Tag Archives: Judiciary

Islamabad High Court Establishes Important Precedent

Islamabad High Court

The Islamabad High Court (IHC) established an important legal precedent in a recent ruling regarding freedom of speech in Pakistan. The decision involved a petition filed by the Shuhada Foundation, a non-profit organization affiliated with the extreme right-wing Lal Masjid in Islamabad, against TV coverage of music and dancing at recent anti-government protests in Pakistan’s capital. The IHC dismissed the petition and fined the petitioner for wasting the court’s time. In dismissing the petition, Justice Athar Minallah also gave the complainants some important advice: If you don’t like music, change the channel.

change the channelJustice Minallah’s advice has important implications when applied to other cases that involve complaints about offensive content such as those that seek to restrict the broadcast of international programming or allegations of blasphemy. In each of these cases, a court order is not required to remove the offensive content from the individual viewers television. They just need to change the channel.

The precedent established by the IHC also has bearings on another important issue: The now two-year-old blocking of YouTube in Pakistan. As with potentially objectionable content on television, no one is required to view any particular videos on YouTube or other online video sharing sites.

By making the individual responsible for his or her own viewing choices, the IHC’s decision strengthens Pakistan’s constitutionally-guaranteed freedoms of speech and access to information and limits the ability of anti-democratic forces to use legal cases as a weapon against minorities and other marginalized groups.

Pakistan’s Activist Judiciary Doing More Harm Than Good

Chief Justice Iftikhar ChaudhryOver the past five years, Pakistan’s courts were widely criticized for pushing the boundaries of reasonable judicial oversight and taking an aggressively adversarial role against the previous Pakistani government. Many observers assumed that the judiciary’s behavior was the result of a personal dislike for former President Asif Zardari on the part of Chief Justice Iftikhar Chaudhry and other judges. Whether or not that was the case, the judiciary’s activism did not end with the Zardari government earlier this year – something that does not bode well for Pakistan’s democracy.

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Pakistan’s Media: Selective Freedom and Selective Accountability

Geo/Jang GroupPakistan’s media has a reputation for being confrontational. After being freed by Gen. Musharraf in 2002, Pakistan’s media grew exponentially and is often credited with playing a role in the dictator’s eventual downfall. Following the 2008 elections, Pakistan’s media has continued in its unrelenting criticism of government officials – an activism defended by Geo TV president Imran Aslam earlier this year as “talking truth to power.” But in Pakistan,it appears that the media is more interested in holding some powers accountable than others.

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A Way Out?

Justice Asif Saeed Khosa

Pakistan’s Supreme Court sent mixed signals this week as it postponed confrontation with the Prime Minister over its order to write a letter to Swiss authorities reviving corruption cases against the President, Asif Zardari. Convictions against Mr. Zardari were previously overturned when evidence of a political conspiracy surfaced in 2001.

Speaking on Wednesday, Supreme Court Justice Asif Saeed Khan Khosa rejected a request by Attorney General Irfan Qadir that proceedings be delayed until after Ramadan, but then stated that the Court accepts that the President enjoys immunity under Article 248 of the Constitution.

“We don’t deny about the immunity and we are ready to give any help by even stating in our order that Zardari is the president and has the immunity. God willing nothing will happen and democracy will not be derailed,” Justice Khosa said, adding that the world would watch that both the institutions would be vindicated.

In a separate hearing on a recently promulgated bill immunizing specific high-level officials from contempt of court charges, Chief Justice Iftikhar Chaudhry seemed to signal that he is prepared to deny the president immunity.

Asking whether US Presidents Richard Nixon and Bill Clinton were granted immunity, the chief justice of Pakistan on Wednesday observed that if the court had not granted immunity to the prime minister, it could also withhold it from the president.

While Justice Khosa’s conciliatory remarks suggest the possibility of a way out to defuse the tensions, Chief Justice Chaudhry’s are somewhat bewildering. US Presidents Nixon and Clinton were not be granted immunity because the US Constitution does not provide for it like Pakistan’s Constitution does.

Whatever was intended by the Chief Justice’s remark, Justice Khosa’s statement suggests that the Court may not be willing to push the confrontation to the brink. This is a positive sign that discussions may be taking place to find a way out of the present impasse that preserves the integrity and authority of both the judicial and executive branches of government, and, most importantly, the Constitution.

Public Oversight Protects Institutional Reputations

Pakistan parliament

Since being freed from its shackles in 2002, the growth of Pakistan’s private media industry has been lauded as an important (if imperfect) check on political power. By exposing official corruption, Pakistan’s media is acting on the famous maxim of US Supreme Court Justice Louis Brandeis: “Sunlight is the best disinfectant.” While Pakistan’s politicians increasingly find themselves under the media microscope, the same principle does not apply equally to all of Pakistan’s institutions.

Earlier this month, the Public Accounts Committee (PAC) for audit reports related to the allotment of residential plots to three existing and twelve retired judges of the Supreme Court. The Supreme Court refused to provide any information to the PAC, referring to Article 68 of the Constitution which says that “No discussion shall take place in [Majlis-e-Shoora (Parliament)] with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.”

It is hard to conceive how the discharge of the duties of a Supreme Court or High Court judge would involve receiving expensive residential plots. Nevertheless, the judiciary appears to be uninterested in exposing its own members to the same type of oversight considered essential for elected officials.

In one way, though the PAC got off easy. When real estate tycoon Malik Riaz accused Pakistan’s Chief Justice of corruption, he found himself facing jail time for contempt of court. Contempt charges have also been leveled against the former Interior Minister, Rehman Malik, former Law Minister, Babar Awan, Mian the owner of a private TV channel and two TV talk show hosts.

None of the defendants may not have much recourse. Article 204 of Pakistan’s Constitution allows the Supreme Court to punish any person who “scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt.” Regardless of whether or not a judge is involved in any crime or malfeasance, it may be illegal to say so.

Pakistan’s judiciary is not the only institution that would prefer to remain off limits to criticism. A defense committee in Pakistan’s Senate on Monday recommended that media criticism of Pakistan’s military should be stopped. The meeting, chaired by Mushahid Hussain Syed (PML-Q), concluded that criticism of Pakistan’s armed forces is “irresponsible behavior” that is harming the military’s reputation abroad.

Tahir Hussain Mashhadi (MQM) reportedly said that “no country criticizes its own armed forces and sensitive institutions but in Pakistan, the so-called analysts do so arguing unnecessarily about the excess of national defence budget,” a statement that must have amused Defense Secretary Leon Panetta, Gen. Stanley McChrystal, and others in the US military establishment.

Like Pakistan’s judiciary, the military too enjoys extraordinary protection from criticism. Article 63(1)(g) of Pakistan’s constitution – the article recently used to remove a democratically elected Prime Minister – disqualifies from membership in parliament anyone who,

“has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan.”

If Justice Brandeis’s maxim about sunlight being the best disinfectant is true, it should apply to all institutions equally. Only by opening national institutions to public oversight can governments limit abuse and scandal. By placing the judiciary and the military outside the realm of criticism, Pakistan is facilitating the very outcomes that it hopes to prevent – scandals and suspicions that threaten the reputation of critical national institutions.

Pakistan’s “Suprema Lex”

Pervez Musharraf and Chief Justice Iftikhar Chaudhry

The English-langauge daily Dawn reports today that a sense of foreboding has taken over Islamabad, where politicians and analysts fear the possibility that Pakistan could be heading towards an extended caretaker government – what some call the “Bangladesh model” after that country’s flirtation with unelected technocratic governance in 2006. Such a move would require validation from the Supreme Court, though, raising questions about whether the current Court would give sanction to such a measure. Unfortunately, there is reason to believe they might.

Pakistan’s Chief Justice, Iftikhar Chaudhry, is best known as the man who was removed from the bench and placed under house arrest by Gen. Pervez Musharraf in 2007. What is less often remembered, though, is Iftikhar Chaudhry’s role in facilitating Gen. Musharraf’s 1999 coup against the democratically elected PML-N government, and his giving sanction to Gen. Musharraf’s changes to the constitution in 2002.

In 1999, Gen. Pervez Musharraf deposed then Prime Minister Nawaz Sharif’s government in a military coup and promulgated the Provisional Constitutional Order (PCO) of 1999 declaring a state of emergency and suspending the Constitution. Gen. Musharraf ordered judges to take a new oath under the PCO, which many refused. Iftikhar Chaudhry was not one of them. In 1999, Iftikhar Chaudhry chose to take an oath of allegiance to Gen. Musharraf’s new military dictatorship.

Some might argue that Chaudhry was only doing what he had to in order to maintain a check on the new dictator, but this wasn’t the last time that Iftikhar Chaudhry gave judicial cover to Gen. Musharraf’s exploits. In 2000, Justice Chaudhry joined the Supreme Court in dismissing challenges to Gen. Musharraf’s coup. The Court, in its own words, “validated the extra-constitutional step on the touchstone of the doctrine of state necessity and the principle of salus populi suprema lex [trans. “Let the good of the people be the supreme law”].”

In 2002, Justice Chaudhry again joined the Supreme Court’s decision to dismiss petitions against Gen. Musharraf’s 2002 Legal Framework Order (LFO) which amended the constitution to, among other things, give Gen. Musharraf the power to dissolve parliament at will.

In 2005, Justice Chaudhry was one of five Supreme Court justices who voted to uphold Gen. Musharraf’s 17th Amendment to the Constitution, further giving judicial cover to exta-constitutional measures.

Justice Chaudhry’s long history of validating Gen. Musharraf’s extra-constitutional measures has led to the perception among some that he is a military stooge, and that his battles with Pakistan’s current democratically elected government are a sign that he is facilitating a “judicial coup” at the military’s behest. Things are not so simple.

Justice Chaudhry’s support for Gen. Musharraf’s dictatorship earned him the position of Chief Justice in 2005, but his independence earned him a suspension only two years later when he began to find against the military government. In one of many political missteps by the military dictator, Gen. Musharraf placed Chaudhry and his entire family under house arrest, making Chaudhry a political martyr and expediting his own downfall.

After being reinstated by President Asif Zardari, Justice Chaudhry has continued to use the court not only as a tool against civilian officials, but against Pakistan’s military intelligence agencies, publicly taking them to task for illegally detaining terror suspects. This is often cited by the Chief Justice’s supporters as further proof of his independence.

Whether or not Iftikhar Chaudhry is colluding with the military or not is the wrong question. The right question is whether he is acting within the constitutional confines of his own institution. Unfortunately, several of his past legal decisions suggest Justice Chaudhry subscribes to a jurisprudence that does not recognize constitutional confines, instead seeing his role as an independent political activist.

Justice Chaudhry claims that he no longer supports the “doctrine of necessity,” but with the introduction of the “basic structure doctrine,” he may no longer need it. The Chief Justice now has a tool that not only allows him to interpret the Constitution, but to define it.

As Pakistan proceeds towards national elections next March, Chief Justice Iftikhar Chaudhry has the opportunity to demonstrate whether he really has turned his back on the “doctrine of necessity”, or if his recently stated belief that “We should only examine our own constitution to ensure that the will of the people prevails,” indicates that he still sees himself as the guardian of salus populi suprema lex. For the sake of Pakistan’s democracy, we hope it is the former.

Institutions and Individuals: Battle for Supremacy in Pakistan

Much is written about the struggle for supremacy between Pakistan’s civilian and military institutions. But Pakistani democracy is currently suffering from another power struggle – one between civilian institutions. During the past few years Pakistan has seen the rise of the Supreme Court as a new contender in the struggle for domestic power. Increasingly, however, conflicts between the judiciary and other branches appear to be battles between individuals rather than institutions.

After the controversial retroactive disqualification of former Prime Minister Yusuf Raza Gilani by the Supreme Court, Pakistan’s parliament this week passed a bill to amend the Constitution to grant immunity from contempt of court charges to certain government officials in anticipation of the court’s using the threat of contempt as a means of forcing the executive branch to enforce its orders. Supporting this concern is the court’s order to the new Prime Minister to respond by July 12th to their order that a letter be written to Swiss authorities reopening corruption cases against President Asif Zardari. The executive  branch continues to insist that they are constitutionally prohibited from following the court’s order as the president enjoys immunity during his term in office, and legal analysts describe the Prime Minister as being caught in a “contempt trap.”

Opposition politicians are predictably against the bill. Ahsan Iqbal of the Pakistan Muslim League – Nawaz (PML-N) said in a press release that the bill is part of a political strategy to protect the president from corruption charges, despite the PML-N’s having passed a similar bill when it was in power in 1997 and PML-N President and then Prime Minister Nawaz Sharif was facing similar battles with the Chief Justice at the time, Sajjad Ali Shah. Syed Munawar Hasan and Imran Khan, leaders of the Jamaat-e-Islami and Pakistan Tehreek-e-Insaaf political parties, called the amendment un-Islamic.

The lack of trust between parliament and the judiciary is mutual, though. While Pakistani parliamentarians were discussing how to reign in judicial oversight, Pakistan’s Supreme Court announced that judges were beyond the oversight of parliament. Neither is the first time that the Supreme Court has bristled at the prospect of parliamentary checks on its members. When parliament passed the 18th Amendment devolving powers that had been consolidated under past military dictators, the Supreme Court objected to a provision of the bill that created a new inter-institutional commission to nominate justices. Previously, new justices were selected by the Chief Justice himself. In a bizarre move, the Supreme Court began hearings on whether the unanimously passed constitutional amendment was unconstitutional for violating the “basic structure” of the constitution – an ambiguous set of unwritten principles that would essentially give the Supreme Court veto power over any act of parliament. Ultimately, the Supreme Court punted on the question, asking parliament to clarify certain aspects of the judicial commission and leaving the “basic structure” issue hanging over parliament.

As parliament prepared to take up the constitutional amendment limiting the court’s power to remove officials with contempt convictions, Chief Justice Iftikhar Chaudhry may have hinted at the return of the “basic structure” doctrine. Speaking at a ceremony for newly enrolled Supreme Court advocates last weekend, the Chief Justice referred to a “misconception in the minds of people regarding supremacy of parliament,” adding that the Supreme Court is empowered “to strike down any legislation which encroached upon the basic rights of the citizens.”

The framers of the US Constitution anticipated that the personal ambition of officeholders would lead to attempts to encroach on the powers of other institutions. This led to the implementation of a complex system of “checks and balances” to ensure that no one institution could assert itself as supreme to any other.

To maintain stability, governments must follow rules and procedures written for institutions, not individuals. Asif Zardari will not be president forever, nor is Iftikhar Chaudhry Chief Justice for life. As Pakistan navigates current controversies, officials from all branches of government should look for solutions that will hold up no matter who is President, Prime Minister, or Chief Justice.

Pakistan’s Institutional Battles: Coups and Continuity

Raja Pervaiz Ashraf

Pakistan’s Prime Minister-elect, Raja Pervaiz Ashraf
 

The past few weeks have been been a tumultuous time for Pakistani democracy. Even Deputy US Ambassador to Pakistan Richard Hoagland Tweeted last week that, “it’s getting confusing”. But as people try to make sense of rapidly changing events, it’s important not to miss the forest for the trees. Despite what seem like inscrutable events taking place, it’s what isn’t happening that points to democratic progress in Pakistan.

After convicting the Prime Minister of contempt for “ridiculing the judiciary” (a claim that did not appear in the charge sheet against the Prime Minister) and allowing the Speaker of the National Assembly to rule the Prime Minister eligible to continue in office, Pakistan’s Supreme Court made an about face and ordered the Prime Minister be retroactively disqualified from office.

The Wall Street Journal called the decision, “Islamabad’s Judicial Coup,”, but Pakistan’s governing party took the announcement in stride, quickly announcing the nomination of Makhdoom Shahabuddin, a former minister, to replace Yousaf Raza Gilani as Prime Minister. The judiciary respond by issuing an arrest warrant for Mr. Shahabuddin and the former Prime Minister’s son at the request of a military-run anti-narcotics agency, further enflaming fears that the military is using the courts to wage a proxy war against the democratically-elected government.

Unlike his predecessor, however, President Zardari has not responded by attempting to remake with more pliant justices. Instead, new names were floated and, at the time of writing, Pakistan’s parliament assembled on Friday to choose a new Prime Minister from five candidates representing both coalition and opposition parties. While the political drama is likely to continue even after the new Prime Minster is sworn in, it appears that some of the worst fears are unlikely to come true.

After decades of interruption by military coups, Pakistan’s democracy finds its institutions struggling to assert themselves in a power framework that is still being defined. What is extraordinary is not that institutions are vying for power, but that the democratically elected government has remained more or less intact during the process. Rather than being a sign of a failing democracy, this should be seen as a sign of a maturing one.

We in the US are no strangers to institutional power struggles – even messy ones. President Bill Clinton was convicted of contempt of court charges in 1999 and faced impeachment proceedings in Congress. He was ultimately acquitted by the Senate and served out the remained of his term. Congress has been known to engage in the practice of “jurisdiction stripping” – inserting language into bills that limits the judiciary’s power to hear certain cases or review certain actions by other branches. And just this week, a House committee recommended that Attorney General Eric Holder be held in contempt for failing to turn over documents after President Obama asserted executive privilege in the matter.

Americans find such power struggles frustrating, but we don’t expect them to topple the entire system. Pakistan, of course, does not have over 200 years of democratic wrangling behind it to ensure a similar sense of comfort with political squabbles – more often, institutional battles are solved at gunpoint. Today, though, the level of military involvement in events appears to be subdued, and despite several false alarms, the government elected by the people in 2008 remains in place, even holding scheduled Senate elections earlier this year without major incident. Pakistan’s ability to weather the current political storm without sinking will be an important sign of democratic maturation. The government’s responses to institutional pressure so far give ample reason to believe democracy in Pakistan is here to stay.

Questions Surround New Supreme Court Order Disqualifying Prime Minister

Yousuf Raza Gilani

The Supreme Court of Pakistan removed the Prime Minister in what is known as a “short order” – essentially a court order lacking a full explanation. These orders often begin, “For reasons to be recorded later…” – a practice that seems the beg for abuse and controversy – and then proceed directly to ordering some specific action on the part of an individual or institution. In this case, though, the specific action was not given until almost two months later – and made retroactive.

On April 26, the Supreme Court issued an order “for the reasons to be recorded later” that found then Prime Minister Yousaf Raza Gillani “guilty of and convicted for contempt of court.” The Supreme Court did not declare the Prime Minister disqualified from office and sentenced him to a symbolic detention of about 30 seconds.

The Supreme Court having chosen not to disqualify the Prime Minister, the issue was then taken up by the Speaker of the National Assembly, Dr. Fehmida Mirza, who ruled that Mr. Gilani was not disqualified. That was last month.

Today, nearly two months after the Supreme Court issued its controversial conviction, a new short order, “for reasons to be recorded later,” was issued by Chief Justice Iftikhar Chaudhry – this time declaring that “Syed Yousaf Raza Gillani has become disqualified from being a Member of the Majlis-e-Shoora (Parliament)…on and from the date and time of pronouncement of the judgement of this Court dated 26.4.2012…”

This raises several very interesting questions. If the Prime Minister was disqualified pursuant to the Supreme Court’s order on April 26, why did they wait until June 19 to say so? Some have suggested that the Supreme Court was giving the Prime Minister the opportunity for appeal, but this is doubtful for a number of reasons: One, the Supreme Court could have declared the Prime Minister disqualified and then stayed the order pending appeal. But more to the point, to whom would the Prime Minister have appealed? The original order was given by a 7 member bench of the Supreme Court – there was no higher authority to appeal to.

Then there is the matter of the ruling by the Speaker of the National Assembly. If the Supreme Court had determined that Mr. Gilani was disqualified as of April 26, why did they allow Dr. Mirza to proceed with deliberations and a ruling on Mr. Gilani’s status as parliamentarian? If the Supreme Court believed that Dr. Mirza did not have the authority as Speaker of the National Assembly to issue such a ruling, why did they not issue an injunction stopping the Speaker from carrying out the act?

While these questions remain unanswered, at least until the Supreme Court delivers more than the two pages made available today, they suggest very troubling possibilities. By allowing Mr. Gilani to continue serving as Prime Minister for months, the Supreme Court has created a policy nightmare for Pakistan. Making the disqualification retroactive to April 26 means that any decisions made by the government since are effectively nullified. Pakistan has, essentially, been operating without a government for over 8 weeks.

Moreover, by allowing the Speaker of the National Assembly to deliberate and issue a ruling without comment, only to nullify that decision weeks later, the Supreme Court has undermined the authority of parliament and created confusion about fundamental issues of separation of powers and constitutional authority. What government official can now carry out their duties without the fear of Supreme Court action if the Chief Justice does not like the outcome.

This gets to what is perhaps the most troubling question of all – would the Supreme have issued this new order had the Speaker of the National Assembly herself disqualified Mr. Gilani? In other words, is Pakistan’s Supreme Court acting pursuant to due process or desired outcomes?