Tag Archives: Supreme Court

Pakistan’s Progressive Voices Refuse To Be Silenced

Pakistan has taken several important steps forward over the past four years. From President Zardari’s willingly devolving powers that had been consolidated under past military dictators to an elected parliament completing its full tenure, there are, as Peter Bergen recently noted, many reasons to be hopeful about Pakistan’s future. But despite Pakistan’s overall positive trajectory, there remains a disturbing trend that threatens the promise of a peaceful, prosperous, and democratic Pakistan – the ongoing attempts to silence Pakistan’s progressive voices.

Continue reading

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.

Justice Louise Arbour Concerned About Direction of Pakistan’s Supreme Court

Justice Louise ArbourJustice Louise Arbour has a distinguished career devoted to promoting the principles of justice. Currently serving as the President of the International Crisis Group, Justice Arbour is the former UN High Commissioner for Human Rights, a former justice of the Supreme Court of Canada and the Court of Appeal for Ontario and a former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda. As such, she knows a thing or two about the importance of an independent judiciary in developing countries and emerging democracies. That’s why, when Justice Arbour expresses concerns about the looming constitutional crisis in Pakistan, her concerns merit serious consideration.

An ardent supporter of Pakistan’s 2007 “Lawyer’s Movement” to restore judges deposed by Gen. Musharraf, Justice Arbour had hoped to see a new era for the Court, one that broke with its past of supporting military dictators and their mangling the Constitution and the rule of law. Today, she fears that those same justices have become “intoxicated with their own independence,” and that the current direction of Pakistan’s Supreme Court Justices threatens to upend the very democratic order that restored them to the bench.

Speaking to a crowded auditorium at the Woodrow Wilson Center in Washington, DC, Justice Arbour noted that the current tension between Pakistan’s Supreme Court and its elected officials might seem like a political soap opera were it not for Court’s history of collusion with the military to suppress democracy. Judges “who took an oath to a military dictator are not well placed to make the decision” to remove democratically elected officials, she observed, referring to Chief Justice Iftikhar Chaudhry’s 1999 oath under Gen. Musharraf’s Provisional Constitutional Order. While not inevitable, Justice Arbour said, it is possible that Pakistan’s Supreme Court could end up dissolving the democratically elected government with the help of the military, putting in place an extended caretaker government in what would be, for all intents and purposes, another coup.

During her visit to Pakistan, she assured the room, she met with no government officials. Her interest was in the views of the legal community, whom she found deeply divided, seemingly on political lines. This troubled the former Justice, who worries that Pakistan’s Supreme Court has become increasingly politicized, threatening its credibility. She pointed to the memo commission, which she said “reflected very poorly on the judiciary,” and added to the appearance of growing politicization.

The present case, in which the Supreme Court has ordered the Prime Minister to write a letter to Swiss authorities requesting that criminal cases be reinstated against the President, adds to the appearance of an increasingly politicized judiciary. From a legal perspective, the issue centers on one of separation of powers. In fact, Pakistan’s Chief Justice has repeatedly stated recently that “parliament is not supreme.” In questions such as these, where the Supreme Court has a vested interest in the outcome, Justice Arbour suggests that it is all the more important that court show self-restraint and frame its decisions in a way that “advances the authority of all institutions,” not only its own.

Justice Arbour was also clear that her concerns about the Supreme Court’s actions do not imply a disinterest in accountability. There is a misconception that presidential immunity is unprecedented, she explained, reminding the audience that former French President Nicolas Sarkozy enjoyed immunity from prosecution during his term in office and, now that he is out of office,  faces possible charges for campaign finance violations.

Article 248 of Pakistan’s Constitution, which grants temporary immunity to Pakistan’s President, Prime Minister, and Governors, is clearly worded, said Justice Arbour; and that privilege exists for a reason – to allow government officials to perform their official duties without distraction. Asked by a member of the audience whether President Zardari should be subject to accountability, Justice Arbour responded that all officials should be subject to accountability. The issue is not one of accountability, but timing. Rather than wait six months for Pakistan’s next general elections, she said, the Supreme Court is unnecessarily undermining not only the present government, but the democratic system, which is weak from decades of neglect under military regimes.

Justice Arbour is not the only former Supreme Court justice to express grave concern about the direction of Pakistan’s Supreme Court. Last month, Justice Markandey Katju, a former member of the Supreme Court of India, wrote a detailed explanation for his concern that Pakistan’s Supreme Court is “playing to the galleries and not exercising the self-restraint expected of superior courts.”

As a growing chorus of international jurists expresses concerns about the actions of Pakistan’s Supreme Court, we hope that Pakistan’s Honorable Justices will consider Justice Arbour’s words carefully if for no other reason than their own self interest. Historically, Pakistan’s courts suffered greatly under undemocratic regimes. Should Pakistan’s democracy become derailed as a result of the present crisis, there’s no reason to believe the judiciary would fare better this time around.

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.

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?

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.

Mukhtar Mai’s search for justice continues

Mukhtar Mai case protest

In 2004, TIME magazine reported that the brutal gang rape of Mukhatr Mai “sent shock waves across Pakistan.” For her strength in standing up to challenge the practice of honor rapes and killings in rural villages, the magazine named Mukhtar Mai one of Asia’s Heroes. New York Times columnist Nicholas Kristof dubbed her, “The Rosa Parks for the 21st Century”. Seven years later, the latest chapter in Mai’s story has come to a close, and justice remains elusive.

Last week, Pakistan’s Supreme Court ruled in favor of the men who gang raped Mukhtar Mai, freeing all but one. Human rights groups in Pakistan are publicly speaking out against the verdict.

They expressed concern over the long delay in dispensation of justice. “The victim was raped in 2002 on the orders of a local panchayat. The Chief Justice of Pakistan took a suo motu notice of the case in 2005. And despite the intervention it took more than six years to come up with this decision, which is a source of concern for the women of Pakistan.”

They feared that the decision might further strengthen anti-women parallel legal and judicial systems and mechanisms in the country. “The criminal justice system too is not pro-women and is patriarchal in nature. Impunity is the order of the day.”

But Mukhtar Mai is not giving up. Her legal counsel, Barrister Chaudhry Aitzaz Ahsan, announced plans to file a petition seeking review of the judgment, and Pakistan People’s Party parliamentarian and presidential media advisor Farahnaz Ispahani Tweeted that President Zardari was personally requesting the government look into the case.

Sadly, the media response to the Supreme Court’s decision has taken a back seat to headlines defending Pakistan’s spy agency. Some of Pakistan’s more liberal journalists have spoken out against the injustice, lambasting Pakistan’s Supreme Court for “rendering a heinous crime such as gang rape almost unpunishable.” But much of the more conservative Urdu media has avoided in depth discussion of the issue. In response to one notorious case, Pakistani journalist Sana Saleem wrote an open letter to popular talk show host Mubashir Lucman for his harsh, unsympathetic treatment of Mukhtar Mai on his show.

If Pakistan’s media hasn’t paid much attention to Mukhtar Mai’s case, however, Pakistan’s government has. Last week, President Zardari instructed Interior Minister Rehman Malik to “take every measure to ensure protection to Mukhtaran Mai.”

In response to the Supreme Court’s decision, politicians have spoken out against violence against women and pledged to provide security and legal aid to Ms. Mai as well as to women across the country.

Pakistan People’s Party (PPP) Women Wing Sindh Information Secretary, Sharmila Farooqui, said here on Saturday that the government is committed to provide full protection and justice to needy women in Karachi and other parts of the country, besides providing legal assistance to rape victim Mukhtaran Mai in her decision to file a review petition in the court.

“Women in Karachi are performing their duties with dignity and courage after the government enacted the Criminal Law (Amendment) Act and passed the Protection against Harassment of Women at the Workplace Bill last year. The government has also established a women police station in Karachi and more such stations will be established across Sindh,” she said in a statement.

This is the root of Mukhtar Mai’s cause – educating people about the rights of women, protecting women who are threatened by violence, and working to change both attitudes and outcomes in a manner that ensures greater respect and justice for women in Pakistan. Working together, government leaders and human rights organizations have the opportunity to provide a brighter, safer future for Pakistani girls and women. They deserve our support.

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.