If Shafqat Hussain hangs, whole system may be found guilty along side him

shafqat hussain

Shafqat Hussain’s case took on international attention when the question of his age was raised. This has caused some confusion in Pakistan where people have posted pictures of the accused with a beard asking how this can be a teenager. This misses the point completely which is not that he is a teenager now but that he was a teenager over a decade ago when he was convicted for his alleged crime. Global human rights groups including those that have previously been highly favoured for speaking against drones have demanded the execution be stopped and termed his trial as “farce”. In Pakistan, that farce continues today and the state appears to be completely dysfunctional in its handling of the case.

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Was case against CJ’s son decided before it began?

Chief Justice with his sonWas the corruption case against Arslan Chaudhry decided before it even began? A New York Times article about the case against the Chief Justice’s son includes a particularly interesting paragraph:

Mr. Mir then insinuated that the powerful army and intelligence services could be manipulating Mr. Hussain in order to get at Justice Chaudhry for his relentless pursuit of cases related to illegal detention and extrajudicial killings by the security forces. “Now you are going in the right track,” Justice Chaudhry said with a faint smile.

How does the Chief Justice know what is the right track before he has heard all the evidence? Has he already decided the outcome and now he is leading the witnesses to provide the testimony needed to give the decision already made?

The Chief Justice has now recused himself, but is it not a case of too little too late? How can anyone be expected to believe that the process has not been influenced when the Chief Justice of the Supreme Court gives away the ending in the first act?

Chief Justice Awards Himself

Chief Justice Iftikhar Chaudhry Gives Himself Award

The Chief Justice will be traveling to London next month to receive the prestigious International Jurist Award 2012, media reported over the weekend. While this recognition is being lauded in the media, it seems that there might be more to the story than has been reported.

No doubt the International Jurist Award 2012 is something of a relief for the Chief Justice after being the subject of a rather unflattering report by another international organisation, the International Commission of Jurists (ICJ). The ICJ report questioned whether the Chief Justice had crossed the line of his constitutional role as jurist and was attempting to influence the direction of policy – the latter being the proper role of parliament, not the court.

Actually, the ICJ’s findings were similar to those of another report released late last year, this one by the independent Human Rights Commission of Pakistan (HRCP). Dr Mohammad Taqi describes the HCRP’s findings as follows:

The HRCP seems to be of the opinion that the superior judiciary’s overzealous use of the suo motu powers as well as entertaining petitions by the so-called interested parties— the definition of remains nebulous and ever-expanding— has taken up time and energy of the courts to the detriment of other cases. In addition to— and often at the expense of— its normal function as the court of appeal, “the country’s apex judicial forum was also functioning as an ombudsman’s office, as an administrative court, as an anti-corruption tribunal, as a supreme investigation agency, and as the sole defender of not only the constitution but also of public morality”. In a country where the backlog of cases is to the tune of millions, by seizing itself with issues cherry-picked from or by the media or thrown in its lap for political reasons, the Supreme Court has clearly spread itself too thin.

After receiving such reviews by independent international legal organisations, finally having his work praised by an international legal organisation must be quite comforting to the Chief Justice. This award has certainly pleased the media as well as certain opposition politicians who are cheer leading for the Chief Justice in his decisions against the government. After storming the Supreme Court in 1997 during his own contempt case, Nawaz Sharif has become the Chief Justice’s most loyal servant. Even PTI’s Jahangir Tareen who only a few years ago was defending Gen. Musharraf’s attacks against the Chief Justice has had a change of heart now that the Chief Justice is attacking his political rivals.

There is, of course, one difference between the international legal organisations that are criticising the Chief Justice and the one that is granting him an award next month. That difference being that the Chief Justice himself is Vice-President of the organisation giving him the award.

It’s rather ironic, one must admit, that for all his talk about the importance of an independent judiciary, the Chief Justice is going to accept an award from an organisation that he himself sits as Vice-President. I will leave it to you, dear reader, to interpret this irony for yourself. As for me, I think that until the common man can get justice, perhaps the Chief Justice should be a little more humble about whether he deserves any awards – especially when they’re handed out by his own organisation.

Iftikhar Über Alles

By elections held last weekend were marred in the minds of the public by the unfortunate incident which took place in the competition for PS 53. I am writing, of course, of the infamous slap that was shown on TV in what seemed like an endless loop. This incident has already thrown the provincial seat into question as the accused Waheeda Shah evidently won the vote, but may lose the election based on her action as Election Commission Pakistan (ECP) is reviewing the incident. Of course, now not just the ECP but the Supreme Court too has taken notice! While no one denies that the incident should be properly investigated, it should be asked whether this is the proper use of the Supreme Court’s suo moto powers.

The infamous slap was not the only incident to take place. Who could have missed the footage of ANP supporters flouting the law with airial firing in Mardan that was broadcast all day?

Or what about the tragic crime in which PTI supporters of Shah Mehmood Qureshi fired at PPP workers and murdered poor Farhan Mughal in Multan?

While guns were brandished and arial firings used to intimidate voters – and in at least one case brutally murder a rival party supporter – the Chief Justice has taken notice of…a slap?

This raises two important questions. The first obvious question is why the Chief Justice takes notice of a slap while murders and firings go ignored?

Article 184(3) grants the Supreme Court suo moto powers to take notice of ‘a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II’. The Chief Justice has probably justified to himself by referring to Article 14 which protects ‘the dignity of man’.

But Chapter I of Part II of the Constitution also protects a right to education (Article 25A) and the right to profess, practise and propagate his religion (Article 20). Pakistan finds itself today facing a crisis on both fronts, where too many of our children are going without education, and our minorities are living in fear for their lives. Waheeda Shah’s slap may have insulted the dignity of one woman, but our failures in education and tolerance are insulting the dignity of over 1.5 crores. Why does the Chief Justice not take these issues as seriously?

And this is not the only issue. Chapter I of Part II also entitles every citizen to ‘a fair trial and due process’ (Article 10A). Why is the SC taking suo moto notice of an incident before it has the opportunity to go through due process? Waheeda Shah has already been called by District Returning Officer Ali Asghar Siyal to record her statement, and ECP has called the APO who suffered the slap to give her statement as well as DSP Tando Mohammad Khan Irfan Shah who was present at the time. ECP has also called Waheeda Shah on 6th March for hearing of the complaint against her actions.

Waheeda Shah’s action is a serious incident that should be investigated. The statements of those present should be taken and Waheeda Shah should be given the opportunity to explain herself also. She should not be judged before all the evidence is available, but she should not be given a free pass either. Whatever the ECP decides, then if it is not considered fair or just, it can be taken to court and work its way through the system.

This is the second problem. The incident took place on Saturday, and less than one week later already the Chief Justice is taking suo moto notice of the incident? For a justice who has repeatedly vowed to restore ‘rule of law’, he seems to forget that rule of law requires that due processes and procedures be allowed to run their proper course. The Supreme Court is not intended as the personal court of Iftikhar Chaudhry’s whims. It is the ‘Court of Last Resort’ – once all other institutions have judged an issue, if still it is not decided to the satisfaction of all parties, then they can appeal to the Supreme Court to hear their case.

Instead of using his suo moto powers in an arbitrary manner, the Chief Justice should observe proper restraint and allow due process and, indeed, the ‘rule of law’ to take its course. He should only take suo moto notice when there is no other option available – certainly not while other institutions are in the middle of proceedings on the same issue. Not only would this help to strengthen institutions, it would also give the Supreme Court the time necessary to actually close some of the cases it has already taken notice of. Pakistan needs a stronger rule of law. We do not need Iftikhar over all.

Supreme Court’s 18th Amendment Decision

You have to hand it to the Chief Justice – he may have walked right up to the edge of the cliff, but he stopped before pushing the country into the abyss. Announcing a verdict on his suo moto hearing on the constitutionality of the 18th Amendment to the constitution (a bizarre bit of self-referential argument if there ever was one), the Supreme Court expressed its concerns with Article 175-A, but stopped short of upending the nation. All things considered, the court appears to have come to the correct conclusion – the authority to amend the constitution lies with the people through their elected representatives in parliament.

The apex court in its decision ordered that Article 175-A, detailing the amendments to the procedure of appointing superior court judges, be sent back to the parliament for review.

“Parliament is asked to review Article 175-A, for it has harmed judiciary’s freedom,” Chief Justice Iftikhar Chaudhry stated, adding that consultation with the chief justice was necessary for the appointment of judges.

It is significant to note that the apex court decided to send Article 175-A back to the parliament for reconsideration instead of striking it down.

Clearly the court is not happy with Article 175-A. And I won’t take the time to make any particular argument for or against this specific article. But the court smartly avoided a constitutional crisis by not superseding the written constitution.

The Prime Minister handled the announcement with a great deal of class, saying that he appreciated the judiciary’s show of respect for the parliament and that, as parliament also respects the judiciary, he would work with the National Assembly to move forward with the court’s request and review the article in question. This is how a properly functioning democracy works.

I do want to say a bit about the guiding principles that became such a hot topic over the past few months. While it is without question that there are certain guiding principles behind the constitution, these principles do not exist above the written law. Actually, the exist within it. Just as the spirit of a song exists within the melody and the lyrics, so also the guiding principles of freedom, independent judiciary, division of powers between branches etc etc etc exist within the written words and the judicial interpretation of the nation’s defining law – the constitution.

This, of course, raises the question as to whether the constitution could be amended to say things that are against these guiding principles of a liberal democracy. I think the answer is obviously yes – we have seen just such abuses perpetrated by past dictators, and we are still working to undo those abuses. Actually, this is part of the reason the 18th Amendment was passed unanimously.

But just as the abuses of a tyrant cannot break the spirit of the people, so they also cannot break the spirit of our constitution. If there any errors or abuses find their way in, we will remove them. But it is vital that we do so properly. We cannot set our hopes on the benevolence of any dictator – military, civilian, or judicial. By trusting each other and working honestly to resolve our concerns and our disagreements, we are the masters of our own fate. We are a democracy.