Daily Times Editorial Feb 21, 2010

Judicial assertion

National Accountability Bureau (NAB) chairman Naved Ahsan was on the receiving end of a dressing down by the Supreme Court on Friday. The SC’s umbrage was directed towards the perception that the chairman had been dragging his feet on the implementation of the National Reconciliation Ordinance (NRO) verdict of December 16, 2009. The particular elements of the judgement that had not been implemented in the court’s view were the removal of NAB’s prosecutor general and additional prosecutor general, and the reopening of all corruption cases in limbo because of the NRO, including the Swiss cases. On the NAB officials, while these lines are being written, the two gentlemen have been sent home, thereby fulfilling part of Mr Ahsan’s commitment before the court that he would implement the NRO verdict “from today”. The reopening of any corruption cases not yet restarted is a matter we must wait and see the outcome of, its results to some extent dependent on the replacements in NAB. As to the Swiss case, his honourable lordships are surely aware that a foreign country and judicial authorities are involved, not a local lower court. The issue therefore may require inputs and advice from the Law and Foreign Ministries, apart from sounding out the judicial authorities in Switzerland as to their willingness to take up the cases again, considering they were (controversially and unauthorisedly, in the SC’s view) withdrawn. There is also the complicating factor of the immunity available to the president’s office.
Chief Justice (CJ) Iftikhar Muhammad Chaudhry has stated while addressing the newly elevated and appointed judges of the superior judiciary that no unconstitutional step or adventurism would be allowed and justice would be served to the people. This is very good news, since adventurism and unconstitutional steps, including collaboration with military dictatorships, have been the norm in our stormy history. If the country, and the state’s institutions, have vowed to turn a corner and never again repeat the distortions that blacken our political and judicial history, Pakistan will have been well served. However, with the greatest respect to the superior judiciary, the troubling aggressiveness creeping into the judiciary’s pronouncements inside and outside the courts, whose thrust is mainly the incumbent government and ruling party, leaves questions in the mind whether this is possible only because a civilian elected government is in power in a crisis-ridden time? With the exception of the ‘No’ the honourable CJ threw back at a military dictator, which galvanized the lawyers, civil society and the polity against General Musharraf, our past does not bear witness to too many similar cases of defiance of unconstitutional rulers by our judiciary. Quite the contrary, in fact. The newly found independence of the judiciary should not only be seen to be dispensing justice, it must do so in a manner that raises the dignity and respect of this august institution. Restraint has always served the bench well throughout judicial history. Despite its peculiarities, Pakistan cannot be considered an exception in this regard.
Another troubling development is the pronouncement by the SC bench hearing the missing persons case that it would no longer examine the role of intelligence agencies. This case was a feather in the present SC and its CJ’s cap for having challenged for the first time in our history, the culture of impunity enjoyed by our intelligence agencies. Since they are widely believed to be behind the disappearance of thousands of persons in complete violation of the law and constitution, the SC seems to have retreated from its commitment to provide justice to the relatives and families of the ‘disappeared’. Surely this is not what the CJ meant by serving justice to the people.
Although the storm over the judges’ appointments seems to have blown over, the issue of the procedure for such appointments remains controversial. Even if we accept without demur, as the government belatedly has done, that the sole prerogative for these appointments lies with the CJ, this is not in consonance with the well established need for checks and balances and the separation of powers between the institutions of state. There is a pressing need therefore, for the political forces in parliament to revisit this issue and reform the procedure along the lines that consultation aside, such appointments should enjoy vetting and consensus in parliament. That would ensure that neither the executive nor the judiciary is the sole arbiter of judicial appointments and that appointments under parliamentary oversight would enjoy a degree of transparency and across the board acceptability seldom enjoyed by appointments in the past, or arguably in the present. In other words, there is a need to revisit the Charter of Democracy’s recommendations on this issue.