In presenting the current Judiciary and hyper ventilating media as a counter to Pakistan’s military establishment, (Overreach and Miscalculation, Friday Times Editorial, February 17th-24th, 2012) Najam Sethi remains consistent in his intellectual dishonesty. While presenting a token critique of the army; at odds with his recent advocacy of it– Najam shiftily tries to present the Judiciary and the media as anti-establishment institutions:
…there are two new and powerful contenders in the equation. The judiciary under Chief justice Iftikhar Chaudry has unprecedentedly pushed the military on the defensive for being unaccountable (the Mehrangate affair of 1990, disappearances and murder of Baloch and Taliban extremists in captivity). And the electronic media is reaching tens of millions of Pakistanis and courageously raising their consciousness. Neither will countenance any direct or indirect military intervention in politics.
The evidence is quite the opposite to these absurd claims made by Mr. Sethi. In the last few months, the Judiciary has openly allied with the military establishment. Refer to ANALYSIS: Pakistan constitution in jeopardy —Tausif Kamal where the author, an attorney at law, details how two “frivolous petitions” accepted by the Supreme Court and the proceedings conducted therein, have not only created a constitutional crisis but also directly favoured the military establishment:
The recent improper admission by our Supreme Court (SC) of a ‘petition’ filed by an unaffected non-party seeking to prevent the executive branch from exercising its constitutional powers to take any future action against army generals is another nail in the coffin of the supremacy of constitutional rule in Pakistan. It seems that the admissions of both the memo petition as well as this COAS/DG ISI petition were in brazen violation of the constitution and in wanton disregard of the established principle of separation of powers of the three branches of our government enshrined in our constitution. The admission of the memo petition and ordering a commission by the SC usurped the power and authority of the legislative branch, since the parliamentary committee was already seized of this matter and were properly conducting hearings, while the admission of this COAS/DG ISI petition infringes upon the inherent powers of the executive branch under the constitution to hire and fire all government officers, including the army generals.
It seems that Mr. Sethi picked the wrong time to pass off his chauvinist, pro-establishment views. An excellent report by Messrs Asad Jamal and Muhammad Badar Alam (“On Trial”, February 16, 2012, HERALD) presented a far more balanced picture. Here are some important quotes by prominent legal experts and political economists:
Dr Osama Siddique, associated with the department of law and policy at the Lahore University of Management Sciences (Lums), says three historical trends concerning the superior judiciary continue to have resonance in the present context. “One, the judiciary has had an invasive and power-accumulation propensity that is also characterised by illusions of self- grandeur; two, it is historically anti-PPP and favours pro-establishment parties which was poignantly displayed in the 1990s; and, three, it has repeatedly evinced a vulnerability to direct and indirect
pressures from the army.
Maryam Khan, an assistant professor of law at Lums, says “The judiciary has always exhibited a tendency to assert an exaggerated constitutional domain for itself and attempts to enhance it through its own pronouncements whenever the army goes in the background and a controlled democratic system is restored.” According to her, the court-centered development of the “public interest litigation” movement in the immediate post-Zia era of the late 1980s and early 1990s is an example of the judiciary’s strategic self-legitimation not only to assert an exaggerated constitutional domain for itself but also to reinvent its image as the custodian of constitutional and democratic values. “ … the judiciary has effectively evolved into an institution autonomous of, ascendant to, as well as deeply contemptuous and dismissive of, the political process,” she says.
Writing in the Economic and Political Weekly as early as 2009, Karachi-based political economist Haris Gazdar was even more scathing in his criticism of the judiciary and its main supporters, the lawyers. He argued that the constitutionalist pretensions of judges and lawyers were belied by their actions. “There is a pattern: media fuelled populism, encroachment upon the authority of the parliament and the executive, helping political allies, and keeping mum where core interests of the military might be involved. From a broadly-supported popular struggle against the Musharraf regime, the lawyers’ movement has morphed into a self-serving power grab,” he wrote.
The most damning verdict is given by Pakistan’s leading human rights champion, Asma Jehangir and supplemented by
another lawyer, Faisal Siddiqi:
Former Supreme Court Bar Association president Asma Jahangir has publicly accused the Supreme Court of working “under influence of the security establishment” in the memo case. Those who support her point of view cite many long-pending cases, including those involving violence in Balochistan and missing persons, in which the apex court has never gone beyond summoning senior intelligence officials. Talking about the memo case, for instance, Sidiqqi says “unlike in the past when the army asked for legitimacy from the court, in the memo case the army is not asking for validation of its unconstitutional acts.” What it is doing, and seemingly achieving is even more troubling. “It has instead sought to increase its de facto power as opposed to its de jure power by using the judicial process.” As and when that power gets validated through a Supreme Court judgement, the army will be placed way above the democratic and parliamentary process. This in turn will put elected governments at the mercy of a security establishment controlling everything from behind the scenes, and without having to worry about law and
Both these reports are prepared by lawyers and include leading lights of the controversial lawyer’s movement. One must appreciate and understand the fact that not only are these lawyer’s displaying an admirable character in objectively critiquing the judiciary whom they helped restore. They are also taking great risk in this endeavor because this judiciary has already shown its petty, insecure and bullying nature against the PPP government. In lynching the PPP-government for upholding the Constitution, this Judiciary has rejected bail petitions for an incarcerated senior PPP minister since the last two years. Of course, when it comes to PPP elected leaders and ministers, the “lack of evidence” argument assumes an altogether opposite meaning than when it is applied to boastful, mass murdering Jihadis like Malik Ishaq.
His deep hatred for the Pakistan People’s Party and a soft corner for the military establishment blinds Sethi blind to any rational or objective analysis. He sinks to new journalistic lows when he indirectly presents PTI’s political currents (without naming them but referring
to key buzzwards such as “Tsunami”, “Change” that are associated with it) as an expression of anti-establishment. The PTI and its hotch-potch of recycled Punjabi nationalism are anything but anti-establishment – a fact that has come as a rude shock to its chic urban supporters now horrified with their parties open dalliances with violent ISI-backed Islamist militias.
In a timely article in today’s DAWN Aqil Shah writes:
If the honourable judges can readily indict the country’s highest elected official for failing to implement its NRO decision, they should also directly summon the army chief (rather than the hapless defence minister or secretary) to account for the serious offence of alleged extrajudicial torture and murders in the custody of military intelligence agencies.
Herein lies the crux of the issue which is the deep-rooted dishonesty on the part of Mr. Sethi. The Judiciary is an essential component and collaborator of the Pakistani security State. Similarly, Pakistan’s media, barring the odd exception, parrots and protects the security establishment. Contrary to Mr. Sethi’s opinion piece, the Judges and journalists are an essential component of what is known in local parlance as the Teen(3)-Jeem alliance. Occasionally, these three components present a shallow criticism of one another but in the long term, they have consistently been the dark troika against elected democracy in Pakistan – especially if that government happens to be a PPP government. They have always been willing bed fellows as their elitest, xenophobic and parochial views support the warped security paradigm defined by the military establishment.
Even in the missing person’s case, the Supreme Court has only gone so far as the 11 non-Baloch prisoners suspected of belonging to Jihadist causes. This reflects not just tokenism but a pronounced Islamist and anti-Baloch bias. Hundreds of Baloch youth have been disappeared in an area controlled by the Frontier Constabulary – an army auxillary. After manipulating public sentiment on this issue and engaging in crass populism that hardly befits a judiciary, the Supreme Court has done no more than engaging in cheap tactics. It has issued stern-sounding but legally toothless comments to low ranking officers – in direct contrast to hauling up a unanimously elected Prime Minister for the crime of upholding the Constitution.
Sadly, given his historical hatred of the Pakistan Peoples Party and a Punjabi chauvinism that cannot look beyond the GT road politics of Lahore-Rawalpindi-GHQ-Aabpara, Sethi cannot bring himself to give any credit to a Seriaki Prime Minister for his graceful and courageous stance against Judicial tyranny. After all, this is the same Najam Sethi whose semi-public campaign of abuse and vitriol against Shaheed Mohtarma Benazir Bhutto during the mid-1990’s is remembered by many in the journalist community. His crass opportunism to join the Caretaker setup following another coup against an elected government hardly befits a journalist.
However, for the “Shady Mafia” as his lobby group is known as, such ethics don’t matter. Budding young journalists of promise as well as foreign journalists and commentators are worked over in well funded charm initiatives drives. Most get sucked into the vortex of the “Shady Mafia”. Before long they are regurgating the same pro establishment drivel on various forums. This is part of Pakistan’s blocked elite who hold up Najam “Shady” as a paragon of liberalism, when in essence, he is the most sauve spokesperson for the military establishment.