Pak: Judicial independence or playing to the gallery?

In Pakistan, tussle for supremacy between the government and the Army continues unabated. Nawaz Sharif might have stepped down as the Prime Minister after being disqualified by the Supreme Court in a corruption case but he is no mood to retreat into seclusion, come hell or high water. That he still calls the shot is evident from the fact that he got Shahid Khaqan Abbasi appointed as PM and Khwaja Muhammad Asif, a trenchant Army critic, as the foreign minister. The Pakistani Army is known to pull the levers of power directly or indirectly. The irony is that the apex court helped the Army in its nefarious design.

No Prime Minister could complete his/her full term, thanks to the coup by the Army or the dismissal by the President. But now, the judiciary, which was known for cringing before the government, specially the ones headed by the Army, has become aggressive all of a sudden in the last one decade and has been dismissing governments.  The apparent independence of the Supreme Court is, in fact, a façade to legalise what the Army did not want to do directly. The Army had been gunning for then PM Nawaz Sharif who was going hammer and tongs to establish the civilian control over it which it resisted and detested. By a judicial fiat, Sharif was shown the door. The Supreme Court disqualified him from holding public office in the Panama Papers case. The judgment brought Sharif’s third term as PM to an unceremonious end, barely one year before the scheduled general elections which would have seen him become the first Pakistani PM to complete a full five-year term.

On April 20 last, a five-member bench delivered a fractured 3-2 verdict with Justices Asif Saeed Khan Khosa and Gulzar Ahmed dissenting. The majority held that there was “insufficient evidence” to disqualify him at that stage but ordered setting up of a joint team to investigate the graft allegations against his family. However, Justice Khosa wanted Sharif removed even without preliminary investigation and made thirteen damning remarks against him.

He began his judgement with a quote from The Godfather: “The popular 1969 novel The Godfather by Mario Puzo recounted the violent tale of a mafia family and the epigraph selected by the author was fascinating: Behind every great fortune there is a crime. Balzac” He excoriated Sharif for adducing no plausible explanation for amassing huge wealth and added, “It is ironical and a sheer coincidence that the present case revolves around that very sentence attributed to Balzac.”

The joint investigation team constituted by the Supreme Court comprised two Army officers — one from the Military Intelligence and another from the Inter-Services Intelligence. Justice Khosa is the second senior-most judge in the SC and he needs to keep the Army in good humour in order to become Chief Justice.

In Pakistan, the struggle for the independence of the judiciary has been co-terminus with the struggle for the democracy itself. Pakistan’s history is replete with judges being sacked or forced to resign mostly by the military government. When Gen. Zia-ul-Haq usurped power, judges were asked to take an oath of allegiance to Chief Martial law Administrator and Chief of Army Staff, and judges meekly complied. Justice Dorab Patel of the Supreme Court was the only shining exception who preferred to resign than to submit to the mortification. However, the clock turned back and a history of sort was created in April 2007 with the sacking of an elected prime minster by the Supreme Court. Chief Justice Iftikhar Mohammed Chaudhry went on a hyper-active mode after his reinstatement on the post following huge public uproar over his dismissal on March 8, 2007 by then President Gen. Pervez Musharraf.

On April 26, 2007, a seven-judge bench of the Supreme Court had held then Prime Minister Yousuf Raza Gilani guilty of contempt of court for having defied its directive to write to Swiss authorities asking them to open corruption cases against President Asif Ali Zardari.

On June 19, a three-judge bench headed by Chief Justice Chaudhry disqualified Gilani and declared the post of PM vacant since that date.

It was nothing short of a judicial coup which introduced instability and turmoil in the Pak polity which has hardly seen any stability. Gilani was slated to create history by becoming the first PM to have completed his term and bring in stability in the failed state but ironically he was ousted by a judicial fiat, not by any military coup. Besides, Pakistan has a consistent record of its PMs being dismissed by the President. Even Farooq Ahmad Khan Leghari dismissed the government of his own leader Benazir Bhutto after being convinced about her and her husband Asif Ali Zardari’s involvement in the death of Murtaza Bhutto and other economic scandals.

The question is as to what is the jurisdiction of the court. Can it go on enlarging its jurisdiction like this negating democracy? Was it just a co-incidence that Chief Justice Chaudhry had gone belligerent and rather berserk when his son Dr Arsalan Chaudhry has been publicly accused of accepting a bribe of '34 crore from an industrialist, Riyaz Malik, for getting favourable orders by his father in the cases pending before the Supreme Court. Justice Chaudhry did not have a chequered past either. He was one of the few judges to put a judicial stamp on Gen. Musharraf’s coup. He was elevated by the Musharraf government from the Baloch high court when 11 Supreme Court judges put in their papers against Musharraf. However, later, Justice Chaudhry rekindled people’s hope by taking suo moto action for the release of missing people and was the first CJ to have issued notices to the intelligence agencies for giving details of disappeared persons.

The judiciary in Pakistan has always been in the control of rulers, and the struggle for its independence has been on the national agenda since Maulvi Tameezuddin case against the dismissal of the Constituent Assembly by Governor-General Ghulam Mohammed.

Its Supreme Court is the only court in the world to have given cover to military rulers under its novel doctrine of necessity. In 1958, Chief Justice Muhammad Munir upheld the military takeover of the government by Gen. Ayub Khan under a novel doctrine of revolutionary legality that where revolution is successful it satisfies the test of efficacy and creates a basic law creating facts. Again, the usurpation of power by Gen. Yahya Khan, who declared martial law on April 1, 1969, was challenged in the Asma Jilani case, and this time though the Supreme Court (1972) rejected the doctrine of revolutionary legality, it invented the doctrine of necessity holding that ignoring the necessity would lead to disastrous consequences to the body politic. The Supreme Court also upheld the coup led by Gen. Pervez Musharraf under the doctrine of necessity. Now it has sacked PM Sharif to please the Army.

The writer is a senior TV journalist and author