Judges behaving badly: how Pakistan’s Supreme Court is undermining democracy -by Aqil Shah (Foreign Affairs)

Editor’s Note: The following article originally published in the Foreign Affairs Journal encapsulates the negative and unconstitutional role played by the Judiciary in Pakistan.  Readers should also bear in mind that this is the same Judiciary that has freed self-confessed mass murdering Jihadi terrorists.  Aqil Shah very correctly exposes the Pro-Military Establishment tilt of the present judiciary – in stark contrast to prominent pro-establishment mouthpieces like Najam Sethi, Ansar Abbasi, Hamid Mir and Kamran Khan.  These “journalists”, in line with their established policy of both subtle and brazen misrepresentation, dishonestly present this Judiciary as anti-establishment.

On June 19, Pakistan’s Supreme Court charged the country’s prime minister, Yousaf Raza Gilani, with contempt, disqualifying him from being a member of parliament and consequently unseating him from power. Gilani’s crime? He refused to revive a money laundering investigation against his boss, President Asif Ali Zardari, who technically enjoys immunity from prosecution while in office. According to the country’s constitution, only the election commission and the parliament itself have such authority. By simple fact, then, the Pakistani judiciary just pulled off a coup.

The timing was particularly suspicious. The Supreme Court’s decision came on the heels of a bribery scandal that involved Arsalan Iftikhar, the son of the chief justice, Iftikhar Chaudhry. And because Iftikhar’s accuser was Malik Riaz Hussain, a politically connected real estate tycoon with ties to the president, some have argued that the court sacked Gilani as revenge.

Some in the Pakistani opposition have applauded the move, arguing that judicial intervention is the only way to deal with the corruption of Zardari and his party. In their view, the judges’ soft coup was far less insidious than those led by generals in the past, which have invariably led to full-blown authoritarian rule. But as Pakistan heads into an election year, the aggressive move has left the state’s democratic foundations weakened, its judiciary less credible, and its military more powerful.

To be sure, the development serves as only another chapter in an ongoing saga. For years, the Supreme Court and the ruling Pakistan People’s Party (PPP) have been at odds over the National Reconciliation Ordinance (NRO), an amnesty law instituted in 2007 by Pakistan’s then president, General Pervez Musharraf, as part of a U.S.-brokered power-sharing deal with Benazir Bhutto, who was the PPP’s leader in exile. In return for the government’s withdrawal of corruption charges against Bhutto and Zardari, her husband, the party agreed to support Musharraf’s re-election bid in October 2007.

But soon after Musharraf announced the charges’ withdrawal, the Supreme Court, led by Chaudhry, suspended the NRO. Suspecting that the court had also made plans to rule his re-election bid unconstitutional if he stayed in military uniform, Musharraf suspended the constitution, imposed emergency rule, and sacked Chaudhry for the second time in a year. Chaudhry and 50 other judges who refused to take an oath of loyalty to Musharraf were put under house arrest.

In response, the country’s bar associations, activists, political party workers, journalists, and ordinary citizens took to the streets. Bhutto was assassinated while leaving a rally at the end of December, and her party sailed to victory in elections held two months later.

One of the new government’s first actions was to order the judges’ release. But, fearful of Chaudhry’s opposition to the NRO, the PPP leadership was not keen to restore him to his former seat. After another protest march, during which the country’s top lawyers and members of the opposition Pakistan Muslim League-N (PML-N) threatened to lay siege to the parliament, the PPP reinstated Chaudhry in March 2009. Six months later, the Supreme Court, again led by Chaudhry, struck down the NRO and ordered the government to reopen the graft cases against Zardari.

Keen to wipe the stain of colluding with the military off the court, Chaudhry has pledged not to subvert democracy. (After all, he was a member of the court that legalized Musharraf’s 1999 military coup.) But by liberally using his powers to protect the “public interest,” he has now done just that: curtailed democracy and undermined the rule of law.

In the last few years, Chaudhry and his colleagues have injected themselves into almost every notable political and policy dispute, invariably deciding against the PPP government. Ruling on law and order problems, regulating municipal service delivery, and overturning bureaucratic appointments and promotions, the court has gone well beyond its mandate to interpret the constitution. Some of these interventions have addressed genuine public grievances, but many have undercut the day-to-day functions of government.

In April 2011, the Supreme Court effectively slashed parliament’s newly acquired authority to approve the appointment of judges. Since, it has overturned the parliamentary appointments committee’s decisions. And right after the Supreme Court ousted Gilani, a local court issued arrest warrants for Makhdoom Shahabuddin, the party’s nominee for prime minister in the upcoming election, for his alleged involvement in a drug import scandal during his tenure as health minister.

It was no coincidence that the court was acting on a request from the army-controlled Anti-Narcotics Force. Indeed, the Supreme Court’s thinly veiled hostility toward the civilian government stands in sharp contrast to the deference it shows the country’s military. A prime example was the so-called Memogate scandal in the fall of 2011. Memogate centered on allegations made by Mansoor Ijaz, a U.S. businessman of Pakistani origin. He alleged that Husain Haqqani, Pakistan’s ambassador to the United States and a Zardari confidant, had sought his assistance in drafting and sending a memo to Admiral Michael Mullen, the U.S. chair of the Joint Chiefs of Staff. The memo was a plea for U.S. intervention to avert an imminent military coup.

In return, the PPP government allegedly promised to appoint a U.S.-friendly national security team, stop Pakistan’s intelligence services from supporting terror groups, and comply with International Atomic Energy Agency standards in its nuclear weapons program.

The PPP government denied any involvement with the memo, and Haqqani lost his job. Acting on a petition filed by the PML-N leader Nawaz Sharif, the Supreme Court, heeding the advice of the chiefs of the army and the Inter-Services Intelligence, or ISI, hastily formed a judicial commission to investigate. The commission ignored Ijaz’s damning accusation that the military was, in fact, plotting to overthrow the civilian government around the time the document was written. Then it denied Haqqani the right to testify from abroad, despite his pleas that he feared for his life if he returned to Pakistan. But the judges allowed Ijaz to do so. The commission’s final report absolved the PPP of any wrongdoing, but it confirmed the authenticity of the memo and accused Haqqani of disloyalty.

Some observers criticized the commission’s transparently one-sided proceedings, in which commission members readily accepted questionable evidence provided by Ijaz while throwing Haqqani’s evidence out on technical grounds. Haqqani’s counsel, Asma Jahangir, a human rights activist, boycotted the commission, noting that she had no confidence in its fairness.

At the same time, the Supreme Court has continued some investigations against the ISI. These include an old corruption case and ongoing missing-persons investigations that date back to the time of Musharraf. It has ordered the ISI to produce suspects it has detained in court and to either charge them legally or let them go. The Frontier Corps’ “kill and dump” operations against Baluch nationalists have similarly come under scrutiny. But senior military officers, including the ISI chief and the inspector general of the Frontier Corps, continue to evade the Court, not fearing that they will be charged with contempt as Gilani was.

Ultimately, the judiciary’s ostensible slant toward the military and certain right-wing parties could strangle whatever is left of democracy in Pakistan. The judiciary validated each of the previous military takeovers in the country’s history. Now, with a soft coup under their belts, the judges have created another bad precedent. They have legitimized one more non-democratic method of changing governments.

With the Zardari government continually fighting for its survival, resolving Pakistan’s pressing problems takes a back seat once again. Chronic power shortages have crippled industry, alienated ordinary Pakistanis from the government, and fomented social unrest. Instability could further erode the state’s resolve to tackle terrorism, which would further complicate the normalization of its ties with the United States.

To play a positive role, the judges need to do their part in strengthening the Pakistani state by striking a better balance between judicial activism and restraint. In the tempting rush to teach the allegedly corrupt PPP government a lesson, many in Pakistan’s rowdy news media and opposition parties are egging the judiciary on. But pulling the carpet from under the government’s feet is not in anyone’s interest.

Instead of insisting that Gilani’s replacement, Prime Minister Raja Pervez Ashraf, reopen the corruption cases against President Zardari, the Supreme Court should let the democratic process continue until elections, which are set for the spring. Only if it tolerates and respects the mandate of the two other branches of government can the judiciary actually help make democracy the only game in town.

Source: Foreign Affairs



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