Events Highlight Need to Strengthen Civic Education

Mutalia PakistanOne issue highlighted by the Supreme Court’s disqualification of the Prime Minister is how many people don’t have a good understanding of how courts, parliament and the executive branch are supposed to function together. This is not to say that people don’t understand what is going on in the halls of power. Actually they understand this very well. But what is going on in the halls of power is reflects dysfunction, not the proper functioning of government.

This is not to say that we, the average citizens, are dysfunctional but only that our education system does not make a priority of these things. One of the reasons why we keep having such crises is because there is confusion and disagreement about the working of the governmental system because most people aren’t taught about these things early on in school. I vaguely remember just the one chapter of ‘parliamani nizam’ (parliamentary system) from my ‘Mutaliya Pakistan’ book from back in second year (12th grade). That too did not go deep enough into the matters of the constitution and separation of power principle or the effective working of these pillars of state (judiciary, legislative and executive branches). But even this is more information than many of our citizens will ever have about the way the government works!

I’ve seen people suggesting Supreme Court is supreme, and some saying Parliament is supreme but no one seems to suggest that it is the constitution which all of the pillars of state are trying to uphold. And that one institution does not need to be superior to the other or does not have to encroach its jurisdictional boundary as explained in the constitution, to do its job. All institutions need to work together to make an effective and working state.

Many people also seem to think that every institutions will naturally fight for supremacy. Partly this is because our history is filled with the eternal battle between military and civilian institutions. Today, the civilians are supreme and individuals favour one institution or another institution based on the need of the hour for their political party, not the good of society. For example, PML-N supporters opposed the judiciary to the point of storming the Supreme Court when it threatened Mian Nawaz, but today are supporting the judiciary because they think it will hurt the PPP.

Needless to say, various institutions within our system have also not been a paragon of how a democratic state institution should work and that has not helped the situation any, further playing into the hands of the media and its anchors who exploit these problems to advance their own fame and fortune as was recently exposed in plain sight.

The answer to this is strengthening civic education so that all citizens have a firm understanding of how the system is supposed to work. Everyone wants to strengthen rule of law, but first we must agree on what ‘rule of law’ means. Then it will become clear when individuals or institutions are acting improperly and will make it easier to hold them accountable.

Chief Justice’s Bad Week Gets Worse

If Chief Justice Iftikhar Chaudhry was having a bad week when he found his son dragged before the Court and his own name dragged through the mud of media talk shows, things only got worse when he was handed a sealed envelope containing the report of the judicial commission formed to investigate the memogate scandal. The Justices appointed to the commission failed in a big and serious way. They stepped so far outside their authority that they poisoned any future proceedings, basically ensuring that Husain Haqqani could not possibly receive a fair trial in Pakistan. And the Chief Justice knows it.

Here’s what happened. In Constitution Petitions No.77 to 85 and 89 of 2011, the Supreme Court constituted a Commission with a very specific and narrow mandate:

…to ascertain the origin, authenticity and purpose of creating/drafting of Memo for delivering to Chairman of the US Joint Chiefs of Staff Admiral Mike Mullen…

That’s it. Three findings of fact: The (1) origin, (2) authenticity, and (3) purpose of the memo. That’s all the Commission was formed and authorised to investigate. Now, it was never going to be an easy job. Unwinding the constantly changing story of Mansoor Ijaz – not to mention regularly changing the rules to accommodate his whims – was no small task. But when they sealed the envelope containing their report, these three Justices also sealed the fate of the entire controversy.

In their findings, the Justices wrote that “the Memorandum was authentic”, “Mr Haqqani was the originator”, and “Mr Haqqani…wanted to create a niche for himself making himself forever indispensable to the Americans…” This was the extent of their mandate, and should have been the extent of their findings. But the Justices couldn’t help themselves, and they went on…

…He lost sight of the fact that he is a Pakistani Citizen and Pakistan’s Ambassador to the United States of America, and therefore his loyalty could only be to Pakistan.

(3) Mr. Haqqani’s by offering his services as part of a proposed ‘national security team’ to a foreign government, voicing the ‘great fears’ that ‘Pakistan’s nuclear assets are now legitimate targets’ and thus seeking to bring ‘Pakistan’s nuclear assets under a more verifiable, transparent regime,’ stating that ISI maintains ‘relations to the Taliban’ and offering to ‘eliminate Section S of the ISI and to help ‘ pigeon – hole the forces lined up against your interests’ created fissures in the body politic and were acts of disloyalty to Pakistan, that contravened the Constitution of Pakistan.

That’s not an answer to any of the three questions the Commission was authorised to report on. It’s not even a finding of fact – it’s an application of the law. The Commission not only exceeded their authority, they usurped the authority of the Court by finding facts and then applying the law without filing charges or holding a proper trial.

The Commission later says that Husain Haqqani “has to answer about the findings so recorded by the Commission”, but because they have already pronounced him guilty of “acts of disloyalty to Pakistan, that contravened the Constitution”, how can he possibly answer? He has been convicted in absentia with no access to due process.

Whether or not the factual findings of the Commission are accurate, by casting judgment against Husain Haqqani absent any charges or trial, they have undermined the judicial process completely and ensured that any outcome will be forever tainted. If Haqqani is acquitted by the Supreme Court, the Chief Justice will be undermining the credibility of not one but three High Courts. If Haqqani is convicted, though, it will be stained with the appearance of a ‘Kangaroo Court’ that persecuted a man who found himself on the wrong-side of a powerful military intelligence agency for writing a book critical of their ties to religious militants.

As the Chief Justice desperately tries to convince the nation that he is presiding over a legitimate court of justice and not a political tribunal that protects its favourites while relentlessly hounding its enemies, he is handed a sealed envelope containing one of the greatest judicial mistakes the Court has seen since, perhaps, a Supreme Court Justice gave legitimacy to Gen. Musharraf’s military coup by giving his oath under the dictator’s 1999 Provisional Constitutional Order (PCO)…

Media Worker Salaries: Where’s the Court When We Need It?

empty courtroom

It’s well accepted that a free media is a foundational requirement for a functioning democracy. This was apparent to Quaid-e-Azam who spoke passionately on different occasions about the importance of independent media that will fearlessly criticise those in power. Today we have a media that fearlessly criticsing the powerful, but there are some questions about its independence. Setting aside conspiracies, there is one way that media independence is threatened that is obvious – the problem of media workers going for months without being paid their proper salaries.

President Zardari called on the All Pakistan Newspapers Society (APNS) to look into the issue of payment of salaries of the workers and journalists this week, saying that “The PPP and the present government recognize and respect the critical role of the media in promoting democracy, as an independent media was a guarantor of human rights, freedoms and liberties.”

Certainly APNS should take up this issue, but why doesn’t the Chief Justice take notice also? The issue of payment of salaries surely falls under the Fundamental Rights in the Constitution. Article 24 demands that ‘No person shall be compulsorily deprived of his property save in accordance with law’. Is it not compulsorily depriving media workers of their property when media groups do not pay them their due salaries? Allowing media workers to continue without the Court taking notice also sends the message to other companies and other industries that they can stop paying workers and there will be no consequences.

There is another effect that nonpayment of salaries has also which is that when workers are not paid their proper wages, they are forced to look elsewhere for the means to pay their bills and feed their families. This encourages corruption and bribe taking where there it wouldn’t exist if workers were paid properly. In the case of media, the taking of bribes and other payments calls into doubt the media’s independence. If the Chief Justice wants to get rid of corruption, here is an easy way to start.

The Chief Justice has made clear that he believes that corruption is a serious problem of society and that the rich and powerful must not be given a free pass. But the cases that have obsessed him are targeting individual elites, not problems that affect the lives of the common man. Taking notice of the issue of payment of salaries to media workers would give the Court the ability to fight corruption and hold the rich accountable under the rule of law. It would also protect the Fundamental Rights of the Constitution and show the people that the Court is working for the good of society and not some political agenda. Therefore, it seems like an obvious case. So where is the Court when we need it?

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.

Obituary for Lawyer’s Movement

Lawyers rally for confessed killer Mumtaz Qadri

In 2007, Gen Pervez Musharraf decided the law was inconvenient to his authoritarian whims, so he infamously attacked the judiciary, suspending and detaining the Chief Justice. The dictator’s action was seen by all as a bald faced attempt to crush dissent and rule with an iron fist. Rather than solidify his regime, though, his overreach gave birth to the Lawyer’s Movement, also known as the ‘Movement for the Rule of Law’, and the historic long march from Lahore to Islamabad two years later demanding reinstatement of the Chief Justice.

The movement gained international attention for Pakistan, and international acclaim for the lawyers who were seen as the vanguard of justice and integrity in Pakistan.

The movement to restore Chaudhry, and the constitution, and the rule of law, held out the hope of disinterring the liberal tradition. In a country where politics taint everything, many of the lawyers were independents. Pakistan’s bar associations were among the few bodies that had consistently selected their leaders through democratic elections; and the country’s 116,000 lawyers had chosen through their bar associations to commit themselves to protest. Ahsan was not then an officeholder, but he worked alongside the president of the Supreme Court Bar Association, Munir Malik, and Tariq Mahmood, a former judge who had quit rather than accept Musharraf’s blatant rigging of the 2002 referendum. Years of disappointment had made Pakistanis cynical about politics and public life, but these were men whose integrity put them beyond question.

Today, the lawyers’ reputation has become as black as their coats.

After Mumtaz Qadri shot Salmaan Taseer in the back, a murder he freely admits to, lawyers were seen showering the killer with roses, a shameful about-face that was not missed by the international press.

Instead, before his court appearances, the lawyers showered rose petals over the confessed killer, Malik Mumtaz Hussain Qadri, a member of an elite police group who had been assigned to guard the governor, but who instead turned his gun on him. They have now enthusiastically taken up his defense.

It may seem a stark turnabout for a group that just a few years ago looked like the vanguard of a democracy movement. They waged months of protests in 2007 and 2008 to challenge Pakistan’s military dictator after he unlawfully removed the chief justice.

Whether or not any particular lawyer believed that Qadri’s actions were defensible under the law, the way that the lawyers have behaved has shown that, as Saroop Ijaz observed, “this particular case is anything but ordinary”.

What has made the case even more extraordinary were reports this week that the judge who presided over the case, Pervez Ali Shah, has fled to Saudi Arabia after receiving death threats.

“The death threats have forced Judge Pervez Ali Shah to leave the country along with his family for Saudi Arabia,” Advocate Saiful Malook, the special prosecutor in the Qadri case, told Dawn on Monday.

He said sensing the gravity of the situation the government had arranged the lodging of Mr Shah and members of his family abroad. “Although security was provided to the judge and his family members, the government on the reports of law-enforcement agencies opted for sending him abroad,” he said.

There were also unconfirmed reports that extremist elements in religious parties had fixed the head money for the judge. “There were such reports but there was a potential threat to the life of Mr Shah and his family members,” he said.

And where are the lawyers now as one of their own is once again forced from the bench by forces that refuse to accept the rule of law when it is inconvenient to their agenda? Where is the long march demanding the return of Judge Pervez Shah and defence of an independent judiciary?

While it is true that some of the leaders of the lawyer’s movement such as Asma Jahangir have remained true to their principles and demanded that the rule of law not be sacrificed to the rule of mobs, these few souls have been abandoned by their colleagues whose silence in the face of the new authoritarian threat is the public death notice for the lawyer’s movement.