Confidence in Judiciary Threatened

Tension and confusion is growing over recent behaviour from the Supreme Court, and it may be having unintended consequences for the Chief Justice. While NAB and the courts scramble to avoid the punishments threatened by the Chief Justice, people at home and abroad – including the Swiss judiciary – are questioning the actions of the judiciary.

The Chief Justice has ordered that the Swiss Case against Zardari be re-opened. Only problem is, he is not the Chief Justice of the Swiss judiciary. So he has commanded NAB under severe threat of punishment to write a letter requesting the case to be reopened.

NAB has been holding off on the request as there has been some internal discussion among government officials about whether it is possible to open cases against a sitting President who enjoys immunity under Article 248 of the constitution. But now, faced with immediate arrest and jailing for failure to comply with the Chief Justice’s wishes to move quickly against the President, things have been put into high gear.

The Daily Times has called the courts actions “inappropriate” and said they “make no sense,” arguing that the actions of the Chief Justice and the Supreme Court are eroding confidence in the judiciary.

The court does not seem happy with the criticism it is facing regarding the NRO verdict. Instead of reacting in anger, their honourable lordships should revisit the issue. Frequent use of strong language and high emotions on the part of the highest seat of justice does not give the impression of a cool and collected body taking judicious decisions on sensitive issues. The court seems angrier than is justified by judicial office. This may end up eroding the respect and dignity of the court. The court should exercise judicial restraint, which has been conspicuous by its absence for some time now. The manner in which the court issues its orders and gets them implemented should not be made controversial.

Today, Geneva’s chief prosecutor, Daniel Zappelli told the Reuters news service that he had not received any request to reopen the case, and anyway Zardari enjoys immunity while he is President.

But here is the most interesting part of the interview with the Swiss prosecutor. He said to the news agency, “If he doesn’t have immunity, why don’t they try him in Pakistan?”

This raises the key question of why is it that the Chief Justice is so insistent on trying the Swiss case and not opening some case here. Could it be because the court knows that the President enjoys immunity in Pakistan according to the constitution?

Pakistan should not take dictation from foreign governments or foreign courts. That is the rallying cry that we always hear. But these same people are now demanding that our President be put on trial in a foreign court.

Why the hypocrisy?

International legal analysts have been saying for months now that there is a conspiracy to execute a “Coup by Judiciary.” It looks like the perhaps the conspirators are getting impatient.

The events of this week have been troubling and threaten more than just Asif Ali Zardari. This is what must not be missed in the discussion. Today there is a new report from Moody’s Investors Service that says threats to political stability are harming the national economy and the image of the country in the eyes of the world.

We need to stop this petty political intrigue. We do not have to sacrifice justice, but neither must we sacrifice the nation. Allow the process to move properly and stop trying to rush people into jail, Mr. Chief Justice. You have the opportunity to save the country or destroy it. Please choose to save the country, and stop this madness before it goes too far.

Political Fighting Ruining Pakistan’s Economy

 

A new report from Moody’s Investor Service identifies political fighting and attempts to destabilize the democratic government as the key causes of Pakistan’s economic problems. Moody’s released an updated sovereign rating for Pakistan of B3 which is “quite low” in large part because of political uncertainty. The best solution according to the international economic firm is for opposition parties to allow the democratic government to do its job.

KARACHI: Political wrangling in Pakistan is hampering the government’s ability to focus on economic issues but poses no immediate risk to its sovereign ratings, Moody’s Investors Service said on Wednesday.

Moody’s has a B3 sovereign rating for Pakistan with a stable outlook.

“The government is constrained in its focus on long-term economic issues,” Aninda Mitra, Moody’s sovereign analyst for Pakistan, told Reuters in a telephone interview from Singapore.

“Its political position and legitimacy is constantly being questioned by various quarters, including state institutions as well as opposition political parties, and there is a somewhat tense relationship with the armed forces as well,” said Mitra.

“So all this exhausts the government’s political management capabilities, and limits the government’s focus on major economic issues.”

The government of President Asif Ali Zardari is under pressure from a hostile judiciary, sections of the media and the opposition led by former prime minister Nawaz Sharif.

On Wednesday, a lawyer for the top anti-corruption agency told the Supreme Court that Pakistan was asking Switzerland to reopen corruption cases against Zardari.

A top government official was detained on Tuesday on the orders of the Supreme Court, the first official to face legal action over revived corruption charges after a 2007 amnesty was thrown out in December.

The detention of Ahmed Riaz Sheikh, director general of the country’s top police investigation agency could intensify a destabilising face-off between the judiciary and the government.

“What we would like to see from sovereign credit standpoint is predictability on the political front which provides space to the government to address these economic issues,” said Mitra.

“But the absence of this is already incorporated into the current sovereign rating for Pakistan, so recent developments do not necessarily have a ratings impact as such.”

PROBLEMS INCORPORATED IN RATINGS

Mitra also said that Pakistan’s weak fiscal situation was not a “significant surprise” and was a result of a slow economic recovery, particularly in the large-scale manufacturing sector.

The central bank raised on Monday its fiscal deficit forecast for the 2009/10 (July-June) fiscal year to between 5.0 per cent and 5.5 per cent of gross domestic product (GDP).

The central bank maintained its GDP growth forecast for this fiscal year at between 2.5 per cent and 3.5 per cent.

Pakistan clinched an emergency loan package of $7.6 billion with the International Monetary Fund in November 2008 to avert a balance of payments crisis and the Fund is likely to approve disbursement of the delayed fifth tranche next month.

Mitra also singled out governance issues as a problem, such as accumulated debt by power utilities to Pakistan State Oil which, in turn, has trouble financing oil imports and paying refiners.

“So, it is a sort of a setback, but these are currently encapsulated in the sovereign rating, which at B3 is already quite low,” he said.

There was no likelihood of a ratings downgrade soon, he said.

“In fact, if there are some improvements in these binding constraints, one could actually start thinking about improvements in the sovereign credit rating at some point,” he said.

“But for this to happen, there needs to be a sustained focus on long-term economic issues.”

The Nuclear Deal Option

In a departure from its previous positions, the United States government is now open to the possibility of signing a nuclear deal with Pakistan. This development, fresh from the last week’s Strategic Dialogues, illustrate just how much the US-Pakistan relationship has changed.

Exactly four years ago, the idea of such a deal was latest blog post nipped in the bud , by then-President Bush.  Standing outside the presidential palace, Aiwan-e-Sadr, on March 4, 2006, President Bush clearly stated the US would treat Pakistan differently than it treated India. Whereas the US saw fit to grant one South Asian nation a nuclear deal, lifting a decades-old moratorium on fuel and reactor components, it did not see fit to so with another nation.

Pakistanis bristled at the contradictions in this policy, and rightly so.

Today we are in an entirely different phase of the relationship.

Students of history will remember President Bush spoke of the need to defend democracy all over the world in his second inaugural address, while fully supporting the military dictatorship of General Musharraf. Those students cannot help but compare that to today, when President Obama wholeheartedly supports the democratic process in Pakistan and the very real chance of a nuclear deal is on the table.

The inclusion of nuclear cooperation in the Dialogues says many things about the way the US has come to view Pakistan. Firstly, it declares the A.Q. Khan issue is finally behind us. The idea that this would no longer hinder cooperation between the two nations is something Pakistanis ought to be delighted with – for that has always been a thorn in the relationship. Secondly, we can now see proof that the US sees Pakistan as an equal ally to be granted respect. To all the anti-American pundits in Pakistani media, this must be truly upsetting – for they thrive on the idea the US secretly wants to take over Pakistan, and cannot be digesting this particular development very well.

It is truly wonderful to hear our Foreign Minister speak well of the talks. Mr Qureshi, in his interview to Reuters, said that meetings with US officials on nuclear cooperation, non-proliferation and export controls had gone well. “I am quite satisfied with the discussions we had,” Mr Qureshi said when asked about the nuclear cooperation issue.

As time goes on, we look forward to seeing more signs of cooperation on all fronts.

Is the Chief Justice Out of Control?

Chief Justice Iftikhar Chaudhry is creating a great deal of nervousness in Islamabad as a result of his erratic and often inexplicable behaviour, which has begun to skirt the limits of his constitutional powers. With his latest actions including threatening people and abusing lawyers before the court, some are starting to ask if the Chief Justice is out of control.

The Chief Justice appears to have taken a hostile attitude towards the democratically elected government, with some saying that Iftikhar Chaudhry is acting out a revenge scenario against President Zardari for not reinstating him quickly enough after the CJ was dismissed by Gen. Musharraf.

The president and the chief justice have a tense personal relationship, and the court’s efforts to reopen thousands of corruption cases against politicians, bureaucrats and party workers dating back to the 1990s has exacerbated it. The court revoked an amnesty protecting the defendants in December, setting off the current conflict.

Zardari’s strained relationship with the judiciary stems from his delay in reinstating the chief justice, who had been dismissed by Musharraf — a move that only heightened public anger against the former general and energized protests against his rule.

Zardari promised to return Chaudhry to office once in power, but resisted for six months until he was forced to act by opposition-led protests.

Now the court is trying to fast-track the re-opening of cases against President Zardari to drag him back into court. Raja Amir Abbas, deputy prosecutor general of the NAB, has said that a letter to the Swiss authorities will be written by tomorrow asking to re-open corruption cases against Zardari there, even though the chief prosecutor in Geneva, Daniel Zappelli, has said that he has no evidence to bring Zardari to trial.

International legal analysts are calling the Chief Justice’s actions a “Judicial Coup.” Consider the following analysis by esteemed former members of the American Department of Justice, David B. Rivkin and Lee A. Casey:

Supreme Court Chief Justice Iftikhar Mohammed Chaudhry, the country’s erstwhile hero, is the leading culprit in an unfolding constitutional drama. It was Mr. Chaudhry’s dismissal by then-President Pervez Musharraf in 2007 that triggered street protests by lawyers and judges under the twin banners of democracy and judicial independence. This effort eventually led to Mr. Musharraf’s resignation in 2008. Yet it is now Mr. Chaudhry himself who is violating those principles, having evidently embarked on a campaign to undermine and perhaps even oust President Asif Ali Zardari.

CJ Iftikhar’s apparent vendetta is particularly troubling because it seems that he is showing blatant disregard for the constitution in the process. Article 248 of the constitution clearly states that criminal proceedings cannot be instituted against an individual while he is servings as President.

248. Protection to President, Governor, Minister, etc.
(1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not he answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions:

Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province.

(2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office.

(3) No process for the arrest or imprisonment of the President or a Governor shall issue from any court during his term of office.

(4) No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during his term of office in respect of anything done by or not done by him in his personal capacity whether before or after he enters upon his office unless, at least sixty days before the proceedings are instituted, notice in writing has been delivered to him, or sent to him in the manner prescribed by law, stating the nature of the proceedings, the cause of action, the name, description and place of residence of the party by whom the proceedings are to be instituted and the relief which the party claims.

This is more than just an academic problem. Article 248 ensures that the nation can continue operating and that the government can continue to function. If Zardari is guilty of some crime, it will not be unreasonable to bring the case when his term ends in a few years. After all, these charges originated over a decade ago. Why the sudden hurry?

But this isn’t the only troubling aspect of the Chief Justice’s behaviour. The Chief Justice has lately started acting irrationally and yelling at everyone in sight.

Chief Justice Iftikhar Chaudhry has screamed at the NAB Chairman Naveed Ahsan and threatened to throw him in jail. Upon hearing the case against Deputy General of the Federal Investigation Agency Riaz Sheikh, CJ Iftikhar ordered the accused jailed before his conviction and scolded his attorney for representing his case. How can there be any justice if accused are jailed before they are found guilty, and if their attorneys are abused and intimidated by the court?

The Chief Justice has gone out of control and is threatening not only reputation of his own office, but the stability of the nation. This is not justice, it is a farce.

Never Forget, Never Repeat

Pakistan has suffered too much from the acts of dictators who put their personal ideology and power before their country. Even though Zia-ul-Haq and Musharraf are gone, though, we feel the effects of their rule still in the ongoing battles about NRO, NAB, constitutional reforms, etc. etc. etc. We should make every effort to undo the destructive policies that were made under dictators, and we commend the democratic government for its efforts. But we must never forget the past so that we may never repeat it.

Kamran Shafi makes this point most excellently in his article for Dawn today, “We must never forget Ziaul Haq.” We need to have a sane point of view, to see our troubles with a sense of historical perspective. The demons we are wrestling with are the result of years of dictatorship and anti-democratic misrule. We finally have a democratically elected government that is working to make some progress.

No, eveything is not perfect. But did we ever believe that free elections would be magical and in one inning win the test? Of course, we are not so naive. So instead of beating up our government for not batting only sixes, why don’t we work together to keep scoring runs and building up a score that can win this test. Otherwise, if we keep treating our politicians like wickets, soon enough it will be us who are all out.

We Must Never Forget Ziaul Haq

We are told that Ziaul Haq, yes the very same Ziaul Haq at whose door the responsibility of unleashing the demons responsible for most of our present travails can and should be placed, is to be excised from the nation’s history by his name being struck off the list of Pakistani presidents.

One has to immediately ask if this act will also take away the spectre of religious extremism that the man gave birth to and nurtured until it became a scourge that we Pakistanis have to face every moment of our lives; or that the baradari (clan) politics he (re-)introduced will simply go away; or that it will automatically rid the country of his horrendous Hudood Ordinances under which tens of poor women have been horribly violated and hundreds of our minority brothers and sisters have been murdered and tortured and jailed?

No, a thousand times no. Instead of removing his name from the squalid history of our poor country, Ziaul Haq’s name must be kept alive so that succeeding generations are reminded of the tyrant and his doings that so completely destroyed Pakistan and its social fabric.

Statues of the dictator, resplendent in his general’s uniform gongs, ribbons, medals, sashes, toshdans and all, should be raised in all the major cities of Pakistan with his crimes against the people inscribed in large letters on marble plaques at the base of the statues.

Rather than forgetting the man, the government should periodically run paid advertisements in the newspapers and on television stations enumerating his acts that have brought the country to near ruin.

Indeed, these ads could be run immediately after another heartrending bombing carried out by the religious terrorists who can rightly be called ‘Zia’s grandchildren’; bombings that kill and maim and terrorise even women and children. No, friends, we must never forget the dictator and what he did to us.

On to other matters; first to the NRO. Enough already, as the Americans say. I was absolutely against the NRO when it was first mooted as a way that would facilitate Benazir’s return to the country, as also the return of others from her party who had been charged with wrongdoing by Musharraf’s dictatorship.

It was akin to throwing the dictator a lifeline I thought, when he was weakened by the lawyers movement against the dismissal of the superior judiciary. In hindsight I was wrong: if there hadn’t been an NRO, Musharraf would still have been sitting at the top of the heap; the political parties would still have been out in the cold, and let alone being restored, the judges would still have been under house arrest.

No NRO, no giving up his uniform (his ‘second skin’, remember?), no political parties; no political parties, no elections; no elections, no parliament; no parliament, no political manoeuvring; no political manoeuvring, no long march; no long march, no restoration of judges, and so on and on and on.

Seriously, does anyone think that Musharraf could have been dislodged by the lawyers backed by a handful of ‘civil society’? On deep reflection, I think not. So, enough already on the NRO. The point has been made that it was a bad law: can we just let go of it now; give elected people the chance to complete their terms and the people the chance to vote them out in the next election? As I have said before, if this government does not complete its term, neither will the next.

And another thing. Will everyone stop hounding the so-called ‘NRO beneficiaries’? Everyone and Charlie’s Aunt knows that in most cases trumped-up charges were made against their detractors by successive Pakistani governments, dictatorships and others.

However, if those who are demanding action now that the NRO has been declared null and void feel they must go on regardless, it is their moral duty to also demand that the armed forces and the judiciary be made accountable under the same accountability laws too. Let us have no holy cows.

Enough already on the Kerry-Lugar Bill, now law, too. Look at it this way: since the army high command which started it all (‘furious’ was a term used to describe the feelings of the brass hats), has just been to Washington D.C. and sued (as in beg for something) for this and that and the other, is it not time that others who thought that the Kerry-Lugar law took away Pakistan’s ‘sovereignty’ stopped criticising it? It is a perfectly worded law, may it live long.

A word on the judicial crisis. The slapping of a senior civil judge (in court, mark) by a lawyer in Faisalabad, and before that the thrashing of journalists and police officials by other lawyers in the Lahore courts, should make it very clear to My Lords of the superior judiciary that the sense of conquering all before them is turning very ugly indeed.

It ought to be realised that lawyers are not storm-troopers, ready to attack all comers, even judges sitting on the bench, at the slightest provocation. This will not happen unless it is realised that lawyers, as also the judiciary, are mortal too, that they are not all-powerful. And this will not happen unless the judiciary sets parameters for itself and says clearly that there are matters of governance that should be left to the elected parliament and the government that comes from parliament.

The judiciary should look back and see the trials and tribulations it has come through, the many ups and downs it has seen, mainly downs. It should look back and see the many episodes that did not exactly paint it in a kindly light, more than anything else the judicial murder of Zulfiqar Ali Bhutto at the behest of the man we must never forget.

It needs to understand more than anything else that it was only a civilian dispensation that gave it back the freedom so cruelly taken from it by an army dictator. The very best start to this will be My Lord the Chief Justice immediately recusing himself and his office from any committee set up to appoint judges. If he sends the message that parliament, which embodies the peoples will is supreme, he will go down in history as a truly great man.