Pakistan’s ‘Supreme’ Quagmire

*Published on Borderline Green.

After spending 4 years, 2 months and 26 days in office as Pakistan’s 24th Prime Minister, Yousaf Raza Gilani was removed from power on 19th June 2012 by an order of the Supreme Court that proved to be crescendo in the on-going stand-off between the government and judiciary.

The background to the case lay in the overturning of the controversial National Reconciliation Ordinance in 2009 by the Supreme Court. The Musharraf-issued NRO  basically provided a cover of insulation from being tried and convicted for  politicians and bureaucrats by offering them amnesty in all cases of any crime or corruption that they were involved in or may have committed.

Its dissolution meant that all the cases of the NRO Beneficiaries were now revived; on top of which was President Zardari who faced the Swiss Cases worth $60 milliom. In relation to this, the Supreme Court directed the Prime Minister to write a letter to the Swiss Authorities to commence with the proceedings associated with their reopening; which the PM refused citing the presidential immunity Zardari enjoyed from prosecution. Gilani’s defiance of the order was construed as contempt of court and his disqualification was the result.

The discourse that took Pakistan after the verdict of Gilani’s disqualification and subsequent dismissal, centered not on disagreement about whether cases of corruption against Zardari should be reinstated but on the judiciary’s conduct; which appears to be increasingly engaging in judicial activism, inevitably encroaching upon the parliamentary and political space.

The binaries created by this discourse, on one hand lead to those who support the judiciary’s decisions and those who disapprove of the direction they feel the judiciary has chosen.

Pakistan’s history of chaos and disorder consigned the establishment of accountability to the bin; giving rise to a culture where exploitation, abuse of authority, lawlessness, chaos and a states within the state have thrived.

The country’s two principal organizations: the National Accountability Bureau and the Federal Investigative Agency with the respective aims of ‘the responsibility of elimination of corruption through a holistic approach of awareness, prevention and enforcement’and ‘to serve and assist the nation to get justice through an effective law enforcement’ have been pervaded by a systematic politicization; disabling their organizational and regulative capacity and impeding a proper pursuit of accomplishing the basis of their formation by proffering a virtual immunity and amnesty to those in positions of power from being made answerable and treated accordingly.

In these circumstances, the susceptibility of a certain void of regulatory apparatus for ensuring the accountability of those in government or in power is natural and visible.

After the success of the momentous Movement for the Restoration of the Judiciary, the judiciary emerged to fill this void; an institution with the capability and focus to bring all within the loop (or noose) of justice.

And as news of scandals, scams and stories of personal aggrandizement of this PPP Government and its members kept stacking upon each other; public frustration and desperation waxed.

What followed is a thumping public thirst for accountability, which some see to be slaked by the judiciary’s recent course of actively taking on the government head on and thus, has invited a swarm of petitions to be filed at the Supreme Court that target what is perceived as governmental maladministration and misrule. 

This is where the strand of contention ascends into sight: is the judiciary the right institution for making the government answerable?

Tausif Kamal, an Attorney at Law in Houston pens in his article in Daily Times:

‘The basic function of our SC is to hear, adjudicate and interpret the law on actual cases or disputes between two adversaries that comes before it on appeal. Such appellate jurisdiction and application of law is the court’s primary duty. Its original jurisdiction should be rare and limited to hearing cases between two provinces, or where one province and/or the federal government is a party.’

It is clear, that the primary function of the judiciary isn’t holding the government responsible or keeping the ‘state’s excesses’ in check. The term ‘excesses of the state’ being broad enough to vary and differ between people. Is it one that is defined by the dictates of the law, the popularity and moral standing of the government with the people? And who defines it? How and when is it subject to the suo moto? About which, to quote Tausif Kamal again :

‘Article 184 (3), which incredibly bestows on the apex court almost limitless and unbridled powers of original jurisdiction. Enabling it to adjudicate on its own whim and fancy any matter under the sun in the name of ‘public importance’ or ‘fundamental rights’, it gives rise to the overuse of suo motu.’

To many, Gilani’s removal has been a ‘judicial coup’ with the judiciary greatly overstepping its domain. After all, the three main means of dismissing an individual from the Prime Minister’s secretariat are laid through the Parliament, Election Commission and the people itself which can be availed by the motions of a vote of no-confidence, disqualification and voting in the next elections, respectively.

The debate that the ‘historic’ decision of the Supreme Court has stirred has also provided fodder for debate that revolves around the lengths that the Supreme Court can stride about to oversee the government’s dealings and matters, the suo moto as an instrument for witting or unwitting immersion in judicial activism of sorts (Despite international praise for Pakistan’s higher judiciary, international calls have also been made to form a distinct, fair criteria that guides the use of suo moto) and in current instances of the government’s refusal to obey the judicial orders (regardless of the reasons); the extent that the Lords of the Supreme Court can go to rein in its deviance from compliance and the removal of an elected Prime Minister as a  of the Supreme Court.

Dr. Mohamed Taqi writes:

‘The post-March 2009 judiciary arrived at the helm with a sense of entitlement and populist vigour, which it felt it had earned for inspiring and leading its own restoration movement. Frequent references, in several recent verdicts, by several judges to the Supreme Court of Pakistan to being “the people’s court” rather than a constitutional court indicated that the justices were operating under the influence of what they perceived was popular support received during the restoration movement. The restored judiciary had come to the bench after contracting the messiah complex! The misplaced assumption of being the new saviors has put the judiciary in a unique situation where it has on occasion been at odds with both the civilians and the military and appears to be acting not just as a proxy, at least in its own mind, but a power player.’

By proclaiming itself to be the ‘people’s court’, it is reckoned that it intends to be a representative of the public sentiment rather than, or more than, an exponent and upholder of the law and legal system because to be both is mutually exclusive.

To become the ’true representatives’ of the people is the sole prerogative of the Parliament and the penchant for making assertions of being the ‘real representatives’ of the people by state pillars such as the media and judiciary contravenes to their distinguishable reasons of existence.

Their separate roles, institutional duties and professional ethics command that they remain detached from such populism and matters invalidating their ambition to advocate the people’s will and view. The judiciary and Supreme Court in particular are required to be objective and egalitarian.

The judiciary and dispensation of justice is not governed by vox populi but by the laws and constitution.

By assuming or borrowing the charge of another instituition or organ Pakistan will only be mired into a din of further confusion and conflict in which any possibility of accountability and transparency will be the only casualties; and polarise the state organs that need to be brought together in agreement at present, more than ever, for a stable, democratically-viable Pakistan.

As Babar Sattar says in his must-read article ‘Legal Eye: On Picking Sides’ on this very issue:

‘We need an independent judiciary, a functional parliament, a performing executive, a strong army, an uncensored media and a vibrant civil society. None of this is expendable if Pakistan is to thrive.’

Any espousal of the functions of another institution, for whatever lofty reason and possible short-term relief, hamstring that institution to evolve, shed its failings and ability to develop to overcome its defunctness and shortcomings.

The settlement to this ‘supreme’ quagmire of Pakistan, rests in the exclusive practice of the segregate authority that the state organs are vested with, while strictly dwelling within the confines of their legal, constitutional turfs.

Upon ending, a reported remark by the American Chief Justice Roberts as the US Supreme Court upheld Obama’s Healthcare Law, would sum up the case in Pakistan well:

“It is not our job to protect the people from the consequences of their political choices.”

~ Hafsa Khawaja