Pakistan’s Latest Political Trial

Pakistan’s security establishment has a history of using politically motivated trials to get rid of inconvenient civilian governments. Most famously, Gen. Zia-ul-Haq’s 1977 coup was finalised when a military court sentenced Prime Minister Zulfiqar Ali Bhutto to death following what international officials dismissed as a mock trial fought in a Kangaroo court. Troublingly, there are reasons to worry that Pakistan may be witnessing another political trial against a democratically elected civilian government.

This latest chapter began with American businessman Mansoor Ijaz’s claim that Pakistan’s Ambassador to the United States, acting on the direction of the country’s president, sought American support for replacing Pakistan’s military leadership in order to prevent a possible coup. Mr. Ijaz, whose bizarre claims have been strongly questioned by the international media, has found himself an unlikely celebrity in Pakistan where his years of accusing Pakistan’s military and intelligence agencies of facilitating international terrorism have been largely ignored in favour of his allegations against democratically elected civilian officials.

Despite serious questions about the accuser’s credibility, a media circus erupted over the issue. The first casualty of Ijaz’s allegations was Pakistan’s Ambassador to the United States, Husain Haqqani, who was driven to resign despite an absence of formal evidence suggesting his involvement. At the time of this writing, Pakistan is still operating without a permanent Ambassador to the world’s most powerful nation.

In response to the media uproar, Prime Minister Gilani announced a parliamentary commission to investigate the issue, only to have the rug pulled out from under him by the judiciary when the Chief Justice accepted a petition by opposition leader Nawaz Sharif and announced that the Supreme Court would hold its own investigation, further ordering the country’s civilian and military officials to respond within 15 days.

Asad Jamal, a Lahore-based advocate of the high court, reviewed the Supreme Court’s justification for taking up the issue and found the decision completely outside the constitutional jurisdiction of the court.

The irony of Nawaz Sharif presenting the petition before the court was not lost on Pakistanis as Mr Sharif himself has been convicted by multiple courts on charges ranging from corruption to highjacking and terrorism. The cases were well known to be politically motivated, and many of the convictions were later overturned citing lack of evidence.

Perhaps the most ironic thing about Nawaz Sharif’s latest legal gambit is that not only has the former Prime Minister himself been the subject of judicial persecution, but he has even been accused of the same charges that he is now petitioning the court to investigate.

According to Shaheen Sehbai, an editor at The News (Pakistan’s largest English-language newspaper) reported in 1998 that Nawaz Sharif and his emissaries held secret meetings with U.S. government officials during which they asked the Americans for support in changing the military leadership who they suspected of plotting a coup. In return, Nawaz Sharif allegedly promised to sign the Comprehensive Nuclear Test Ban Treaty and task the ISI with supporting CIA operations to kill or capture Osama bin Laden. The following year, the government fell in a military coup and Nawaz Sharif found himself hauled before a court and quickly handed a life sentence. Sound familiar?

Pakistan’s Supreme Court has already placed Husain Haqqani on the nation’s Exit Control List (ECL), barring him from travel despite the fact that he vehemently denies the allegations leveled against him, returned to Pakistan of his own free will, and has yet to be formally charged with any wrongdoing. In contrast, the court has not taken any position on his accuser, Mansoor Ijaz, who has made nearly daily appearances in the Pakistani media repeating his allegations.

Though this latest episode in Pakistan’s political history is unfolding in deeply troubling ways, there are reasons to hold out hope. The judicial inquiry suffered its first setback when the man appointed by the court to head the commission, former Director General of the Federal Investigation Agency, Tariq Khosa, refused to take part.

And Husain Haqqani himself is not without significant supporters in Pakistan’s legal community. After reviewing the merits of the case, Asma Jahangir — one of Pakistan’s leading human rights advocates and president of the Supreme Court Bar Association — offered to defend Haqqani before the court. As compensation, she is asking only 4,000 Rupees — about $45.

Still, many in Pakistan and abroad are watching the proceedings anxiously. If Pakistan holds democratic elections as planned in 2013, it will be a historic moment for the country when the next government forms. Not once has Pakistan seen a transition between consecutive democratically elected governments. More often, we have seen the democratic process derailed by a misguided judiciary. Let’s hope history is not repeating itself.

Mad ‘Sacred Cow’ Disease

Chief Justice Sacred CowAs I was thinking about the vilification of Marvi Memon for daring to suggest that maybe we should get the facts before we construct a shrine to Dr Aafia, it started to occur to me that part of the reason that it’s so easy to attack Marvi Memon is because she is a politician. We love to vilify them. But there is another group that is off limits for criticism – judges.

The Supreme Court has been highly political over the past few years, taking suo moto notice of all sorts of political cases as if there were no other issues in the country. The judiciary seems to have realized its political power and the fact that its become a sacred cow. Unfortunately, the result of this mixture is Mad Sacred Cow Disease.

Take the sugar price issue. Labour and Manpower Minister Syed Khursheed Shah dared to say what everyone in the world knows, which is that commodity prices are determined by the laws of economics – supply and demand. Certainly the courts should protect open and transparent markets so that there is no price fixing, but instead the LHC decided to do some price fixing of its own. When this was pointed out, the judges didn’t get reasonable – they got MAD.

“This court always welcomes healthy, constructive and fair comments on the merits of the decisions in good faith and in temperate language, without impugning the integrity or impartiality of the judge and expects that unwarranted and uncalled for comments would be avoided because judgments are based on law and the Constitution,” the Supreme Court office said in a rare statement.

But what if we believe that the judges are acting without “integrity or impartiality”? We have no problem accusing everyone in the Cabinet, the National Assembly, the Provincial Assemblies…everyone down to a rickshaw driver…of being corrupt. But the judges are somehow off limits?

The Supreme Court said that it “is following the Constitution and has played its due role assigned to it by the Constitution and law”, but I looked through the entire constitution and have not found where it says that the judges should set the price of sugar. If someone can point out that clause to me, I would be much obliged.

The same can be said about the 2009 decision on the carbon tax. Again, the constitution appears to be fairly clear in Article 77 – and the Supreme Court set the constitution aside to come to its own determination.

Criticising the courts shouldn’t be controversial, especially if the court is going to choose to insert itself into controversies.

Setting sugar aside for a moment, consider the bigger controversy which is the NRO. Human rights activists and legal experts have roundly criticised the court’s behaviour in this regard. Remember what Asma Jahangir wrote in December:

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.

The judgment has also sanctified the constitutional provisions of a dictator that placed a sword over the heads of the parliamentarians. Moreover, it has used the principle of ‘closed and past transactions’ selectively.

It is not easy to comprehend the logic of the Supreme Court that in a previous judgment it went beyond its jurisdiction to grant life to ordinances — including the NRO — protected by Musharraf’s emergency to give an opportunity to parliament to enact them into law.

The situation becomes even more troubling when we remember that only a few weeks before the Chief Justice warned that no one should question the courts, he also stated that the courts will intervene in any state organ. This statement prompted Asad Jamal to ask an important question, then: “Who will hold the courts accountable?”

Granted, that the courts are there to protect the rights of the people when the executive transgresses its jurisdiction. Granted too, that it is the courts’ job to interpret laws and intervene in case they violate fundamental rights. But who will hold the courts accountable? Should they indulge in judicial excesses? Nobody is ready to raise this question in these times of judicial activism. Meanwhile, the courts may do well to follow the unwritten code of self-restraint.

We are a nation of laws, are we not? You can read any newspaper or watch any TV talk show on any given day and there will be some discussion of accountability for the police, accountability for ISI, accountability for politicians – why can we not have accountability for judges also?

We have already seen the disastrous results of a nation of generals. Let’s not make the the same mistake and try to fashion ourselves as a nation of judges. A dictator is a dictator whether he wears a crown, a turban, khakis or black robes. Pakistan doesn’t need any more dictators, and we don’t need any more sacred cows, either. That’s just madness.