Daily Times Editorial July 9, 2012

‘New’ political theory The Supreme Court (SC) in its detailed judgement on Yousaf Raza Gilani’s contempt of court case has enunciated a ‘new’ political theory that the constitution is supreme, even over parliament. This theory has been reiterated by Chief Justice of Pakistan (CJP) Iftikhar Mohammad Chaudhry while addressing a ceremony in Karachi. The theory rests on the notion that the concept of parliament’s supremacy is ‘outdated’. The CJP has gone so far as to claim that even the highest court in the UK has declared that the idea of parliament’s supremacy is not in consonance with the times. Perhaps, but has that view led to the abandonment of parliament’s supremacy in the UK? The British constitution is unwritten, its polity relying on conventions that are so deeply ingrained that anyone trying to violate them suffers adverse consequences at the hands of the people. In the UK, the aphorism is often quoted that parliament can declare a woman a man and it cannot be challenged. That light hearted explanation of the unfettered supremacy of parliament stands unchallenged in the oldest democracy in the world, as well as all other later democracies. The constitution is framed by the elected representatives of the people (parliament) and its author is empowered to amend it. Such amendments usually flow from new developments and evolution based on the experience of democratic societies. Can the author, and the institution with the inherent power to amend it, be subject or inferior to its own creation? This is standing logic on its head. The ‘will of the people’, which the SC and the CJP are fond of quoting as something that only the superior judiciary, in its undeniable wisdom, is qualified to define, is reflected in the representatives the people send to the assemblies. There can be no two interpretations of this fact, especially not a ‘mythical’ will of the people that only the superior judiciary is privy to, and may be contradictory to the people’s political expression through democratic elections. It must not be forgotten that despite its position as the final interpreter of the constitution, the judiciary is not an elected institution. If it were to be conceded that the constitution is supreme, over and above even parliament, and given that the judiciary is the sole interpreter of that constitution, this would open the door to judicial dictation. As to the constitution as it stands, there is considerable room for dissatisfaction with many of its features. For example, Article 63, which the SC relied on to convict Gilani, is one of the remaining hangovers of General Ziaul Haq’s amendments, which arguably distorted its character from what the original framers of the basic law intended or put down. So-called ‘Islamic’ provisions, including Articles 62 and 63 that lay down moral (religious?) criteria for the qualification and disqualification of members of parliament respectively, have led, amongst other factors, to an intolerant society relying on narrow interpretations of religious injunctions. Even the 18th Amendment was unable to do away with these Zia-added provisions because those of a mindset close to the late dictator refused to go along. A close examination of Quaid-e-Azam Mohammad Ali Jinnh’s ideas shows that the constitution as it stands, with its religious connotations, bares little resemblance to the tolerant and inclusive vision he had. The ideas expressed in the detailed judgement of the SC in Gilani’s contempt case and the reiteration of these views by the CJP may be well intentioned, an underlining of the need to adhere to the provisions of the constitution as it stands, but they run the risk of setting up the creation over and above the creator, and opening the door to the judiciary being actually superior to all other institutions as the final arbiter of the basic law of the land. That way lies judicial tyranny, a scary prospect at any time, but especially worrying in the present context, when the restored judiciary has been criticised for being ‘overactive’ and stepping onto the turf of the executive and parliament, two institutions of state that enjoy their own purview under the doctrine of the separation of powers in a democratic polity. The worst part is that these newfound doctrines of the superior judiciary may have less to do with high constitutional principles and more to do with the immediate state of confrontation between the government and the judiciary. Such expedient conceptualisation must be avoided in favour of solid precedent and established principles that have guided democratic polities since they emerged in human history.

Daily Times Editorial June 23, 2012

A new prime minister Pakistan has a new elected prime minister: Raja Pervez Ashraf. On a day when the entire country’s gaze was transfixed on the National Assembly, the denouement came as no surprise. Raja sahib, the PPP-led coalition’s candidate, garnered 211 votes, while his rival candidate, the PML-N’s Sardar Mehtab Abbasi could only manage 89. Only 300 votes were cast out of a total house of 338, the reasons for this discrepancy ranging from boycotts to absence from the house of some members. At the time of writing these lines, the premier-elect had briefly addressed the house. Later, there was to be a meeting at the presidency in celebration of what the president called the people’s trust in democracy as demonstrated by the peaceful, free of controversy voting in of a new prime minister in the house. In contrast with the smooth manner in which the transition took place, there were quite a few jolts before and even up to the last moment. First and foremost, the PPP’s preferred candidate, Makhdoom Shahabuddin was knocked out thanks to the Anti-Narcotics Force, which timed its non-bailable warrants of arrest for Shahabuddin, the former health minister, exquisitely within a few hours of the Makhdoom filing his nomination papers. Presumably to avoid another crisis, the PPP decided to go with its cover candidate. As it turned out of course, perhaps the development was not without its silver lining. Raja sahib was helped by the last minute withdrawal as a presidential candidate of JUI-F chief Maulana Fazlur Rehman, even if his party decided to stay away from the voting. It must be said to the Maulana’s credit though that he seems to have imbibed some wisdom since his years of flirtation with the Musharraf dictatorship, in that he stated on the eve of the prime ministerial election that it would be better to stick with ‘one of ours’ (politicians) rather than a General. This reflects the growing consensus in Pakistan’s polity and society that despite its flaws and weaknesses (in the area of delivery mainly), democracy is at this juncture and perhaps for the foreseeable future, the only way forward for the country. This is the distillation of the adverse experience of military dictatorship in our history (30 years consumed by these illegal usurpations), which has proved beyond doubt that military dictatorships are disasters waiting to happen that leave behind more problems than they started out with. The continuity of democratic evolution, which helps weed out the dross and bring forward better stuff, is the only possible course for correction of our faults and problems. The collective wisdom of our elected representatives, even where it fails, is still superior to the whims, wishes, caprices and agendas of any dictator. Having said that, it must be admitted that the new premier-elect’s task is far from easy. The next step will be the swearing in of a ‘new’ cabinet, although it is expected that many of the faces will be the same old ones, such being the human resource pool available. Perhaps in order of priority, Raja Pervez Ashraf will have to tackle first and foremost the severe energy crisis that has crippled the economy and brought normal life to a grinding and painful halt. Perhaps Raja sahib’s credentials in this regard are tainted by the Rental Power Plants fiasco, but one hopes he has learnt something from that bruising experience. Following on from the energy crisis is the state of the economy. If energy is available, the chances of stabilisation, if not recovery, improve immeasurably. The rest nudges us onto the third great challenge before the incoming prime minister: our foreign and strategic policies that impact back on the economy and life in general. So long as Pakistan is perceived as a breeding ground for terrorists and whose circle of operations has long enveloped the country itself, we will remain relegated to virtual pariah status in the world, an uncomfortable isolation that bodes little good. The relationship with the US/NATO, our involvement in Afghanistan, our reluctance/unwillingness to deny the Afghan Taliban safe havens on our soil, all these are issues requiring urgent attention/resolution. This menu would deter many a brave heart. Let us hope Raja Pervez Ashraf is made of the sterner stuff required (the judiciary willing).

Daily Times Editorial June 21, 2012

FC in the dock The three-member bench of the Supreme Court (SC) headed by Chief Justice of Pakistan (CJP) Iftikhar Mohammad Chaudhry has pinned the blame for the disappearances of the missing persons in Balochistan squarely on the Frontier Corps (FC). The court came to this conclusion on the basis of reports and evidence presented to it, which in one instance at least, established the culpability of the FC. And given the spate of such incidents over the last few years in Balochistan, it would not be illogical to surmise that this was not an isolated incident but rather part of a pattern in the ‘dirty war’ being waged against dissident nationalists and the intelligentsia of Balochistan, in the mistaken belief that if such ‘troublemakers’ are eliminated, the problem would go away. In essence, what the FC and intelligence agencies have been up to is a slow genocide in the province. This is a high risk, highly dangerous course that has stoked the fires of separatism in the province and threatens the very foundations of the country. It is also proof that we have failed to learn any lessons from our fraught history, in which the attempt to solve essentially political issues through the use of force by the state (or rather the deep state) has more often than not brought us tragedy and enormous loss (the East Pakistan example should suffice to make the point). The SC has, since the restoration of the judiciary, taken pains to focus on the missing persons issue, especially in Balochistan where it has assumed the proportions of an epidemic. The SC bench therefore ordered the intelligence agencies and police to recover and produce before the court at the next hearing on July 9 at the Quetta Registry of the SC, at least the 93 missing persons whose cases have been proved to be genuine. Of course this will not satisfy those in Balochistan or elsewhere in the country who hold that even one missing person is one too many, not to mention the quoted figure by nationalist sources and the Voice of Baloch Missing Persons platform of thousands of such victims of the abduct, torture, dump bodies cruel policy. Nevertheless, even these few initial drops of rain can only bring hope and cheer to the families of the missing, who have been running from pillar to post for years in search of justice. The SC also ordered the federal defence secretary, Balochistan chief and home secretaries, IG police, FC IG to take concrete measures for recovery of the identified beyond doubt missing persons. The court ordered the Balochistan Home Secretary Naseemullah Bazai to raise the compensation for the families of 381 persons whose bodies have been found all over the province from the Balochistan government’s contemplated Rs 0.4 million each to Rs 1 million and pay it within three days. The court requires a compliance report in this regard at the next hearing on July 9. Of these 381 dumped bodies, the home secretary revealed that 102were found in 2010, 203 in 2011 and 76 already in 2012. Clearly then, the policy of kill and dump is alive and kicking and arguably getting worse. While the SC’s efforts in this matter are a source of solace to the families of the disappeared as well as right thinking people throughout the country, it constitutes one of the toughest challenges before the court. It remains to be seen whether, despite the clear and uncompromising instructions of the SC, the intelligence establishment and the FC, cocooned to date in a culture of impunity and non-accountability, will respond positively and do what the court requires. The test lies ahead.

Daily Times Editorial June 20, 2012

Looming judicial tyranny Yousaf Raza Gilani is gone. The incumbent PPP is discussing his replacement. Whoever succeeds Gilani still runs the risk of being subjected to the same pressures from the judiciary as Gilani faced, and which eventually ended in his ignominious departure, not at the hands of the people or their elected representatives, which is the norm in all parliamentary democracies, but at the hands of an activist judiciary that has opened itself up in the process to grave criticism. For the benefit of our readers, let us retrace some of the steps and developments that led to this denouement. The National Reconciliation Ordinance (NRO) was essentially a political deal between Musharraf and the PPP led at that time by the late Benazir Bhutto. It gave relief to over 8,000 people affected by charges of corruption and other misdemeanours, of whom only about 80 were politicians. While the Supreme Court (SC) struck it down on the strict constitutional/legal criterion of being discriminatory, and ordered all closed cases of the beneficiaries to be reopened, its subsequent focus seemed to be on just one of those beneficiaries: President Asif Ali Zardari. Gilani took his stand on the basis of Article 248 of the constitution, which lays down that the president enjoys immunity so long as he is in office. This is a principle that is the bedrock of every constitution known to man. Take the example of French former president Sarkozy. After losing the presidential election, his immunity extended one month after leaving office, according to the French constitution. As soon as that grace period expired, Sarkozy is being hauled over the coals in various cases, including the murky Agosta submarine affair that involves a Pakistan angle. The SC saw fit in its wisdom to ignore all this constitutional edifice despite the argument being presented that President Zardari could be acted against in the Cotecna case after he leaves office. Instead, the SC suggested that if ‘someone’ claimed immunity, he must apply for it to the court (while Article 248 leaves no or little room for ambiguity). The government appeared reluctant to subject itself to an ‘interpretation’ of Article 248 that could open new cans of worms for it, hence its reluctance to pursue the immunity matter in all the proceedings. The SC ordered the chief executive, then Prime Minister Gilani, to reopen the Swiss case despite presidential immunity and the reluctance of the Swiss judicial authorities themselves to reopen the case in the absence of fresh substantive evidence, those being their judicial rules. The insistence despite all these facts by the SC indicated to some circles that some extraneous factor may have crept into these judicial proceedings. Be that as it may, the first casualty of this jurisprudence is a unanimously elected prime minister at the hands of the judiciary. And there is no telling whether he will be the last. It may be noticed in passing that the reluctance of Gilani to file an appeal against his contempt conviction suggests a lack of confidence in the impartiality of the court. This is a serious development with implications for the future. The separation of powers enshrined in the constitution is a reflection of the best practice and constitutional structure from world experience. The framers of the US constitution were clear that individuals or groups could not be relied upon to exercise restraint on the basis of good intentions, therefore checks and balances and the separation of powers was necessary. Every institution therefore is enjoined by this schema to remain within its boundaries and not encroach on other institutions’ turf. Unfortunately, the restored superior judiciary’s activism, unrestrained in some instances by the time honoured principle of judicial restraint, is deleterious for the respect and dignity of the judiciary itself since it opens up the judiciary to debate and controversy. The SC’s overruling the Speaker of the National Assembly can be considered a weakening of the principle that parliament is supreme. In fact, the essence of the verdict against the Speaker’s finding is to declare, at least in the sphere of the issues raised by the case, that parliament’s supremacy is subject to the will, not of the people, but of the judiciary. This is a dangerous chink in the wall of separation of powers construct. Since there is no higher judicial forum than the SC, its verdicts acquire permanence (we may recall the shelf life of the doctrine of necessity to illustrate the point). The US Supreme Court declared: “We are not final because we are infallible. We are infallible because we are final.” Hidden in that message is the thought that if the judiciary does not judiciously impose restraint on itself, the direction in which things may head would alarmingly resemble judicial tyranny.

Daily Times Editorial June 19, 2012

Virtual judicial coup The Supreme Court’s (SC’s) verdict on the petitions challenging the ruling of the Speaker of the National Assembly (NA) that rejected the argument that Prime Minister (PM) Yousaf Raza Gilani stood disqualified after being convicted and sentenced for contempt of court has pronounced that he does stand disqualified, not only from the premiership, but from membership of parliament as well. Not just that, the SC in its short order has laid down that he cannot stand for election for five years. To that end, the SC has sent instructions to the Election Commission (EC) to issue a notification to that effect. Meantime the PPP’s Central Executive Committee (CEC), which happened to be meeting when the verdict was announced, revealed its decisions on the crisis through a press conference by PPP leaders. The gist of the CEC’s decisions was that despite having reservations about the SC’s verdict, they had accepted the court’s finding that the conviction and sentencing till the rising of the court of Gilani for contempt on April 26 meant that he was no longer the PM, and with retrospective effect, had been removed on and since that date. The PPP has appealed to its workers and supporters to remain calm and restrained, despite the fact that the verdict is bound to inflame opinion in the PPP and allied camp. The CEC has empowered party Co-chairperson President Asif Ali Zardari to take whatever decisions he thinks fit regarding a replacement for Gilani. The intriguing question of course is whether the new PM will suffer the same pressure from the SC to write the letter to the Swiss authorities regarding President Asif Ali Zardari that the court was insisting on Gilani writing, and refusal to comply with which had attracted the contempt conviction for the former PM. In that case, the looming confrontation between state institutions, which began as a confrontation between the judiciary and the executive, could expand to now a confrontation between the judiciary and parliament as well. After all, the SC’s verdict overruling the Speaker of the NA too has set an unprecedented example, one that will reverberate in our jurisprudence for a long time to come. Questions have also been raised whether all the decisions and acts of the former PM since April 26 to date stand. The most important of these acts was the passing of the budget. It is possible that the detailed judgement may throw more light on this matter. Normally, courts are mindful that retrospective judgements should not disrupt things done and transactions closed to an extent that causes greater difficulties. Yousaf Raza Gilani was unanimously elected PM after the 2008 elections, arguably in the context of the assassination of Benazir Bhutto in end 2007, a tragedy that led to widespread unrest and riots, especially in Sindh. The sympathy factor had a great deal to do with the results of the 2008 elections in which, despite garnering only a plurality, the PPP was the only party in a position to form a coalition government. The other factor that worked in favour of the consensus that surrounded Gilani’s election as PM was the relatively good relations at the time between the PPP and the main opposition party the PML-N. By 2009, those relations had already soured to the point where the coalition saw the departure of the PML-N and its open opposition to the seeming reluctance of the PPP to restore Chief Justice of Pakistan Iftikhar Mohammad Chaudhry and the deposed superior judiciary. Since then, the impression has been unmistakable that the SC has tilted more against the incumbent PPP than in any other direction, even resorting to picking and choosing which cases to hear on a priority or fast track basis. This has invited criticism of the judiciary for alleged bias. True or not, such criticism may well find a fresh lease of life after the SC, in an unprecedented verdict, has deposed a sitting PM. Such ‘treatment’ at the hands of the judiciary is likely to resurrect the party’s memory of past injustices at the hands of the judiciary, the most poignant example being the case of Z A Bhutto. This verdict will have legal as well as political implications. Whether our nascent democratic system will survive these fresh storms can only be left to the imagination at this point.

Daily Times Editorial June 14, 2012

Malik Riaz’s tirade A virtual storm has overtaken the country as a result of the tirade launched by property tycoon Malik Riaz in his press conference following his appearance before the Supreme Court (SC) in the Arsalan Iftikhar case. Although Malik Riaz’s written statement submitted before the SC had levelled serious charges of being blackmailed by Arsalan Iftikhar out of millions of rupees in cash and other benefits, his demeanour before the court gave no hint of what was to follow. In his press conference, Malik Riaz shifted his line of attack from the son to the father, from Arsalan to the Chief Justice of Pakistan (CJP) Iftikhar Mohammad Chaudhry. Malik Riaz posed three questions directly to the CJP. First, he asked the CJP to tell the nation how many times he had met him in the darkness of the night? Second, was Arsalan not present in these meetings? Third, how many times had the CJP met Prime Minister Yousaf Raza Gilani at Malik Riaz’s partner Ahmed Khalil’s residence, where the sitting registrar of the SC was also present? According to Malik Riaz, a sitting judge of the SC also used to participate in these meetings. Why did the CJP not take suo motu notice then, and only after the media broke the news, asked Malik Riaz. When did the CJP come to know of Arsalan’s wrongdoings, he asked? (Aitzaz Ahsan has stated that he had informed the CJP of the rumours swirling about Arsalan's business dealings six months ago.) Malik Riaz says a mutual friend of his and the CJP told the latter about the blackmailing of his son but the CJP refuted this and labelled Malik Riaz himself a blackmailer. These statements are startling enough, but Malik Riaz then descended to some wild and incredible assertions. He said the CJP should not have taken up cases against him, implying that since he was being blackmailed by his son, justice would be compromised. He claims the FIA was ordered to implicate him in a murder case, without clarifying who might be interested in such a step. The FIA is controlled by the federal government, the top leaders of the ruling party, President Asif Ali Zardari and Prime Minister Yousaf Raza Gilani being Malik Riaz’s friends, according to his own admission. Who then could have so ordered the FIA? In the next breath Malik Riaz exonerates by implication both the PPP-led federal government and the military from any responsibility for this ‘tsunami’ by declaring there is no ‘third party’ behind the controversy. Though he claims he did not bribe anyone, but was blackmailed, in the next breath he admits his son-in-law did pay bribes! Last but not least, and possibly the piece de resistance, he asserts that the judiciary is not free but being run by a ‘don’, i.e. Arsalan Iftikhar! He ends by promising more startling revelations “in due time”. In response to the diatribe of Malik Riaz, the CJP has taken suo motu notice of the press conference, set up a three-member bench to charge Riaz with contempt, and called a full court meeting of the SC on June 15. No one is in a position presently to ascertain the truth or otherwise of Malik Riaz’s charges, but the fact remains that a distinction needs to be made between what appear prima facie to be serious allegations against the CJP and his son, and wild statements that do not stand up to logic or scrutiny. Both serious allegations and wild statements however have dragged the judiciary into the mud. Whatever the CJP and the SC do in their defence and in defence of the respect and dignity of the judiciary, the taint of accusation will be difficult to jettison or wash clean. It would be in the interests of justice, the respect and dignity of the judiciary, and the country if the CJP were to contemplate stepping aside or at the very least going on leave until the whole matter is cleared up. The charges are too serious and the personage being attacked, the CJP, too important to allow the affair to be expediently dealt with. The truth must be brought out without fear or favour, and all those involved receive their just desserts according to their guilt or innocence as determined by a thorough investigation and final pronouncement by the apex court to salvage something of its battered image.

Daily Times Editorial June 13, 2012

Supreme Court on Frontier Corps IG Chief Justice of Pakistan (CJP) Iftikhar Mohammad Chaudhry, while hearing the missing persons’ case, expressed extreme annoyance at the Inspector General (IG) of the Frontier Corps (FC) Major General Obaidullah Khan Khattak for holding a press conference on the issue, contrary to the court’s orders. The CJP went so far as to say that it was not the business of people in uniform to hold press conferences. Further, the CJP raised the startling possibility that the court could pass a coercive order under Article 190 to summon COAS General Ashfaq Parvez Kayani to explain the conduct of the FC IG and inform the court whether what was going on was the way to run the country. Reflecting on the state of affairs in Balochistan, the CJP said it was an issue that could not be ignored as the province was the most important part of the country. Conditions in the province, instead of improving, were getting worse by the day, the CJP argued. As proof of this, the CJP referred to the tragedy that those people missing were in danger of their lives if their relatives or others approached the court for redress. As an example, the CJP pointed to the case of three missing persons who the court ordered should be recovered, but they were only ‘recovered’ when their dead bodies were dumped. MPA Sadiq Umrani was a witness to the butchering of two people. Around 20 people have been killed in the last 2-3 days, another member of the bench, Justice Jawwad Khwaja, revealed, while 835 incidents had occurred but no one was caught. The claim in the IG FC’s press conference that all that was wrong in Balochistan was the handiwork of foreign agencies evoked the retort from the CJP that in that case, what were our agencies doing. This old, tattered ‘foreign hand’ refrain was also taken up the other day by Justice (retd) Javed Iqbal, the head of the missing persons commission. This concerted and obvious attempt to whitewash the doings of the FC and intelligence agencies in disappearing people whose tortured bodies are then dumped all over the province has been refuted by the Human Rights Commission of Pakistan (HRCP), which said it had always provided full and verified details of each case of missing persons, a fact reflected by the recovery of those so named. In our history the ‘foreign hand’ excuse has always been used to deny the ground realities and real responsibility for wrongdoing. In answer to the FC’s counsel’s assertion that the FC was being maligned and ‘victimised’, the CJP referred to the video presented in the court showing FC personnel abducting three people. Why, the CJP, asked, should the chief of the FC not be held responsible for such happenings? The counsel then suggested the Supreme Court (SC) should order the withdrawal of the FC from Balochistan, to which the CJP retorted that this was the work of a magistrate, not the apex court. The CJP may be embattled at present because of unrelated causes, but his and the SC’s role in the missing persons case is admirable. Unfortunately, the court is up against the arrogance of ‘untouchable’ impunity that the security and intelligence agencies have enjoyed throughout our history. From the IG FC downwards (and upwards), these agencies do not consider themselves answerable or accountable to anyone or anything. The FC’s counsel can go so far as to say the constitution either does not exist or at least is not being implemented in the country. That is precisely the responsibility of the superior judiciary to ensure the rule of law prevails. As the CJP said in his remarks during he hearing, no one has the right to kill even criminals, let alone suspects whose crime, if any, is yet to be established through due process. The lawlessness with which Balochistan is afflicted at the hands of the FC and sister agencies is a total subversion of the law and constitution. Hence the SC is to be supported in its efforts to right these obvious and brutal wrongs before the shortsighted repressive policies of the deep state produce a cataclysm that threatens the very existence of the country.