Judiciary Threatening Stability of Pakistan's Emerging Democracy

A recent episode of Pakistani television talk show Merey Mutabiq included a disturbing conversation with Qazi Anwar, President of Pakistan’s Supreme Court Bar Association, in which several troubling assertions were made including that the parliament does not have the power to amend the constitution, and that the Supreme Court has the privilege of striking down any part of the constitution of which it disapproves. The proliferation of such statements and actions by justices and advocates of the Supreme Court are deeply troubling, and pose a potential threat to the stability of Pakistan’s emerging democracy.

Chief Justice of Pakistan's Supreme Court, Iftikhar Chaudhry
Chief Justice of Pakistan's Supreme Court, Iftikhar Chaudhry

Supreme Court advocates have begun filing challenges to the recently ratified 18thAmendmentwhich repealed anti-democratic measures adopted under dictatorial rule in the 1980s and 1990s.

Advocate Mohammad Ikram Chaudhry filed the petition on Monday on behalf of the President of the Rawalpindi District Bar Association, Malik Waheed Anjum. It described the amendment as an intervention in the independence of judiciary that militates against the concept of the basic feature of the Constitution on appointment of judges.

The first such petition filed by Advocate Nadeem Ahmed said the process of induction of superior court judges through Article 175-A was impractical and it would not serve the purpose of appointing competent, honest and self-respecting lawyers as judges.

President of Supreme Court Bar Association Qazi Mohammad Anwar has announced that he would also challenge the amendment after it was signed by President Zardari.

Popular Pakistani bloggers have begun asking why it is that elements within the judiciary are only now challenging the constitution, given that they tolerated for decades anti-democratic measures adopted under military dictatorships.

Despite the actions of some elements within the judiciary, it by no means represents a consensus within the legal community. Former President of Pakistan’s Supreme Court Bar Association, Aitzaz Ahsan spoke with Pakistan’s Geo News yesterday and affirmed that the ability to amend the constitution lies solely with the parliament, and that the judiciary is overstepping its constitutionally defined authority by challenging the recently ratified 18th Amendment.

The former SCBA president said the apex court may at maximum propose an amendment, as it is up to the court to give suggestions, but it cannot on its own, rise to amend the Constitution.

Ahsan said, according to the Article-238, 239 no amendment in the Constitution can be challenged in any court, whatsoever; neither can the SC’s power to hear petition be challenged.

It was 2005 Lawyers Forum case verdict, where the court ruled that the SC cannot overrule the Constitutional amendment, Ahsan said adding the LFO was challenged in the case.

In fact, Pakistan’s constitution is quite clear about where the authority for amending the defining document lies. Sections 5 and 6 of Article 239 of Pakistan’s constitutionread,

(5) No amendment of the Constitution shall be called in question in any court on any ground whatsoever.

(6) For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution.

As Pakistan’s constitution is quite clear on where the authority for constitutional amendment lies, statements by the historially ill-tempered Chief Justice of Pakistan’s Supreme Court, Iftikhar Chaudhry, that contradict the plain language of the nation’s constitution are deeply troubling.

Analysts have feared for some time that the Supreme Court’s actions threaten both the legitimacy of Pakistan’s judiciary and the stability of the democratic government.

Some Pakistanis are now accusing Chief Justice Iftikhar Chaudhry, who was the hero of Pakistani democrats when he was reinstated a year ago after a protest movement led by lawyers, of pursuing a vendetta against Zardari and trespassing on presidential turf.

“There should be accountability of the executive, but since they (the judiciary) appear to be one-sided, the whole issue of accountability gets diluted,” said Asma Jahangir, the head of the Human Rights Commission of Pakistan, an independent organization. “These are symptoms of political anarchy. The judiciary is destroying itself.”

Pakistan’s Constitution speaks for itself. The recently ratified 18th Amendment is a strong step forward in Pakistan’s move toward democratization, and concerns by members of the judiciary can be addressed through the process defined in the constitution. While Pakistan suffers daily attacks from radical terrorists, it would be shocking if the democratic government was ultimately destabilized by misguided elements within the nation’s judiciary and legal community.

2 thoughts on “Judiciary Threatening Stability of Pakistan's Emerging Democracy

  1. Reinventing Dialogue
    By Sherry Rehman

    JULY 15 is a good time for India and Pakistan to resume dialogue. The South Asian monsoon obliterates all conceits of human agency to one boundary-less blitzkrieg. Yet miracles are not in the pipeline. While there is a late, but useful awareness in New Delhi that talk is indispensable, the threshold for flexibility appears painfully low.

    The Indian leadership is brave to want peace. After the Mumbai massacre, in mainstream India, the notion of peace with Pakistan runs counter to the new muscular nationalism that lays down red lines in a strident television culture of consumer-led discourse.

    This talking-head phenomenon reflects the voice of a new reactionary middle class that exhorts governments to talk tough and carry a big stick.

    They target Pakistan as India’s main security challenge, and compete with each other to trash peace as a non-starter if the process accommodates Islamabad’s priorities. Thoughtful civil society voices that caution moderation are getting sparser as a species, and rare is the Indian pundit who can hold her own to suggest that Pakistan is part of a regional solution to the rising terrorist challenge.

    The reality that Pakistan is at war on its western borders, losing soldiers and non-combatants almost daily in terrorist reprisals all over the country is of no interest to this class. Add this media antipathy to the anti-Pakistan pathologies of the security establishment and peace-trackers have a new challenge to tackle.

    The good news is that this narrative of belligerence finds little resonance in the great mass of the urban and rural underclass that feeds, washes and services Emporio India or their aspirational lifestyles. This underclass of taxi drivers, shopkeepers, waiters and launderers is invested in a far more benign counter-narrative of authentic yearning for the neighbour that got lost in the fog of war. And most are not Muslim. Shopkeepers lay out discounts, drivers romanticise Pakistani fruit and waiters never stop asking questions about obscure towns they have no connection with.

    Yet, it is the state on both sides that will ha\e to act. The fact that both states had to rely on a sideline Saarc meeting on such a substantive issue as resumption of dialogue between two nuclear neighbours is an index of bilateral intellectual poverty. In this diplomatic milieu, the ballast to move from distrust into settlement mode will require more than just a standard-issue agenda.

    Productive dialogue seeks intended consequences, not ossified goalposts. Four items can protect the process from attrition. To define objectives, the first set of meetings should set the agenda for what items are laid on the table.

    Second, the reactivated process should be used as an opportunity to ensure that dialogue, by whatever name, remains intact, even for eyeballing displeasure. If dialogue remains hostage to external events, which may well be out of state control, then it will become less viable as an instrument of preventing conflict.

    Third, dialogue should be nudged back from confidence-building formats into conflict-resolution templates as soon as possible. If outcomes are not measured against reasonable targets, inertia will calcify decisions. Old stalemates on settled items like Siachen redeployments, Wullar barrage, Sir Creek, must be broken to reinvent the dialogue track and to reinvigorate trust.

    Finally, because the formal dialogue process has yielded so little in terms of gains, and so much in terms of reversals, a record of non-paper agreements should be archived as memoranda of back-channel agreements. Without these pre-requisites, dialogue will flatline, and a culture of consent will evade us.

    Despite Kashmir, two strains dominate the pathology of conflict between India and Pakistan. Terrorism and water-sharing now frame a new discourse for conflict-resolution, very different in nature from the long-standing disputes that vexed the relationship. Water deficits in Pakistan, partially impacted by India, have become the new force multiplier of nationalist dogma.

    Much of the narrative is based on widespread ignorance in both countries. Pakistan ignores the fact that over 35 per cent of the water in its system is wasted, and India ignores the misery it causes when crucial spigots run dry because upstream water is stored at sowing season in Pakistan.

    India can technically remain on the right side of the Indus Waters Treaty if it builds hydropower dams on the Rivers Chenab and Jhelum, but it is not allowed to use storage and timing to render downstream farmers destitute, nor to divert tributaries as indicated by the Kishanganga plan. As the upper riparian hegemon, New Delhi needs to manage Islamabad’s anxiety on several such planned projects on the headworks of the Indus system.

    For India, the ‘T’ word has trumped everything. Terrorism has transformed a thaw in South Asia to cold war terrain again. The three-day attack in Mumbai on 26/11 has reversed years of progress on the bilateral train. Instead of easing the strain, it seems that Ajmal Kasab’s conviction has reinforced inflamed sentiment in India, but informed discourse recognises that he is the kind of non-state actor that has scorched Pakistan’s earth as well.

    Seven other accused in the Mumbai carnage are being tried in Pakistani courts, and a fast-track verdict on these would help, even though the acquittal of two Indians involved in the Mumbai attacks has added a partisan twist to the process. However, there is much more than a Pakistani connection to Mumbai, as Hemant Karkare’s widow will say. Given that the reputable chief of Maharashtra’s anti-terrorist squad was killed minutes after the Mumbai attack, the episode leaves a string of questions still unanswered.

    This is not to suggest that Islamabad must not act against terror. It will and it must. But to hold one government responsible, especially a democracy with a history of engagement with India, is just plain bad politics. The region is hot with international game-players looking for strategic gains. If we don’t walk the talk soon, we may have more camels in the tent than we bargained for.
    (Sherry Rehman is Member of the National Security Comiittee of Pakistan’s Parliament, and former Federal Minister)

  2. Op-Ed Columnist
    Pakistan and Times Sq.
    By NICHOLAS D. KRISTOF
    Published: May 12, 2010
    If we want Times Square to be safer from terrorists, we need to start by helping make Pakistan safer as well.

    Fred R. Conrad/The New York Times
    Nicholas D. Kristof

    People with links to Pakistan have been behind a hugely disproportionate share of international terror incidents over the last two decades: the 1993 and 2001 World Trade Center attacks; Richard Reid’s failed shoe bombing in 2001; the so-called Bojinka plot in 1995 to blow up 12 planes simultaneously; the 2005 London train and bus bombings; the 2001 attacks on the Indian Parliament; and attacks on two luxury hotels and a Jewish center in Mumbai in 2008.
    So it came as little surprise that the suspect in the attempted car bombing in Times Square, Faisal Shahzad, is a Pakistani-American.

    Why does an ostensible “ally” seem to constitute more of a threat than, say, Iran? Or Lebanon or Syria or Iraq? Or Egypt, birthplace of the Muslim Brotherhood brand of militant Islam? Or the West Bank and Gaza, where resentment of America’s Middle East policies is centered?

    One answer, I think, is that Pakistan’s American-backed military leader of the 1970s and 1980s, Gen. Mohammad Zia ul-Haq, drove the country off course, seeking to use fundamentalism as a way to buttress the regime. Instead of investing in education and infrastructure, he invested in religious sanctimony.

    The public education system, in particular, is a catastrophe. I’ve dropped in on Pakistani schools where the teachers haven’t bothered to show up (because they get paid anyway), and where the classrooms have collapsed (leaving students to meet under trees). Girls have been particularly left out. In the tribal areas, female literacy is 3 percent.

    There’s an instructive contrast with Bangladesh, which was part of Pakistan until it split off in 1971. At that time, Bangladesh was Pakistani’s impoverished cousin and seemed pretty much hopeless. Henry Kissinger famously described Bangladesh as an “international basket case.”

    But then Bangladesh began climbing a virtuous spiral by investing in education, of girls in particular. It now has more girls in high school than boys, according to Unicef. This focus on education has bolstered its economy, reduced population growth rates, nurtured civil society and dampened fundamentalism.

    Educated girls formed the basis of a garment industry, making shirts for Americans. This brought in currency, boosted employment and provided an economic lifeline to the country. Those educated girls went to work for poverty-fighting organizations like BRAC and the Grameen Bank.

    In Pakistan’s tribal areas, you can hear American drones buzzing faintly overhead, a reminder of our focus on military solutions. Drones and hard power have their place, but not to the exclusion of schools and soft power. An important 2008 study from Rand, “How Terrorist Groups End,” concluded that “military force has rarely been the primary reason for the end of terrorist groups.”

    I can’t tell you how frustrating it is on visits to rural Pakistan to see fundamentalist Wahabi-funded madrassas as the only game in town. They offer free meals, and the best students are given further scholarships to study abroad at fundamentalist institutions so that they come back as respected “scholars.”

    We don’t even compete. Medieval misogynist fundamentalists display greater faith in the power of education than Americans do.

    Let’s hope this is changing under the Obama administration. It’s promising that the Kerry-Lugar-Berman aid package provides billions of dollars for long-term civilian programs in Pakistan, although it’s still unclear how it will be implemented. One useful signal would be for Washington to encourage Islamabad to send not only troops to North Waziristan but also teachers.

    We continue to be oblivious to trade possibilities. Pro-American Pakistanis fighting against extremism have been pleading for years for the United States to cut tariffs on Pakistani garment exports, to nurture the textile industry and stabilize the country. Pakistan’s foreign minister, Shah Mehmood Qureshi, told me that his top three goals are “market access, market access, market access.” But Washington wants to protect North Carolina textile mills, so we won’t cut tariffs on Pakistani goods. The technical word for that: myopia.

    Education and lower tariffs are not quick fixes, sometimes not even slow fixes. But they are tools that can help, at the margins, bring Pakistan back from the precipice. It has been reassuring to see the work of people like Greg Mortenson, whose brave school-building in Pakistan and Afghanistan was chronicled in “Three Cups of Tea.” Ditto for Developments in Literacy, or D.I.L., which builds schools for girls in Pakistan that are the most exhilarating things I’ve seen there.

    It costs $1,500 to sponsor a D.I.L. classroom for a year, and that’s just about the best long-term counterterrorism investment available.

    I invite you to visit my blog, On the Ground. Please also join me on Facebook, watch my YouTube videos and follow me on Twitter.

    A version of this op-ed appeared in print on May 13, 2010, on page A31 of the New York edition.

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