Legislation Vs. Judiciary: Civil Services Mentor Magazine August 2012

The Supreme Court of Pakistan on 19 June 2012, debarred Pakistan Prime Minister Yusuf Raja Gilani from his office. The court’s ruling also disqualified Gilani as the member of the National Assembly, the lower house of the Majlis-e-Shoora (Parliament). Gilani was convicted for violating the article 63(1) (g) (contempt of court) of the constitution of Pakistan on 26 April 2012 by the Supreme Court. The court’s verdict came following Gilani’s refusal to probe cases of corruption against Pakistan President Asif Ali Zardari. The three-judge Bench of the apex Pakistani court headed by Chief Justice Iftikhar Muhammad Chaudhry held Gilani, Pakistan’s longest serving Prime Minister, ineligible for the post since 26 April 2012 when the court awarded him a symbolic 30-second sentence for the contempt of court. The court also instructed the President to take necessary measures under the Constitution to ensure continuation of the democratic process through the parliamentary system of government.

The Supreme Court of Pakistan had instructed the Prime Minster Yusuf Raja Gilani to ask Swiss authorities to reopen cases of multi-million dollar graft cases against the President Asif Ali Zardari, which the Prime Minister refused to follow, citing constitutional immunity enjoyed by the president as the reason. Asif Ali Zardari was accused of laundering an estimated 12 million dollar, received as the kickback by the companies looking for customs inspection contracts, to his Swiss Bank account, when his wife Benazir Ali Bhutto was the Prime Minister of the country during 1990s. After this country’s thenmilitary dictator deposed the Supreme Court chief justice in 2007, a boisterous movement of protesting lawyers took to the streets and ushered in the return of democracy. Now that same court may be poised to bring about a premature end to Pakistan’s elected government. Since its December judgment striking down an amnesty that shielded President Asif Ali Zardari and other officials from old criminal allegations, the top court has pressed the government on corruption, in particular a dated moneylaundering case against Zardari. The standoff has cemented the Supreme Court’s position as a central player in Pakistan’s nascent democracy. But it has also highlighted questions about the solidity of that system.

From the time Pervez Musharraf suspended him and placed him under house arrest in March 2007, through his first restoration later that year and the second in 2009, to present times, Chief Justice Iftikhar Chaudhary has come to be seen by ordinary Pakistanis as the only hope for their country. Under his leadership, the Supreme Court has been nothing less than activist, calling politicians, government, the military, intelligence services, police, all of them to account. From Pakistan’s relations with the U.S. to the country’s budget, there is no area of public life that the higher judiciary has spared in the last five years, no national ill that it has not commented on. Some have seen in its actions and pronouncements a grudge against the Pakistan People’s Party government, especially against President Asif Ali Zardari. Now and then, the court’s actions have given reason for such a conclusion, especially when it overturned the graft cases amnesty granted by General Musharraf that benefited Mr. Zardari. Still, the Chief Justice has defied easy labelling, such as “promilitary”, “pro-Establishment” or “pro-Opposition”. What is more easily apparent, though, is that he enjoys public adulation and affection of the kind previously unheard of in the country.

Not surprising then that when the country’s biggest property tycoon claimed he had bribed Mr. Chaudhary’s son to win favourable judgments in cases relating to him being heard in the Supreme Court, the allegation came to be seen as part of a political campaign to unseat the Chief Justice. If that is really the case, Mr. Chaudhary has won this battle: he first took suo motu notice of the allegations against his son, then recused himself from the case; the bench hearing the case has now ordered the government to use all available instruments to investigate the allegations and act as appropriate. Most importantly, in the time-frame covered by the allegations, the Court gave no verdicts favourable to the businessman. The controversy is bound to have implications for the turf war that has roiled Pakistan over the last few months. The Supreme Court and the Executive have been locked in a struggle to redefine the limits of their powers. Before the court are petitions against the Speaker’s decision not to disqualify the Prime Minister on the grounds of his conviction in the now famous contempt case. The conflict has already sapped the energy of the nation, and diverted virtually all attention from day to day governance, but if it leads to stronger institutions, Pakistan, and its nascent democracy can only
benefit.

MERITS

Iftikhar Muhammad Chaudhry, former chief justice of the Supreme Court of Pakistan, had said that the judiciary can intervene if the institutions trespass their constitutional limits. Addressing a function in the Supreme Court on the occasion of commencement of the new judicial year, he said that the judiciary had taken oath to protect the constitution. Therefore, to check unconstitutional steps was within the obligations of the judiciary, he said. He also said that the executive did not seem satisfied with the judicial verdicts against its unconstitutional acts. Another important point in the chief justice’s speech was the issue of corruption in the lower courts and he said that corruption could not be controlled in spite of increasing salaries and other perks of the lower judges.

If the speech of the chief justice is reviewed, three important points would come to the front. One, which determining the constitutional limits of the institutions is within the power of the judiciary. Two, the executive is not satisfied with the judicial decisions. Three, corruption is still prevalent in the subordinate courts.

All these three matters are interconnected and the judiciary is at their center. The chief justice is correct that fulfilling of responsibility by the judges is essential for ensuring peace and stability, strengthening national integrity, and improving administrative affairs. When, during the Second World War, a dreadful picture of the country’s situation was drawn before former British Prime Minister Winston Churchill said that if the courts delivered justice, there was nothing to worry.

GOING OVERBOARD

Section 248(2) of the Pakistani Constitution states: “No criminal proceedings whatsoever shall be instituted or continued against the President or Governor in any Court during his term of office.” The language of the above provision is clear, and it is a settled principle of interpretation that when the language of a provision is clear, the court should not twist or amend its language in the garb of interpretation, but read it as it is. Therefore it is hard to understand how proceedings on corruption charges (which are clearly of a criminal nature) can be instituted or continued against the Pakistani President. Moreover, how can the court remove a Prime Minister? This is unheard of in a democracy. The Prime Minister holds office as long he has the confidence of Parliament, not the confidence of the Supreme Court. It can be said that the Pakistani Supreme Court, particularly its Chief Justice, has been showing an utter lack of restraint. This is not expected of superior courts. In fact the court and its Chief Justice have been playing to the gallery for long. It has clearly gone overboard and flouted all canons of constitutional jurisprudence.

THE WAY AHEAD

Since the new PM-designate, Raja Pervez Ashraf, also has a fair share of cases against him, the joke in town was that efforts were on to dig up dirt onQamar Zaman Kaira, the “cover candidate” introduced into the fray by the Pakistan People’s Party (PPP). In any case, no one expects the new premier to have an easy run. As the search for candidates for premiership was on, the bottom line was that only those willing to be disqualified for five years need apply. It is amply clear that the PPP is determined not to write to the Swiss authorities to reopen graft cases against President Asif Ali Zardari. Among the first tasks awaiting the new man in would be the Supreme Court order asking that the letter be sent, or go the Gilani way. To many an analyst, the superior judiciary is now attempting to do what traditionally the military — again a non-elected state institution — assigned for itself: clean up Pakistani politics and society. But, according to political analyst Hasan Askari Rizvi, “if the expanded role of non-elected institutions offered a credible solution, Pakistan’s politics should have been very organised and systematic after four periods of direct and indirect military rule.”

Therefore it can be said that every part of the Constitution should know that the Constitution establishes a delicate balance of power and each of the three organs of the state — the legislature, the executive and the judiciary — must respect each other and not encroach into each other’s domain, otherwise the system cannot function. For now, the coup talk may be just that — talk — but as all institutions continue to jockey for space and power in what is essentially the nascent phase of an evolving democracy, any attempt to upset the apple cart will arouse suspicion. On this count at least, Pakistan cannot be accused of crying wolf too often. And, the military and the judiciary do not have history on their side.

Md. Israr