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The lost years?



By Imtiaz Gul

The Friday Times, December 13, 2013


Asserting its power under Justice Iftikhar Chaudhry, the Supreme Court raised hopes as well as concerns

Unusual circumstances evoke unusual responses. This is what began playing out once Chief Justice Iftikhar Chaudhry declined to sing General Musharraf’s song on March 9, 2007. This marked an epochal moment for Pakistan’s thus far tainted and tame judiciary. Chaudhry’s defiance galvanized most of Pakistan and led to his eventual restoration on March 16, 2009. This happened with the direct intervention of the then army chief General Ashfaq Kayani because of President Asif Zardari’s disinclination to restore all 60 judges.

The restoration imbued senior judges with an unparalleled sense of vindication and put them on a course that won them appreciation, invited skepticism and at times drew scorn. Increasingly, the judges realized that only by asserting themselves like never before could they count as part of Pakistan’s muddled political power matrix. This created an environment of several pull and push factors that dominated the conduct of the court under Justice Iftikhar Chaudhry.

Personal likes and dislikes or power politics apart, the Supreme Court’s role under Chaudhry must be analyzed in the context of successive rulers’ (both military and civilian) propensity to the arbitrary exercise of, or abuse of, power. We must also keep in mind that most lawyers in Pakistan – even those with iconic stature – are unscrupulous and gullible either to monetary gains or to political dividends. (I recall conversations with two very very prominent lawyers who had defended controversial people by saying: we did so because the president/prime minister had asked us to do so).

Essentially, most of the suo motu notices reflected a challenge to the ruling elite’s hegemony over political economy and tools of social influence for self-preservation. The ultimate annulment of the controversial National Reconciliation Order (NRO) 2007 – a tool that General Musharraf employed to pardon “crimes” of Benazir Bhutto and scores of others – was also a reflection of the quest for setting right the elite-favoring wrongs.

As many as 118 suo motu notices that Chaudhry and his colleagues took under Article 184(3) of the Constitution (the article provides that the Supreme Court under its original jurisdiction can pronounce declaratory judgment) underscore this new-found sense of power which the judges began emphatically pronouncing.

This article served as the biggest pull factor that weighed heavily on all and sundry – from the prime minister to ministers to bureaucrats to transporters and to armed forces. Most judges – so it seemed – thought it fit to issue notices on anything considered detrimental to the public interest. As many 41 suo motu cases are still pending.

Often, however, the suo motu notices smacked of populist appeal – rape cases, accidents because of faulty gas cylinders, gas and electricity prices, and privatization (Pakistan Steel Mills) and gave way to the perception that the honourable judges were stretching their constitutional right to the extent of interference in the function of the executive.

Another pull factor that apparently drove the judges’ activism was the pressure coming from the religious right. Their judgments in the controversial Red Mosque Case reflected the concerned judges’ inability to look at the issue beyond simple human rights. Here the state was confronted with a band of people who had challenged the authority of the state in the heart of its administrative capital. Illegal occupation of state land and theft of utilities beside the presence presumably of Al Qaeda hardcore at the Mosque seemed to have remained hidden from the court’s view in the face of the hype and the mayhem that the media had then created. The orders for monetary and land compensation to the Mosque administrators , and the readiness to hear cases against General Musharraf for his crackdown on the Mosque reflected poor judgment of certain ground realities.

The judicial activism also generated a simultaneous bottom-up push by common people – most of whom feel helpless vis a vis a corrupt and tardy judicial and police system and instantly found in the Supreme Court a possible window for justice and relief; the court received as many as 187,754 human rights related petitions and the it disposed of almost 80 percent of them.

The unusual influx of human rights petitions – including of course those related to the enforced disappearances – clearly demonstrated citizens’ revived trust in the apex court.

One monumental achievement of the Court under Chief Justice Chaudhry has been the cases of missing persons and enforced disappearances. By coming down hard on the ISI, the Frontier Corps and the federal government, the court not only laid bare the brazenness of the agencies but most probably also laid down guidelines for such cases.

At times, however, the demands that the outgoing chief justice and others made of the agencies appeared in direct conflict with the way state institutions world over deal with threats posed by non-state actors.

In this particular case, the judges, one presumes, were fully aware of the lacunas in Pakistan’s judicial and police system that is largely the British era legacy. Theoretically these laws – as borne out by less than ten percent conviction rate – cannot convict even those who commit murder in broad daylight. Forget about terrorists and their supporters.

Justice Chaudhry and other colleagues would have probably done even a greater service had they somehow went for a drastic review of the Pakistan Penal Code, and made strong recommendations to the parliament for adapting investigation, interrogation, and prosecution procedures to the  Al-Qaeda-led terrorist challenge that the country faces. Instead, the apex court paid undue attention to people such as Maulana Aziz or the Memogate.

In its overzeal the court at times appeared as an arbiter of “moral sins” rather than as an adjudicator of crime (the notices to PEMRA on Indian and Turkish films and dramas being the case in point).

Under Justice Chaudhry, the “hot pursuit” of Asif Ali Zardari’s graft cases also not only  betrayed possible personal grudge (for Zardari’s reluctance to restore judges) but also made it look like frozen in the past. While nothing came out of those cases, Pakistan lost over four precious years of political governance. The graft cases simply had made most of the governmental machinery hostage as everybody in the power was trying to defend the president who also headed the ruling party.

Justice Chaudhry and his colleagues could have been more prospective in their conduct had they cracked down on the rusting and tardy legal system and advised on how to reform the police – on which the entire prosecution rests.  They did help in redefining the relationships among various arms of the government. They did challenge the mighty ruling elite and most importantly practically told the army establishment out of political economy. They did emerge as the beacon of hope for the majority and established the judiciary as probably the biggest barrier to the arbitrary use of power by the ruling elites. This has helped redefine Pakistan’s political economy.

Imtiaz Gul is the executive director of the independent Centre for Research and Security Studies, and the author of the recently released book Pakistan: Before and After, published by Roli Books, India

Email: imtiaz@crss.pk