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The judicial coup and authoritarianism – by H.A. Khan

In one of his recent TV appearances Dr. Lal Khan, a longtime Marxist, explained that in a capitalist state the judiciary will always  favour and to protect the vested interests of the ruling class.

The current judicial crisis makes it clear that the judicial organ of the state seeks to rule the country, unfettered, in an authoritarian manner. It also makes transparent the judges’ hatred towards the largest political party in Pakistan (PPP), and their contempt for the majority of voters of this country and the parliament.

I have always admired the mother of renowned journalist Arundhati Roy for declaring in court that she ‘cannot accept judicial dictatorship and will always fight against it’. In the Pakistani context, it is very clear that after the restoration of judges, ordinary people are actually facing more miseries than before. Lawyers have increased their fees, making an already expensive judicial system more burdensome.

I ask the honourable ‘free’ judiciary the following very simple things:

1. When an innocent Christian girl Shazia Masih was killed in Lahore by a leading lawyer, the LHC bar and bench shielded their loyal advocate and ignored the appeals of the poor parents of Shazia.

2. This ‘free’ judiciary is always interested to dig the old graves of the Swiss Accounts Scandal but they don’t have a moral courage to admit that Mr Asif Zardari has been victimized by judiciary in the past 11 years, and that he gave his golden 11 years for the sake of justice and democracy in Pakistan.

3. The ‘free’ judiciary pledges to open up the Swiss Case against President Zardari, but lacks the humanity to close politically motivated cases against Benazir Bhutto, even after she gave her life for the cause of democracy and a free judiciary.

4. The superhero Chief Justice Iftikhar Chaudhry and his allies very swiftly took action against the NAB Prosecutor General who had just  filed three references against the Sharif brothers just three days prior. But what about the honourable judges who still fail to implement the price of sugar at the rate of Rs40 per kilo, something which affects the 180 million people of Pakistan.

5. The self-proclaimed hero Iftikhar Chaudhry was very happy to commend the ‘sacrifice’ of one of his fellow judges, Justice Saqib Nisar, but he does not have a spare moment to pay tribute to the people and the martyrs whom stood for democracy.

6. The honourable judges consider themselves as a saviour of the constitution of Pakistan, but by acting against the democratically elected President of the country, and furthermore by sacking the NAB officials, they themselves are acting as conspirators and gladiators against the Constitution.

7. They acted against the constitution when they appointed Justice Khalil Ramday (a loyalist of PML-N) as an adhoc judge without the consent of the President of Pakistan.

Now here is my advice to the PPP leadership:

Lenin once said: “One who does not learn from this history is always condemned to repeat it.”

My dear leaders of PPP, whatever you do, by either gate crashing into judiciary galas, or by inviting the super judicial hero at your premises, remember they will snub the people’s government, and they will never ever give you any good credit for whatsoever your efforts may be to end any crisis.

Unfortunately in our country there are two classes, one which is not answerable to any court of law for any thing they do, and the other class has no access to any court of law. Law in Pakistan is just like a spider web in which only and always the poor get struck and the rich always smash it.

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Farhad Jarral

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  • A different perspective —Munir Attaullah

    At the very least, is it fair to lay the entire blame for tensions between two pillars of state only on the government? And, in any case, are the supposed differences and tensions really that grave and fundamental that they are incapable of being sorted out?

    The popular narrative, assiduously
    promoted for many months now by the opposition and a powerful section of the media, would have us believe the government and the Supreme Court (SC) are on an inevitable collision course. Why? Because, it is said, the government, in many of its actions, is allegedly ‘violating’ the constitution and ‘defying’ clear SC orders.

    And why is the government embarked on this allegedly ‘defiant’ course? The answer is a convoluted one, but the reasoning given is as follows: after the NRO judgment it is inevitable and only a matter of time that the president is sent packing by the SC for cogent legal reasons. But, instead of taking note of the writing on the wall and resigning his office to clear himself of the charges against him — as he ought to — the president has wrongly decided to brazen it out.

    By a calculated policy of confronting the judiciary and creating a constitutional deadlock, the president is effectively threatening to bring down the whole political edifice should his opponents not back off. And if, in the process, he can portray himself as another Sindhi martyr, a victim of conspiracy, so much the better. For, it is argued, if the government will not implement the orders of the SC, how will the latter enforce its writ if not by summoning the armed forces to its aid to get rid of this government and/or the president?

    In other words, the government strategy is to leave no one in any doubt that the minus-one formula is not a viable option. Has not Mr Sharif only recently identified the president as the biggest danger to democracy? Are the president’s opponents not at pains to de-link his fate from the survival of the democratic system, suggesting the system can survive his ouster even by means other than impeachment by parliament?

    Now, whether such an analysis of events accurately reflects the actual situation (or the motivations of the dramatis personae), I cannot say. Sure, no half-believable theory is entirely fictional. But there is — at the very least — an alternative explanatory narrative of events that is worth considering.

    And what may that be? First of all, should a difference of opinion — okay, call it a turf war — between two institutions, over the issue of some appointments, be really billed as a ‘crisis’ that threatens to undermine the constitutional foundations of the state? Did not life, business, the war, and both government affairs and judicial processes go on meanwhile, with nary a hint of paralysis anywhere? More often than not, a crisis is only a crisis if you subliminally wish — as many did — to view it as such. Eventually, was the ‘crisis’ not resolved unexpectedly easily, much to the chagrin of those who would rather have had it otherwise?

    Secondly, let us not forget that many fine legal minds were inclined to accept that the government’s point of view — at least partly — was not without solid legal and constitutional merit. It was not as if the government was acting wholly capriciously in suggesting who should be elevated to the SC, who should be the next CJ of the LHC, and who should not be appointed as an ad hoc judge of the SC.

    That said, was it still a mistake for the government not to accept the CJ’s recommendations, post-haste? After all, under the constitution, the SC is the final arbiter in case of such a disagreement, and it would be fantasy to think it would ever rule against itself. If the end result was a foregone conclusion, was the legal team of the government bereft of all common sense, or was there another reason for the government to stick to its guns for a while before bowing to the inevitable?

    At the very least, is it fair to lay the entire blame for tensions between two pillars of state only on the government? And, in any case, are the supposed differences and tensions really that grave and fundamental that they are incapable of being sorted out, if only…?

    If only, what? Aye, there’s the rub. If only everyone exercises a little caution and self-restraint. But is such a temper of mind not wholly alien to our psyche?

    I am no spokesperson for the government, nor am I privy to its thinking. But I have a lot of sympathy for the view of Prime Minister Gilani, expressed publicly but always obliquely, of the need for institutions not to encroach upon the traditional territory of others. Discreet as the prime minister may be, no one should doubt where the finger is pointed. The problem is as follows: an independent SC is now an effective check on executive excess and its attempted constitutional transgressions. But what are the checks on possible constitutional transgressions by the SC?

    Effectively, none. For, the SC is the final arbiter on the constitution. So its pronouncements and actions — by definition — can never be, no matter what, legally violative of the constitution.

    Such unbridled power brings with it the awesome responsibility to always act sagaciously if the institution is to retain the respect and confidence of the whole nation. At all costs the SC must avoid becoming controversial, or even appearing to be so. It is not for nothing that a policy of judicial self-restraint is universally viewed as the key ingredient for the maintaining of such public confidence.

    There is an honourable place for suo motu cognisance, and for the questioning — even the directing — of high functionaries of state, by the courts. But where, in doing so you are, on the face of it, stepping into what is normally the territory of others, the guiding principle should be ‘if in the slightest doubt, do not’.

    As I said, if the superior judiciary chooses to take upon itself to decide what the price of sugar or petroleum products should be, or whether bureaucratic appointments, promotions, or transfers by the prime minister are in order, or gives direct orders to officials rather than act through their political masters, or insist some officials be sacked, it is impossible by definition for anyone to say it is acting unconstitutionally. But a political government is not that foolish not to know what is really happening in such cases: under the guise of the popular slogan of ‘providing justice to the people’, it is high politics in the wider sense.

    And so it is that the government, knowing it cannot fight its battle on the turf of legality, will be forced to fight it on the battlefield of politics. In particular, a policy of incrementally making the SC politicised and controversial is very much an option (and is not the SC by its actions unwittingly aiding in this endeavour?).

    It is my opinion the SC, in pursuance of its own notions of high morality and populist justice, has thrown down an essentially political gauntlet (albeit dressed as a legal one) to the president and his government. Let no one be surprised if the government, forced to respond, chooses a wider political strategy rather than a purely narrow legal one to counter the challenge. Why should the battle be fought on the turf determined by the adversary?

    This predictable scenario is not an appetising prospect for the country.

    The writer is a businessman. A selection of his columns is now available in book form. Visit munirattaullah.com

    http://dailytimes.com.pk/default.asp?page=2010\02\24\story_24-2-2010_pg3_2