Baseer Naweed, Senior Researcher on South Asia,
Asian Legal Resource Centre
After the Supreme Court Chief Justice, Iftikhar Chaudhry, was restored in July 2007, for the first time in the country’s judicial history it has, for the last six years, been able to exercise judicial power independent from the military and the civilian government. However, as the judiciary exercises its power as an independent institution-a realization of the aspirations of the legal profession-it is overstepping the powers of the other branches: the Executive and the Legislative. The emergence of the judiciary as a powerful institution now becomes a threat to the Constitution it should be protecting.
Firstly, from February to June 2012, the judiciary was in a direct confrontation with the Executive and the Legislative on the pretext of eradicating corruption when the judiciary ordered the reopening of the corruption case against President Asif Ali Zardari. And when the former Prime Minister, Yousuf Raza Gilani, refused to implement the court’s order citing presidential immunity under the Constitution, he was cited for contempt, convicted and disqualified to sit as the Prime Minister. He was replaced.
Here, Mr. Aitzaz Ahsan, one of the leaders of the 2007 lawyer’s movement, questioned the constitutionality of the judiciary’s action to prosecute President Zardari knowing full well the president’s immunity under Article 248(2) of the Pakistan Constitution. The judiciary has already acted beyond the ambit of its judicial power in the Constitution. When asked in an interview by the BBC’s Hard Talk in August 2012, he said:
No criminal proceedings whatsoever can be instituted or continued against the President in any court during his tenure of office. As long as Zardari is the incumbent head of State, and constitutionally elected President of Pakistan-you may like him, dislike him, you may charge him with corruption or any other offence (but he) cannot be sent for trial…
Mr. Ahsan was referring to the judiciary’s order to reopen an old case involving allegations against President Zardari that he and his deceased wife Benazir Bhutto, former Prime Minister who was killed in a bomb attack, were keeping ill-gotten wealth in Swiss banks. The court’s order to prosecute President Zardari did not progress; however, the conviction and disqualification of Gilani from office were seen to have undermined the power of the Legislative branch. After Mr. Gilani’s ouster from office, his replacement Prime Minister Raja Pervaiz Ashraf in June 2012 had to appear in person in court proceedings to explain what actions they have taken regarding the court’s order.
Ms. Asma Jahangir, former President of the Supreme Court Bar Association, has expressed concern that if the judiciary continues to nourish political thinking it will lead to unrecoverable loss. Ms. Jahangir argued that when the courts act in variance to the constitution and show political bias, the common man loses confidence in the courts. The court’s failure to deal with the corruption charges against Mr. Arsalan Iftikhar, the son of Mr. Chaudhry, as I have explained subsequently already demonstrates the court’s bias and double standard in prosecution of corruption cases.Mr. Ahsan’s concern over the judiciary overstepping other branches was supported by parliamentarians and leaders of the lawyer’s movement that helped restore the judiciary. They are concerned that, not only Mr. Chaudhry is overstepping other branches he is acting ‘too independently.’ The members of the ruling party also accused the judiciary of undermining the Legislative branch.
Secondly, when it was revealed that Mr. Arsalan Iftekhar had been involved in corruption in August 2012, the zealousness of the judiciary, and particularly the Chief Justice, against the Executive and Legislative branches by issuing orders to investigate, prosecute and arrest on the pretext of eradicating corruption did not happen to his son’s case. Chief Justice Chaudhry rather allegedly took advantage of his position in the judiciary to prevent any such investigation. Mr. Chaudhry was alleged to have known full well of the corrupt practices of his son. The allegations against Mr. Arsalan should have been duly investigated.
Mr. Arsalan’s accuser, Mr. Riaz Malik, a property dealer, claimed Mr. Arsalan had allegedly taken bribes in a form of a luxury flats in London and hotel accommodation in Park Lane. He gambled in Monte Carlo allegedly in exchange for favorable decisions from the court cases that his father was handling. Allegedly he has received cash of over 2 million pounds sterling. Chief Justice Chaudhry was accused of using his influence to prevent the investigation. To his son’s defense, Chief Justice Chaudhry argued that the allegations were an attack, not to him or his son, but on the independence of the judiciary.
To suppress the attack on Mr. Chaudhry’s son, the Supreme Court’s Divisional Bench stopped the investigation by giving a stay order for the proceedings. Also, to indirectly remind the media- who were exposing these allegations at the time in public-of the limit of their free speech and in doing so the judiciary imposed de facto censorship. In a petition concerning obscenity, the judiciary entrusted the Pakistan Electronic Media Regulatory Authority (PEMRA) with the role to compel the media to abide by the strict rules on ‘guided freedom’ in keeping the Islamic identity of the country.
Thirdly, the clash between the Judiciary and the Legislative did not end with the ouster of former Prime Minister Gilani from office for contempt of court. Seven months after Prime Minister Ashraf took office, he and the 27 top officials of the government became the object of an attack by the judiciary. The judiciary, once again, overstepped the powers of the Executive by giving orders to initiate arrest and investigation concerning a case on the Rental Power Project.
Mr. Bokhari said the court should have not acted on the report submitted to it by his predecessor. The report that was submitted earlier to the court was inaccurate, it did not contain complete records and the officers investigating failed to provide proof to pursue criminal prosecutions. In addition, Mr. K.K. Agha, the Prosecutor General of NAB, also said the judiciary has no power to review the records of the NAB. The judiciary, however, argued otherwise invoking that the constitution had given them supervisory powers in the adjudication of cases.On January 15, 2013, the judiciary gave orders to the National Accountability Bureau (NAB) to arrest Prime Minister Ashraf in the Rental Power Projects (Cases HRC No: 7734G of 2009). This case has been pending for three years, and the judiciary’s activism to revive this case drew criticism even from the anti-corruption body that is investigating the case. Admiral Fasih Bokhari, chairman of the NAB, expressed concern that for them to be given orders by the judiciary the latter has “over reached its judicial power and all boundaries of its jurisdiction.” Mr. Bokhari said the court neither has the power to give orders to them nor to monitor the progress of their investigation.
….the existence of the power to arrest is one thing. The justification for the exercise of it is quite another. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer affecting the arrest that such arrest is necessary and justified.The court, in the case of Jogindar Kumar v the State of UP (1994 (4) SCC 260), also established a judicial precedent in this principle. The judiciary’s order for arrest not only usurped Executive power, it is also abrogating its earlier precedents on protection of fundamental rights to fair trial and liberty:The court’s justification of its authority to supervise investigations raised serious questions on whether there is a role by the judiciary in the investigation of cases. The judiciary’s insistence of its supervisory power in the matter also gives rise to question on the fundamental rights of the accused to impartial investigation. Article 10-A of the Pakistan Constitution stipulates that “for the determination of (a person) his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.” Also, in giving orders to deprive liberty the effect of the right in article 9 of the Constitution means that liberty can only be deprived by due process of law.
The judiciary, by issuing arrest orders on the Prime Minister and 27 other high officials, effectively usurped the investigative power of the Executive. It has assumed authority to investigate and not only adjudicate criminal cases submitted before them. If the judiciary has the power to direct the investigation, then who now has the power to conduct constitutional judicial review of cases with impartiality? In a constitutional democracy, it is the Constitution, not the judiciary; and not the Executive and the Legislative, that is supreme. It is the Constitution. But what is happening in Pakistan is the undermining of democratic constitutionalism on the pretext of judicial independence.
Fourthly, the comments of Mr. Chaudhry that: first, it can stop the Legislative from making amendments to the Constitution and its inclination to legitimize Emergency Regulations should the military impose it in Balochistan province, also raised concerns on the utmost role of the judiciary to protect fundamental rights under the Constitution in a constitutional democracy. This signals further abrogation of the judicial power to protect fundamental constitutional rights where it is desperately needed: in a place where the military, not the court, is more powerful.
On the first concern, if the judiciary now claims it can override Legislative power, it would also mean that the judiciary subsumes not only the power of the Legislative, but a clear and open declaration that it is superior to the Constitution. Mr. Ahsan, the former president of the Supreme Court Bar Association (SCBA), has already expressed concern that the judicial activism the judiciary is taking is biased and unequal. The position taken by Mr. Chaudhry in his son’s case contradicts the court’s own decision. Also, Mr. Ahsan said the court can only review amendments of the Constitution made through simple majority for any discrepancy, but “amendments passed with a two-third majority cannot be challenged in court.”
Mr. Ahsan once again drew attention as to how the judiciary failed to uphold judicial fairness in the corruption case against Mr. Chaudhry ‘s son, Mr. Arsalan. The court proceedings on the allegations of corruption against Mr. Arsalan and the Chief Justice’s alleged complicity to it, demonstrates that the judiciary is not impartial and is “diverting from the prevailing principles of investigation,” Mr. Ahsan said.
Therefore, the judiciary’s action to prevent Mr. Chaudhry’s son from being investigated for corruption on pretext of protecting the judiciary from attack was wrong. Under the legal process, should there be attacks on the judiciary, it is the Judicial Commission, not the Supreme Court, who has the authority to investigate. Here, the failure of the Commission to do so has undermined not only the peoples’ confidence in the judiciary, but also the people’s confidence in the Commission as an institution that should protect the judiciary. The Commission’s failure to perform their obligation also indicates that it is yielding its power. As a result, it created a perception that there is one rule for one person and another rule for another people.
On the second concern, in May 25, 2012, the inclination of Mr. Chaudhry to legitimize the imposition of Emergency Regulations in Balochistan province raise serious concerns on the court’s role to protect fundamental constitutional rights. The imposition of emergency would rather cement the military’s impunity rather than protect the people’s fundamental freedoms. In practice, even though victims and families of disappeared persons are taking cases to courts to seek remedy, the military is completely ignoring the court. The military routinely refuses to disclose records of persons they have arrested or abducted. This is despite family members testifying in court that they had witnessed the military taking their relatives into their custody.
Not even the police can do anything. The police themselves had evidence that the Frontier Corp is abducting people using the military’s official vehicles. The military routinely takes people from police custody without showing any official orders or legal documents giving them the power to do so thereby leaving no record of the persons whom they have arrested. The impunity of the military establishment was a clear message to the courts not to impose their authority on them and the intelligence agencies.
This blatant arrogance is obviously the source of the Mr. Chaudhry’s impatience. It may be argued that his anger could be fully justified since the Balochistan provincial government also turned a blind eye to the almost daily forced disappearances and extrajudicial killings. However, in his eagerness to fix this problem, to legitimize the would-be declaration of emergency, he is taking the wrong path. The imposition of emergency regulations would rather give the military and the intelligence agencies more impunity in addition to what they are already enjoying. This province is now the scene of murders and abductions committed by the military with the tacit approval and cooperation of the police and the local government. Due process is non-existent in Balochistan. No protection whatsoever also exists for victims and their families.
The people of Pakistan struggled to restore Mr. Chaudhry and because of their efforts the judiciary is now able to exercise its judicial independence. But when the military, notably in Balochistan, can abduct and murder people with impunity, it is failing to live up to the people’s expectations and their aspirations for rule of law rooted in justice and human rights. Mr. Chaudhry’s indirect approval of the emergency declaration is devoid of what the role of the judiciary ought to be. If such words are used by the highest judicial officer of the country this will provide the military the opportunity they have been waiting for: to take over the government, re-impose martial law, usurp all power and abrogate the fundamental rights of the people, as it has repeatedly happened in the not so distant past.Rather than giving the military more power, Mr. Chaudhry should have instead be asking: why the orders of the court cannot provide remedies for the violations of fundamental rights in this place? He should have also looked at dismantling the deeply entrenched impunity the military has acquired. They have not been held accountable for thousands of deaths in the last decade in Balochistan. It is good that Mr. Chaudhry has done something, but unless the military, who consider themselves as judge and executioner, are held to account for their atrocities, the court as protector of fundamental rights is meaningless because it is unable to give remedies of any sort.
In conclusion, the political frictions generated by the overreach of the judiciary will be far more damaging to people of Pakistan and the country. The question before the judiciary is very simple: would it like to become part of the democratization in Pakistan, or would it prefer to be an isolated institution in quest for popular opinion?
