ignore all this constitutional edifice despite the argument being presented that President Zardari could be acted against in the Cotecna case after he leaves office. Instead, the SC suggested that if ‘someone’ claimed immunity, he must apply for it to the court (while Article 248 leaves no or little room for ambiguity). The government appeared reluctant to subject itself to an ‘interpretation’ of Article 248 that could open new cans of worms for it, hence its reluctance to pursue the immunity matter in all the proceedings. The SC ordered the chief executive, then Prime Minister Gilani, to reopen the Swiss case despite presidential immunity and the reluctance of the Swiss judicial authorities themselves to reopen the case in the absence of fresh substantive evidence, those being their judicial rules. The insistence despite all these facts by the SC indicated to some circles that some extraneous factor may have crept into these judicial proceedings. Be that as it may, the first casualty of this jurisprudence is a unanimously elected prime minister at the hands of the judiciary. And there is no telling whether he will be the last. It may be noticed in passing that the reluctance of Gilani to file an appeal against his contempt conviction suggests a lack of confidence in the impartiality of the court. This is a serious development with implications for the future.

The separation of powers enshrined in the constitution is a reflection of the best practice and constitutional structure from world experience. The framers of the US constitution were clear that individuals or groups could not be relied upon to exercise restraint on the basis of good intentions, therefore checks and balances and the separation of powers was necessary. Every institution therefore is enjoined by this schema to remain within its boundaries and not encroach on other institutions’ turf. Unfortunately, the restored superior judiciary’s activism, unrestrained in some instances by the time honoured principle of judicial restraint, is deleterious for the respect and dignity of the judiciary itself since it opens up the judiciary to debate and controversy. The SC’s overruling the Speaker of the National Assembly can be considered a weakening of the principle that parliament is supreme. In fact, the essence of the verdict against the Speaker’s finding is to declare, at least in the sphere of the issues raised by the case, that parliament’s supremacy is subject to the will, not of the people, but of the judiciary. This is a dangerous chink in the wall of separation of powers construct. Since there is no higher judicial forum than the SC, its verdicts acquire permanence (we may recall the shelf life of the doctrine of necessity to illustrate the point). The US Supreme Court declared: “We are not final because we are infallible. We are infallible because we are final.” Hidden in that message is the thought that if the judiciary does not judiciously impose restraint on itself, the direction in which things may head would alarmingly resemble judicial tyranny.

http://www.dailytimes.com.pk/default.asp?page=20126\21\story_21-6-2012_pg3_1

COMMENT : One suo motu too many — Tausif Kamal

Whenever some of our preconceived myths are shattered by a stark, unyielding and yet truthful reality, we tend to revert to denial and a refusal to face up to the facts as they are

The Supreme Court’s short order in the Arsalan Iftikhar case absolving the Honourable Chief Justice (CJ) without any investigation or examination of any evidence in the underlying imbroglio is premature. It is in fact contradicted by the Supreme Court’s own statement in this order: “…the Supreme Court (SC)…cannot judge the guilt or innocence of the parties without evidence or trial…” So how is this ruling not applicable to the CJ, who is so intertwined in this scandal being the father of one of the main suspects, and whose judicial power is at the heart of this corruption scandal?

This is in way to imply that the CJ is guilty but there cannot be an exemption from inquiry and investigation along with other participants and witnesses, for possible criminal violations based just on mere words of one of the parties. Who is Malik Riaz to give a clean bill of health to the CJ? It is strange that the SC is relying on the good word of Malik Riaz whom the former considers to be an accused fit to be prosecuted for some serious criminal offences under Pakistan’s criminal laws.

To contend that the media is maligning the judiciary by highlighting this scandal is to blame the messenger and not the message. Let us not be sidetracked, for now at least, by corruption in the media, which no doubt prevails, but which is less important than the imperative of our judiciary to have an unassailable reputation and an image above reproach. Conducting a thorough probe or inquiry of all those allegedly involved, including the Honourable CJ, will clear rather than tarnish the judiciary’s reputation and remove the dark clouds hanging over our most esteemed institution.

The nation has a right to know answers to such vital questions as how long the CJ knew about his son’s involvement with Malik Riaz and how many meetings the CJ had with Malik Riaz before the matter was seized through a suo motu action. The only other acceptable alternative to such an inquiry would be for the CJ to quit honourably in the larger interests of the judiciary and the country.

Lately, it appears that the rule of law in our land has been supplanted by a rule, by a surfeit of suo motu suits. Although in the sou motu matter of the CJ’s son and Malik Riaz, it is a case of one suo motu too many: the one that backfired, and the one that might come to haunt the judiciary for years to come.

Whether dwelling on issues of purely executive governance (sugar pricing, highway bypasses, bureaucratic postings and transfers, etc), or of separation of legislative powers (Speaker’s parliamentary rulings, disqualification of assembly members, etc), or of admissions and adjudication of petitions (lack of legal standing and subject-matter jurisdiction in the memo case, usurpation of powers of the executive branch in the contempt case, etc), the misuse of the original jurisdiction by the judiciary has been whimsical and arbitrary.

Far from strengthening the rule of law in our country, this judicial adventurism under the cover of Article 184 (3) suo motu jurisdiction has created a climate of political instability in the country. It has undermined the law-enforcing and prosecutorial institutions, increased the cost of doing business with Pakistan by millions of dollars, and above all, diverted the judiciary from performing its basic constitutional function of deciding thousands of regular cases that are languishing before the apex court on appeal. It is about time we discarded the anomalous, overreaching Article 184 (3) in the dustbin of history and thus join the other democratic nations of the world in matters of judicial oversight.

Our knee-jerk reaction to this alleged corruption and blackmail scandal the moment it unfolded in the media seems to indicate the prevalence of a national psychosis or a mindset of paranoia, delusion and denial — reminiscent of the lugubrious, conspiratorial days of 9/11 and May 2 incidents. It seems that whenever some of our preconceived myths are shattered by a stark, unyielding and yet truthful reality, we tend to revert to denial and a refusal to face up to the facts as they are. In the case of the 9/11 attacks, our myth that all Muslims believe and adhere to the peaceful precepts of Islam, and in the case of the Osama bin Laden raid, our myth of invincibility of our armed forces were shattered and laid bare. As we all know, our preferred mode of coping with these setbacks was to spin a web of conspiracy theories.

If the current national gridlock does bring down the edifice of democracy once again it would be the fault of our three institutions: the army, because of its running the country’s foreign and security policy; the government, because of its inept, non-transparent and ineffective performance, and the judiciary, because of its vengeful, overarching adjudication, creating roadblocks in political governance.

Concerning our superior judiciary, we have created and embedded in our minds an illusion of cool, incorruptible, super judiciary that is beyond mendacious politics, mundane temptation and inveterate ambition. As soon as this high-flying myth came crashing down to reality with this corruption case, we reacted with, what else, conspiracy theories. Unless and until we stop believing in fairytales, in the last bastions of hope that Ayub will save us, that Zia will save us, that Bhutto will save us, that the army will save us, and now that the judiciary will save us, we will continue to be hugely disappointed and doomed to live perennially in these parlous times with one setback after another.

We alone can save the country and ourselves.

The writer is a JD, Attorney at Law in Houston, USA and can be reached at Tausifkamal@hotmail.com

http://www.dailytimes.com.pk/default.asp?page=20126\20\story_20-6-2012_pg3_6

I always felt that Gillani was misguided and wrongly advised by his legal counsels and Attorney General. Heavens would not fall down if a letter is addressed to Swiss authorities afresh and at the same time it is pointed out to them that Mr. Zardari, one of the parties in the pending litigation in Swiss Courts (if it is still pending) is now President of Pakistan who according to the Pakistan Constitution enjoys absolute immunity from any criminal proceedings and also according to international law is protected by the principle of sovereign immunity. Generally it is a settled position of international law as emphatically clarified in the recent Germany v. Italy (Greece Intervening)decision (3 February 2012) of the International Court of Justice that sovereign immunity of a State is always a procedural matter to be taken into account at the very initial step of any criminal or civil proceedings involving that State and has to be respected; consequently a Head of State would certainly enjoy that sovereign immunity, more so if the Constitution of that State of which he is the Head, expressly grants him absolute immunity. I don’t think a letter with such express clarification of the absolute immunity enjoyed by the President of Pakistan would be shoved aside lightly and the Swiss authorities would proceed with the case against Zardari even in that event. As for the other accused, I don’t think one should stop any proceedings against them and certainly if moneys are laundered and deposited in Swiss havens, Pakistan State has every right and duty to claim and get back those to its own custody on behalf of its people. I HAVE ALREADY MADE IT CLEAR THAT I STRONGLY CONDEMN THE VIRTUAL JUDICIAL COUP TO OUST GILLANI, WHICH IS NOT WARRANTED BY ANY PRINCIPLE OF CONSTITUTIONAL JURISPRUDENCE. POWER CORRUPTS… AXIOM HAS PROVED ITSELF EVEN IN REGARD TO THE PAKISTANI SUPERIOR JUDICIARY, ESPECIALLY ITS PRESENT CHIEF JUSTICE.