Tag Archives: Judiciary

What the contempt conviction means, and what it doesn’t

Pakistani Prime Minister Yousuf Raza Gilani leaving court

I have refrained from writing about the recent conviction of Pakistan’s Prime Minister on contempt of court charges because the case, from my perspective – as well as many whom I’ve talked with – is a bit confusing. Unfortunately, that hasn’t stopped much of the mainstream media from publishing alarming reports that could easily misguide people into thinking that the case means more than it does.

The day the Court announced its decision, CBS News declared that, Pakistan’s government “was thrown in turmoil…after Prime Minister Yousuf Raza Gilani was convicted on a contempt-of-court charge by the country’s Supreme Court,” and went on to quote anonymous western diplomats in Islamabad predicting that, “early elections are a very real possibility because of this turmoil.”

A few days later, however, both houses of Pakistan’s parliament passed resolutions voicing “complete confidence” in the embattled Prime Minister. Opposition politicians continue to try to make hay of the Prime Minister’s conviction, but the election of Pakistan People’s Party (PPP) candidate Usman Bhatti to a seat deep in the constituency of the opposition Pakistan Muslim League – Nawaz (PML-N) suggests that Pakistani voters do not see the case as particularly damning.

Other news reports exaggerate not the fallout from, but the nature of the conviction. Foreign Policy magazine published an otherwise informative analysis by AEI’s Reza Nasim Jan with the glaringly misleading headline, “Pakistan’s Federal Felon”.

While the Supreme Court’s case has created confusion even among Pakistani legal experts, there is significant reason to believe that the case is not as severe as opposition politicians may be trying to make it out to be.

In its order, the Supreme Court did not invoke Section 6 of the Contempt of Court Ordinance 2003 which specifically defines the requirements for criminal contempt. In fact, reading Section 6, it’s pretty clear why – it doesn’t appear to apply to the Prime Minister’s case.

The Prime Minister was charged with a violation of Article 204(2) of the Constitution read with Section 3 of the Contempt of Court Ordinance 2003. Together, these broadly-worded laws basically define ‘Contempt of Court’ as anything that a Judge deems contemptuous – political cartoonists beware. The Prime Minister was punished under Section 5 of the Contempt of Court Ordinance 2003, which provides for a fine and jail time. His actual sentence was about 30-seconds.

Additionally, prior to the Supreme Court announcing its decision, Pakistani media reported that the Prime Minister had been charged with civil contempt:

The bench of the Supreme Court had charged the prime minister with civil contempt, instead of judicial or criminal contempt. The absence of the latter two, according to legal experts, meant that the provisions of Article 63(1 g or h) of the Constitution may not apply and hence the prime minister would not be disqualified from being a parliamentarian if convicted.

It is also noteworthy that, in the Supreme Court’s order, the justices wrote that “the findings and the conviction for contempt of court recorded above are likely to1 entail some serious consequences in terms of Article 63(1)(g) of the Constitution…” As legal analyst Waris Husain noted in Dawn,

The Court used the language “likely to entail” because the right to terminate parliamentarians’ tenure is constitutionally vested in the Speaker of the National Assembly and the Election Commission. Under Article 63 (2), once the Speaker has received notice of a parliamentarian’s conviction, he/she may forward the issue to the Election Board within 30 days which must make a decision within 90 days. This process is the exclusive duty of the legislative department, rather than the Court. Therefore, the process to disqualify the prime minister has only just begun.

Without doubt, the conviction was a blow to the Prime Minister and an unwanted distraction for the governing coalition – especially as negotiations with the US continue. But, as pointed out by the State Department, “this as an internal domestic issue…and is being addressed in a legitimate and democratic fashion by the Pakistani judicial system.”

Sensational and misleading media reports not only add to confusion about the issue in the US, they can add to confusion in Pakistan as well, unnecessarily calling into doubt the independence of Pakistani institutions and indirectly interfering with the democratic process.

Pakistan’s Supreme Court rendered its decision in the Prime Minister’s case, and it chose not to remove him from office. The Prime Minister has the right to appeal, and the decision of whether he will remain Prime Minister rests with the democratically elected representatives of the people of Pakistan. The process may seem noisy and confusing to us in the US, but – so far – it appears to be working.

1 Emphasis added

Q&A: Contempt Charges Against Pakistan’s Prime Minister?

Pakistan's Prime Minister Yousaf Gilani

The latest battle between Pakistan’s elected officials and its judiciary heated up this week when the Supreme Court announced plans to indict the Prime Minister on charges of contempt of court. We wanted to find out what’s behind the latest battle, so we asked comparative law specialist and features writer for Dawn, Waris Husain, for some insight and he was gracious enough to accomodate us.  

Q: The New York Times reported on Thursday that Pakistan’s Supreme Court has announced plans to charge the Prime Minister with contempt of court. What did the Prime Minister do, exactly?

A: The Supreme Court held in 2009 that an ordinance passed by then President Pervaiz Musharraf which gave immunity to many political figures was unconstitutional. Since the decision was handed down, the executive branch dragged its feet in implementing the court’s holding overturning that the National Reconciiliation Ordinance (NRO). President Asif Ali Zardari was one of the individuals who benefitted from the ordinance as he had been facing criminal cases in Pakistan as well as a corruption case in Switzerland. The court has continually asked the Prime Minister and other individuals to follow up with the Swiss case against President Zardari by writing a letter to Swiss authorities requesting that the case there be reinstated. The Prime Minister has not written this letter, and thus he is being held in contempt of court for not executing the court’s order.

Q: The Prime Minister’s lawyer, Aitzaz Ahsan, made an interesting observation recently. He said the Prime Minister is a government official acting under the advice of his counsel. If government officials can be held in contempt for following the advice of their lawyers, what sort of precedent does that set?

It certainly can set a dangerous precedent. In the U.S., several Supreme Court decisions allow for a president to be immune from prosecution so long as he acted in good faith at the behest of his counsel. This is to allow the President, who has to make very complex decisions at a high frequency, the ability execute the functions of his job without worrying about pending litigation. This principle is taken far further by the Pakistani constitution which guarantees absolute Presidential Immunity in Article 248. The “legal advice” Mr. Ahsan was referring to was that the Prime Minister could not write a letter to the Swiss authorities about Zardari because such an act woud violate the immunity the President enjoys.

However, the real issue at the core of the court’s order against PM Gilani is the question of who is the final judge of the constitutionality of an act. Though Ahsan raised the issue of legal counsel, the tribunal responded that Gilani could have disregarded any advice that was contrary to the court’s order. Throughout its decision, the court relies on its power of judicial review to be the ultimate decider of the constitutionality of laws, and they implicitly argue that the Executive needs to implement that decision without critically examining its legality.

What about the government’s claim that the president enjoys immunity from prosecution during his term in office? The court seems to be questioning that, but highly respected Pakistani jurists seem puzzled by this. The wording of the Constitution does seem pretty clear.

The American courts developed presidential immunity over time, finding that it was necessary in order to give the President the ability to carry on all the responsibilities he has been constitutionally tasked with. As I said earlier, Pakistan is unlike the U.S. because its constitution has an article guaranteeing absolute immunity to a sitting head of state – and the language is clear. Therefore it is striking to see the court focusing so aggressively on Gilani’s inaction in the Swiss case where the President enjoys immunity. This is partly because the general attitude of the court has been one of growing frustration at the lack of implementation of its orders by the current administration. In many ways, the court feels its credibility is being attacked by Gilani refusing to send the letter, even though doing so would seemingly violate the presidential immunity clause in the constitution.

An article published last month in The Express Tribune (The New York Times’ sister newspaper in Pakistan) reported that the so-called ‘Swiss cases’ could not be re-opened. In fact, a 2008 Reuters report quoted Geneva’s chief prosecutor, Daniel Zappelli, saying that he had no evidence to bring Asif Zardari to trial.

Yes, in fact Ahsan reported to the court’s dismay that he had confirmation from the Swiss authorities that they would not pursue the cases against Zardari.

Some argue that many, if not most, of the charges brought during the 1980s and 1990s were politically-motivated – government officials using the courts as a political weapon against their opponents.

I am not certain about the numbers, and others are far more qualified to speak on that issue than myself. However, from a legal perspective, the court has a valid point in exercising its judicial review over the NRO. The decision to grant a pardon or excuse an individual should only come after a judicial body has held some sort of hearing on the case. The NRO essentially erased all charges that existed without allowing for review by the proper judicial bodies as to whether the charges were legitimate or not – which is the duty of the courts.

It could be that many of the individuals who were accused or convicted of crimes before the NRO were actually innocent and that the charges were politically motivated, but the court attacked the random selectivity of the process. Essentially Musharraf was handing get-out-of-jail-free cards to the politicians he needed to ‘reconcile’ with, and those individuals distributed the cards to their supporters. It is possible that many of the individuals were completely innocent; however, the right to determine which were innocent and which were guilty is the right of the court, not the executive.

There were over 8,000 individuals who received amnesty under the NRO, but the only case that seems to be given any serious consideration is the one against the president. Is this just because his is a high-profile case, or is the court targeting him specifically?

I believe the court is targeting Zardari specifically, and it is also disregarding the thousands of other pending criminal cases that need to be resolved. Some will claim this had to do with a personal enmity between Zardari and Chief Justice Chaudry, as the former hesitated in reinstating the Chief Judge after Dictator Musharraf was removed. Others will claim that the court is merely attempting to assert its role in the future of the nation, and is biting back against the non-cooperation of the ruling administration.

The timing is also interesting. With Senate elections expected next month and general elections within the next year, many are asking, why now? Why not let the people have elections without tarring politicians with legal brushes in drawn out court cases.

There seems to be a perfect storm brewing with regards to the coming elections. Elections should be entered into with all the institutions working together, rather than fighting and impugning the character of potential candidates because this would not benefit Pakistan’s democratic future. However, the NRO decision was passed three years ago, and so the Supreme Court has been awaiting an adequate response from the government since then, and has not been satisfied. Much of this is due to Zardari and Gilani’s own strategy of avoiding the implementation of the court’s decision, and making the court play the waiting game. So now that the court feels that its credibility and legitimacy is on the line, it is unwilling to pull back from the confrontation now.

Pakistan’s Church Committee Opportunity

CIA Director William Colby testifying before the Church CommitteeTwo Supreme Court cases have dominated headlines in Pakistan recently, the judicial commission investing claims about an unsigned memo, and the ongoing hearings about decades old corruption cases against president Asif Zardari. But there is a third case set to begin next month that could have equally important ramifications for democracy and justice in Pakistan. Unlike the better-publicized cases which center on alleged acts by government officials, this lesser reported case centers on allegations of election interference by the country’s premier intelligence agency, the ISI. And the outcome of this case could significantly strengthen the democratic process.

The case, alternately known as the Asghar Khan case (after the former Air Marshal who originally filed the case in 1996) and the Mehran Bank scandal (after the bank where bribe money was kept), centers on allegations that Pakistan Army and ISI officers bribed politicians, journalists and public groups in an effort to prevent the re-election of Pakistan People’s Party (PPP) candidates in the 1992 elections.

Both Altaf Hussain, leader of the Muttahida Qaumi Movement (MQM) party and Chaudhry Shujaat Hussain, a former Prime Minister from the Pakistan Muslim League – Quaid (PML-Q) party recently admitted to being offered millions by the ISI to oppose the PPP, though both claim they refused the offers. But others are alleged to have accepted the bribes. According to former Director General of the ISI Asad Durrani, funds were distributed to the following groups and individuals:

Nawaz Sharif got Rs3.5 million; Mir Afzal Khan Rs10 million; Lt. Gen. Rafaqat got Rs5.6 million for distribution among journalists; Abida Hussain Rs1 million; Jamat-e-Islami Rs5 million; Altaf Hussain Qureshi Rs500,000; Ghulam Mustafa Jatoi Rs5 million (Sindh); Jam Sadiq Rs5 million (Sindh); Muhammad Khan Junejo Rs250,000 (Sindh); Pir Pagara Rs2 million (Sindh); Maulana Salahuddin Rs300,000 (Sindh); different small groups in Sindh Rs5.4 million and; Humayun Marri Rs1.5 million (Balochistan).

While such blatant electoral interference may seem shocking, such acts were not previously unheard of in Pakistan. In 2009, Gen. Hamid Gul admitted to having organized a political party, the Islami Jamhoori Ittehad (IJI), while he was head of the ISI in 1988 as part of his efforts to prevent the PPP from winning a decisive electoral victory. According to the former Pakistani spy chief, under his leadership the ISI actively supported politicians “who had affiliation with the GHQ (Pakistan’s military headquarters)” against the PPP.

Nor did the ISI’s political machinations end with the turn of the century. Another former ISI official, Maj. Gen. Ehtesham Zamir, told the media that he had been personally responsible for manipulating elections in 2002 at the direction of Gen. Musharraf.

After Watergate exposed possibile illegal intelligence activities by the CIA and FBI, the Senate convened the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities to investigate how American intelligence agencies were operating. Chaired by Senator Frank Church, this committee has come to be known as the Church Committee. The committee’s work resulted in the Foreign Intelligence Surveillance Act and the Foreign Intelligence Surveillance Court to provide guidelines and civilian oversight to American intelligence agencies.

Americans tend to think of intelligence agencies as working at the behest and under the oversight of their respective governments, as if all nations operate in a post-Church Committee environment. But the relationship between Pakistan’s civilian government and its ISI is quite different. In fact, in many ways the ISI operates not just independently of civilian oversight, but often in in direct opposition to it.

Shortly after Pakistan’s present civilian government took power in 2008, Prime Minister Yousuf Gilani announced that control of the ISI would be shifted to the portfolio of the civilian Interior Ministry. It was only a matter of hours before Army spokesman Major General Athar Abbas told the media that no such change would occur. The civilians promptly retracted the decision.

As Pakistan prepares for its next general elections, the cloud of past electoral manipulation by the ISI continues to cast a shadow over the democratic process. Former cricketer Imran Khan’s party is openly accused by the PML-N of receiving funding and logistical support from the ISI, and Pakistani news reports suggest that “more than half of the PTI top leadership now comprises either retired military, ISI officials or those politicians known as men of the establishment”, lending to the appearance that Khan’s Pakistan Tehreek-e-Insaf party is the latest in a long line of ISI front parties. Imran Khan insists that his is a populist, not an establishment party, but these rumors continue to surround his sudden rise in popularity.

Next month, Pakistan has the opportunity for its own “Church Committee” moment, ensuring that the next elections are carried out without freely and fairly, and without interference from the ISI or any other institution. With the Supreme Court, and not the parliament, overseeing hearings into the ISI’s interference in past elections, the process has the potential to avoid being politicized. The Chief Justice, who currently enjoys a high approval rating in Pakistan, has the opportunity to set clear limits for the involvement of military and intelligence agencies in political affairs, and to establish a transparent process of oversight to ensure compliance.

The Court’s guiding principle should be, as always, to allow the people of Pakistan the opportunity to choose their own leaders and define their own future without interference by any military or intelligence agency, foreign or domestic. By establishing an effective oversight regime for American intelligence agencies, the Church Committee strengthened the democratic process in the United States. Pakistan deserves no less.

Nixon vs. Zardari: Presidential Gates Abound

Waris HusainMany Americans can recall the political turmoil that came with the Watergate Scandal in 1972, but few understand its correlation to events currently unfolding in Pakistan. Just as Richard Nixon was brought down from the highest seat of power through allegations of corruption, President Asif Ali Zardari is facing threats from political opposition and the Supreme Court over his involvement in Memogate. However, the major difference between the travails of Nixon and Zardari is the Pakistani military, which has historically stood as an unchecked political force willing to sabotage democratic regimes. Thus, before the U.S. turns away from Pakistan completely, Americans should understand differences between Memogate and Watergate, in order to understand the ramifications of the current controversy embroiling the nation.

The Memogate controversy has its origins in the aftermath of the Osama Bin Ladin raid, where accusations were lodged by the U.S. against the Pakistani Army and its intelligence agency, the ISI, for harboring Bin Ladin. Fearing that the military’s culpability in hiding Bin Ladin would be revealed, the military leadership purportedly asked for permission from various Arab monarchies to perform a coup.

Asif Ali Zardari purportedly concluded that the military had decided to remove him from power, and it is alleged that he had conversations with Pakistan’s Ambassador to the U.S., Hussain Haqqani. These conversations allegedly resulted in a memo being written and sent to the U.S. government asking for help in stopping a potential military coup. In exchange for the American support, the memo promised that Pakistan’s civilian government would work more aggressively to pursue a wide range of American interests.

Soon, the memo, its contents, and its source were revealed by Manzoor Ijaz, who allegedly acted as a liaison between the U.S. and Pakistan government. Hussan Haqqani resigned from his post and returned to Pakistan, and the Pakistani Parliament took notice of the issue. Concurrently, the Supreme Court of Pakistan took notice, asking petitioners to explain their claims and under what basis the court had jurisdiction. While direct allegations against Zardari or Haqqani have not been leveled by the Court, the Court’s order did note possible charges of treason for guilty parties, and Haqqani has been placed on the Exit Control List, prohibiting him from leaving the country.

“If the facts were the same in Watergate, and Nixon was caught trying to stave off a coup by the CIA, he would be lauded as a national hero...”Though the Pakistani Supreme Court has drawn on the case of Nixon v. U.S. as legal precedence for launching an inquiry on the role of the President in this controversy, one should step back and compare the acts of Zardari and Nixon. In Watergate, President Nixon and his aides hired burglars to break into a political rival’s headquarters and illegally wiretap them. Nixon and his associates thereafter tried to cover up their involvement in the scandal and paid “hush money” to the individuals arrested.

On the other hand, Zardari, an elected president, was attempting to stop an unconstitutional military coup from taking place. Rather than holding the military officers who conspired against the civilian government responsible, the media and courts seem to blame Zadari for continually attempting to ‘sell-out’ to the Americans. If the facts were the same in Watergate, and Nixon was caught trying to stave off a coup by the CIA, he would be lauded as a national hero, rather than face treason charges, as is the former Ambassador Haqqani and possibly President Zardari.

However, politics and law in Pakistan is always subject to manipulation by the Army and ISI, and Zardari knows this. This is one of the many reasons why the President refused to answer the court’s request, claiming absolute sovereign immunity. Under Article 248 of Pakistan’s Constitution, a sitting head of state is immune from criminal prosecution. Though President Nixon did not enjoy the same constitutional guarantee of immunity, the U.S. Supreme Court had granted sovereign immunity to Presidents so long as they acted within the scope of their job in good faith. The only way to punish the wrongdoing of a President, either in Pakistan or the U.S., is through impeachment by the legislative branch.

Anticipating the sovereign immunity defense, the Pakistani Supreme Court cited to U.S. v. Nixon in its Memogate order, because, in that case, the U.S. court rejected President Nixon’s blanket claim of immunity. However, it is important to note that the U.S. Supreme Court was not contemplating a criminal prosecution for President Nixon. Prosecutors had already determined that Nixon would enjoy immunity from criminal prosecution while sitting as president, but they were continuing with a case against his aides and required evidence from him. Nixon took the case to the Supreme Court, where he argued that absolute immunity protected him from being forced to produce evidence before the court, which the justices rejected.

In the end, Nixon capitulated to the court, but his resignation came in order to avoid impeachment by Congress, not because of a potential criminal prosecution. However, in Pakistan, it is not clear what the Supreme Court has envisioned for its end-game. The petitioners in the case have justified jurisdiction under Article 5 and 6, which speak to loyalty and treason. The question that must be asked: if the Supreme Court finds that Zardari is guilty of treason, what action can they take?

The American Supreme Court never considered deposing the president or putting him in jail for corruption, as the Constitution assigned this duty to the legislative branch. The same goes for Pakistan, where the Parliament enjoys the exclusive constitutional right to impeach the president, a power which the Supreme Court does not possess.

“Pakistan’s military has always been a looming shadow willing to stunt the growth of democratic governance and snatch up power.”Finally, the consequences of any destabilization of Pakistan’s civilian government are far graver than in America, even in the chaos of the 1970s. Unlike the U.S., Pakistan’s military has always been a looming shadow willing to stunt the growth of democratic governance and snatch up power. There is certainly no love-loss between Zardari’s Administration and the military, especially considering last weeks’ statements by Prime Minister Gilani rejecting the Army’s status as a “state within a state.” Therefore, while the chorus of disapproval for Zardari from political opponents and the Court resembles the sound of democracy, they are all playing the military’s tune. And the Army stands in the wings ready to enjoy the rewards of toppling another civilian government.

In the meanwhile, the United States has halted most of its aid to Pakistan, as trust for the nation is wearing thin from the White House to Capitol Hill. However, before turning a cold shoulder to the nation as a whole, it is imperative to note that it is not democratic institutions which control foreign policy in Pakistan, but the military. Most of what the U.S. bemoans about Pakistan being duplicitous or sabotaging American attempts to reconcile with the Taliban emanate as strategies from the military.

Political analysts have not found a common interest shared by the U.S. and Pakistan because they have failed to delineate the civilian from the military power structures. If one realizes that the U.S. and the civilian government are both being sabotaged by the military, then abandoning the nation completely as an ally seems impractical. It is through comparisons like Watergate and Memogate that one understands the benefit of a having democracy free from the will of an unelected army. But more importantly, it should bolster America’s resolve to contribute civilian aid to a government in crisis, not because it is the most capable or most transparent government in history, but because the other option has been tried before and is so much worse.

The writer holds a Juris Doctorate in the US and is a researcher on comparative law and international law issues.

State Dept: US Monitoring ‘Memogate’ Hearings

State Department spokeswoman Victoria Nuland told reporters today that while the US considers the issue dubbed “memogate” an internal issue for Pakistan, they are monitoring the situation closely and expect Pakistan’s former Ambassador to be “accorded all due consideration under Pakistani law and in conformity with international legal standards.”

QUESTION: On the subject of Pakistani ambassadors to the U.S., is there anything more than the very little that you’ve had to say this week about former Ambassador Haqqani?

MS. NULAND: Well, just to say again what we’ve been saying, but perhaps a little bit more clearly, while it’s obviously an internal matter for Pakistan and we respect Pakistan’s constitutional and legal processes, we expect that any process for resolving the matter of Ambassador Haqqani will proceed in a way that is fair, that’s transparent, that is as expeditious as possible. We also expect that Ambassador Haqqani will be accorded all due consideration under Pakistani law and in conformity with international legal standards. And we will be watching and monitoring the situation closely.

Husain Haqqani, Lawyer Threatened In Pakistan

Pakistan’s former Ambassador to the US, Husain Haqqani, had his passport seized and is restricted from leaving the country. An investigation into accusations that he sought US help to avert a military coup has bypassed all preliminary hearings and is being taken up directly by Pakistan’s Supreme Court – an institution that many fear has itself been working to unseat the democratically-elected government.

Today, Husain Haqqani is receiving credible death threats, as are his lawyer, sympathetic journalists and public supporters. Coming so soon after the assassinations of Gov Salmaan Taseer, Minister for Minorities Shahbaz Bhatti, and journalist Saleem Shahzad some fear a systematic effort is underway to silence critics of Pakistan’s military and intelligence agencies.

Ambassador Haqqani’s wife, Pakistani parliamentarian Farahnaz Ispahani, spoke with Wolf Blitzer recently to explain the gravity of the situation in Pakistan, and what it means for her husband’s safety and basic human rights.

US Should Focus on Pakistan’s Civilian Leadership

Asif Zardari meeting with Barack Obama

This week’s visit to Pakistan by Chairman of the US Joint Chiefs of Staff Admiral Michael Mullen and the resulting public statements about cooperation in the fight against militant groups along Pakistan’s Western border has once again highlighted the extent to which US-Pakistan relations continue to focus on military-to-military dialogue. While close military cooperation against extremist groups requires military-to-military dialogue, the US must be careful not to weaken the authority of Pakistan’s civilian government by ignoring Pakistan’s civilian leadership.

An essay by Aqil Shah in the May/June 2011 issue of Foreign Affairs, “Getting the Military Out of Pakistani Politics” makes a strong case that the US should make a concerted effort to further shift its negotiations with Pakistan from a military-to-military model to one that focuses on strengthening the authority of the civilian government.

Pakistan is unlikely to collapse, but the imbalance of power between its civilian and military branches needs to be addressed if it is to become a normal modern state that is capable of effectively governing its territory. For its part, the United States must resist using the generals as shortcuts to stability, demonstrate patience with Pakistan’s civilian authorities, and help them consolidate their hold on power.

Where too many analysts express frustration with a perceived slow pace of reforms being implemented Pakistan’s civilian government, Aqil Shah prescribes patience.

If the “third wave” of democratization in the 1970s and 1980s had any lesson, it is that democracy does not necessarily require natural-born democrats or a mythically selfless political leadership. In fact, a strong democratic system can mitigate the baser instincts of politicians. If anything, the experience of countries such as Chile, the Philippines, South Korea, and Thailand in the last few decades shows that the strength and quality of democracy may be linked to the stability of the party system. This is good news for Pakistan.

The author even takes the counterintuitive, but plausible position that the family dominance of Pakistan’s major political parties may actually be a positive.

It is true that Pakistan’s civilian politics is dominated by a few families, namely the Bhuttos, who control the PPP, and the Sharifs, who control the PML-N. In a perverse way, however, the hold of the Bhuttos and the Sharifs on their parties may be one of the main reasons that these parties have survived the military’s divide-and-rule repression and may consolidate democracy in the future.

While political parties should aspire to increased internal democratization, US analysts should consider the role powerful families have played in strengthening our own party system. Pakistan’s politics may be dominated by Bhuttos and Sharifs, but America too has seen its share of Adamses, Roosevelts, Kennedys, and Bushes and, arguably, grown stronger for them.

The notion that military interventions weaken the country’s democratic institutions has even been put forth by Pakistan’s famously adversarial judiciary. Recently, Pakistan’s Chief Justice addressed the long-term effects of military intervention on democratic development.

“When there are political crises, we have witnessed military intervention followed by military rule. Thus, there emerged a vicious circle of brief political dispensation followed by prolonged military rule. This state of affairs brought many setbacks and hampered the process of evolution of constitutionalism and democratic system of governance.”

In spite of the myriad obstacles thrown into Pakistan’s path to democratic modernization – coups, wars, poverty, natural disasters, and terrorism – the Pakistani people have consistently demanded to choose their own leaders and decide their own future. Though the democratically elected civilian government faces a number of challenges both internal and external, it remains resilient.

Today the government continues to work with opposition parties to strengthen the democratic process and address important issues by building coalitions across political parties and working towards consensus solutions. The US should encourage this resilience by acknowledging the centrality of Pakistan’s civilian government in its government-to-government negotiations and providing the space necessary for democratization to firmly take root.

 

Supreme Court Bar Association President Warns of “Judicial Dictatorship”

Asma JahangirThe President of Pakistan’s Supreme Court Bar Association, Asma Jahangir, warned of creeping “judicial dictatorship” and an attitude of intolerance towards other government institutions following a recent Supreme Court decisions. Though the Chief Justice may believe that his court is acting in the best interest of the nation, it is important that he allow other institutions to grow and develop independently.

At issue is the appointment of retired Justice Deedar Shah as chairman of the National Accountability Bureau, the nation’s primary anti-corruption agency. Earlier this month, the Supreme Court ordered Justice Shah to step down following claims by opposition politicians that the retired Justice is a supporter the governing Pakistan People’s Party (PPP). According to Pakistan Muslim League – Nawaz (PML-N) spokesman Siddiqul Farooq, the constitutional requirement for consultation on the appointment “means seeking the consent of the opposition.”

Ms Jahangir does not take issue with the need for a consensus-based consultation, but strongly objects to the court, “as it provided for the chief justice of Pakistan to decide the matter if the leaders of the house and opposition were at dispute over the appointment.” This is not the first time that concerns have been raised over the court’s interference in politics.

The core question is not regarding the jurisdiction of the Supreme Court, but rather what is the effect of extending the sphere of the Court’s influence to matters that belong to the public sphere or other branches of the government. The 18th amendment case is an example of the Supreme Court ruling on (and possibly against) the unanimous consensus of the elected representatives of the people.

Another example is the suo moto (of its own motion) notice taken by Lahore High Court’s Divisional Bench on the high price of sugar in the country. The superior courts in Pakistan are empowered to take suo moto cognizance of any matter the court feels is in public interest. In general terms, this power means the court can take up a matter and rule on it without anyone approaching the court. The court fixed the price of sugar at 40 Pakistani Rupees per kilogram, ignoring the market forces influencing the price. The court’s credentials in economic management are open to debate. Although driven by the best of motives, the outcome was that neither the price nor the supply stabilized. This was question for the economists and Parliament, not for the courts. Similar examples can be found in the Supreme Court declaring the levy of the Carbon Tax as invalid and the annulment of the privatization [PDF] of the Pakistan Steel Mill.

Pakistan’s political parties demonstrated earlier this year that, while negotiations may appear to be messy at times, the parties are learning how to work together to reach consensus on important issues. This learning process must be allowed to continue without interference from the courts. Pakistan’s justices may believe that they are acting in the interests of the people, but by circumventing due process and intervening in political affairs, the courts are stunting the maturation of Pakistan’s democratic system.

Judicial Restraint and Pakistan's Media-Judiciary Nexus

We have already commented on Pakistan’s activist media and its increasingly activist judiciary, and the potential of these two institutions to destabilize Pakistan’s fragile democracy just as it is getting its footing. The recent situation in which Pakistan’s Supreme Court called emergency hearings about a rumor reported on TV channels emphasizes not only the extent of the problem, but the nexus between media and judicial efforts in an ongoing power struggle, and the need for judicial restraint to ensure the democratic process is able to function.

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Greater Threat Than Floods: Pakistan's Judiciary?

The historic flooding that has ravaged Pakistan was considered for a brief period to be a grave threat to the country’s stability. Analysts were unsure if the young democratic government would be able to provide relief and reconstruction services enough to satisfy a panicking public. As the waters subsided, though, the civilian government demonstrated that it could work with the military and the international community to provide services to the people. Today, however, the government faces a possibly greater challenge: continued attacks from the nation’s judiciary.

Pakistan’s judiciary has been threatening to topple the democratically elected government in what many are calling a “coup by other means”. While unprecedented challenges to elected officials have been going on for some time, the courts appear to be determined to continue their attacks.

Since its December judgment striking down an amnesty that shielded President Asif Ali Zardari and other officials from old criminal allegations, the top court has pressed the government on corruption, in particular a dated money-laundering case against Zardari. The stakes have risen as repeated government delays have stoked frustration within the army and the political opposition. Another showdown is scheduled for Wednesday, when the court could hold the prime minister in contempt or indicate that it will reconsider Zardari’s presidential immunity from prosecution.

The standoff has cemented the Supreme Court’s position as a central player in Pakistan’s nascent democracy. But it has also highlighted questions about the solidity of that system.

The Army has largely stayed out of the affair, though as Ahmed Rashid writes for BBC, they would stand to gain the most should the courts succeed in overthrowing the government.

It would be a constitutional rather than a military coup, so that Western donors helping Pakistan with flood relief would not be unduly put off, but the army would gain even more influence if it were to happen.

The courts, for their part, are attacking the government from two flanks – the Supreme Court is threatening to disqualify President Asif Zardari more than two years since his election, and the Lahore High Court – headed by Chief Justice Khawaja Sharif, an ardent supporter of the opposition Pakistan Muslim League – Nawaz (PML-N) – has reinstated an old corruption conviction against Interior Minister Rehman Malik, despite his having been pardoned in May.

According to a growing number of voices in the legal community, the politicization of Pakistan’s courts is a growing problem that threatens the stability of the government and the legitimacy of the nation’s judiciary.

“This judge and the court have embarked upon politics,” said lawyer Khurram Latif Khosa, whose father, also a lawyer, advises Prime Minister Yousaf Raza Gillani. “The lawyers who were chanting slogans in their favor are now burning effigies of their idols.”

Mr. Khosa is not alone in his analysis. His statement echoes the sentiments of Supreme Court advocate and human rights activist Asma Jahangir who wrote in December of last year:

While, the NRO can never be defended even on the plea of keeping the system intact, the Supreme Court judgment has wider political implications. It may not, in the long run, uproot corruption from Pakistan but will make the apex court highly controversial.

Witch-hunts, rather than the impartial administration of justice, will keep the public amused. The norms of justice will be judged by the level of humiliation meted out to the wrongdoers, rather than strengthening institutions capable of protecting the rights of the people.

There is no doubt that impunity for corruption and violence under the cover of politics and religion has demoralised the people, fragmented society and taken several lives. It needs to be addressed but through consistency, without applying different standards, and by scrupulously respecting the dichotomy of powers within statecraft. In this respect the fine lines of the judgment do not bode well.

The lawyers’ movement and indeed the judiciary itself has often lamented that the theory of separation of powers between the judiciary, the legislature and the executive has not been respected. The NRO judgment has disturbed the equilibrium by creating an imbalance in favour of the judiciary.

A few months later, Ms. Jahangir’s tone turned decidedly more dire.

People will soon witness a judicial dictatorship in the country if the judiciary continuously moves ahead in its present direction and then we would forget military and political dictatorships, HRCP chairperson Asma Jahangir said on Wednesday.

By April, even opposition politicians the PML-N were raising concerns that the courts were over-stepping their constitutional role to topple the government.

Raising concerns about the conspiracy, PML-N spokesman and senior leader Ahsan Iqbal has said that a third force wants a clash between the judiciary and parliament.

Iqbal did not name the third force precisely in the same fashion, as Pakistan President Asif Ali Zardari has repeatedly done in recent months, The News reports.

According to another PML-N leader, the Army is trying to pitch the judiciary against parliament and for this purpose it is using certain elements in the media.

Recently, Pakistan’s Chief Justice issued a statement condemning those who are speaking out against perceived judicial overreach.

Ironically, the Chief Justice who is leading this assault on the government, Iftikhar Chaudhry, was himself the victim of extra-constitutional removal by then President and Chief of Army Staff Gen. Pervez Musharraf. Justice Chaudhry was released from detention by Pakistan’s newly elected government in 2008, and reinstated to the Supreme Court in 2009.

Some believe that during the year between Justice Chaudhry’s release from detention and his reinstatement, the judge grew to resent the new government and has taken it upon himself to bring a myriad of legal challenges to its authority. In fact, many of the cases before the court were not brought by any individual or official agency, but were taken up “suo moto” – by the choosing of the Chief Justice, himself.

Regardless of what is motivating the incessant attacks by members of Pakistan’s judiciary, the right to decide the nation’s leadership rests solely with the people of Pakistan. Military generals, religious clerics, and judicial appointees all have a role to play in the success of the nation. But each must work within the bounds of the constitution and the democratic process. Whether led by the military, the Taliban, or an army in black robes, a coup is a coup – and any coup will be devastating to Pakistan’s future.