Is the Judiciary really Independent?

One of the bedrocks of a democracy is the existence of an independent judiciary. Article 25 of the Constitution guarantees that “All citizens are equal before law and are entitled to equal protection of law”. But is this actually the case? Or are some citizens given special preference, while others are treated as suspect before they are ever even charged with a crime? Unfortunately, several recent events point to a troubling possibility – that not all citizens are equal before the law, and even if the judiciary is independent of the elected government, it is not independent of certain unelected institutions.

When Mansoor Ijaz’s revealed his famous memo back in October, the nation understandably wanted to know the facts of the case. Parliament initiated an inquiry, but the judiciary stepped in and set up their own commission claiming to be an independent institution. When Asma Jahangir appeared before the Supreme Court in defence of Husain Haqqani, however, she received a reprimand from the Chief Justice for daring to present evidence that contradicted the opinions of military generals.

The chief justice said: “Instead of giving importance to our own people (COAS and ISI DG) why should we consider the James’ affidavit more credible. Asma said army chief’s team brought the memo issue to his knowledge and on that basis he submitted his affidavit. The chief justice said armed forces have rendered lot of sacrifices for the defence of the country and they have respect for Chief of Army Staff (COAS).

The judiciary argued that it was the best venue for investigating the ‘memogate’ as it is independent of the political parties. But the elected government is not the only institution involved in the issue. Also involved are the unelected institutions of military agencies. If military officers are given preference by the Chief Justice, can the court truly be considered independent?

There are other questions related to the judiciary’s handling of the case that seem very problematic. Under what code of ethics, for example, is it okay for a lawyer representing one side of a case to publish an article in a major newspaper consisting of personal attacks against the character of the accused and his lawyer? And yet this obviously unethical act resulted in no response from the Chief Justice, no reprimand for the lawyer, no warning not to treat the case as sub judice. Does a veteran public servant not deserve the same basic respect as a military officer in the eyes of the court?

What about the fact that the entire ‘memogate’ case rests on the word of a man who also told a British newspaper that DG ISI was plotting a coup? The Supreme Court justified its commission to investigate claims about the memo based on Article 19A of the Constitution which guarantees “every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law”. Is the possibility that military officers were plotting a coup not “a matter of public importance” to the Supreme Court? Writing in Dawn, attorney Waris Husain asks why evidence is only being gathered against one side of the case and not all institutions equally?

For arguments sake, let us assume that the allegations against Haqqani are proven to be true. In order to determine whether he committed treason under Article 6 by “abrogate[ing] or subvert[ing] or suspend[ing]…the Constitution” one must judge whether or not the military was actually attempting a coup. If the military were attempting a coup, a plea to outside powers to help protect the parliamentary governance instead of dictatorship would preserve, not subvert, the Constitution. The case becomes damming for Haqqani if the Army Generals are found to be innocent of said allegations. Either way, the Court should ask for all communications exchanged by Generals Pasha and Kayani in relation to a potential coup, if they wish to accurately assess which party committed treason.

Though the Court has yet to decide who will face charges, they have exclusively put Haqqani on the control list, leaving off the military generals who stand behind the petition. The military leadership not only retains its right to travel, but it was launching international investigations into Memogate before being given the right to do so. The matter most certainly should have been investigated, but the manner and source of an investigation are paramount to a court of law. The information from the military affidavits should be examined critically rather than being accepted as prima facia evidence against Haqqani.

This question becomes even more important when one reads what is actually in the Affadavit submitted by Mansoor Ijaz himself.

Page 78 of Ijaz’s affidavit makes an interesting read as it speaks of Pakistani government officials “who served at the highest levels of the military-intelligence directorates in recent years and senior political officers of the civilian government.” These words were part of Mansoor Ijaz’s email to Gen. James Jones, stating: “I am attaching herewith a document that has been prepared by senior active and former Pakistani government officials ….” Here, Ijaz speaks of government and intelligence officials and not of a diplomat (Haqqani).

If Mansoor Ijaz claimed that the memo was written by recent senior military-intelligence officials, should the court not also request the submission of communications between intelligence officers and Mansoor Ijaz?

According to page 17 of Mansoor Ijaz’s affidavit, he received a phone call from Husain Haqqani “about 5 or 6 days before I met with Gen Shuja Pasha in London” asking Ijaz why he was meeting with the DG ISI. Mansoor Ijaz’s op-ed was published on 10th October, and his meeting with Gen Pasha was on 22nd October. If Husain Haqqani learned about the meeting 6 days before it happened, that means that it had to have been scheduled even earlier than that. This means that Mansoor Ijaz and Gen Pasha had to be communicating almost immediately after the op-ed was published, if not before. Is the fact that DG ISI was having discussions with Mansoor Ijaz so early not relevant to the Supreme Court? Does the judiciary only have the authority to demand the phones, computers and passports of civilians? Is there another law for military officers? If so, is it written law? Or danda law?

Let us move away from the ‘memogate’ case and compare the ‘independent judiciary’ handled another case. In the case of murdered journalist Saleem Shahzad, reports from human rights organizations and international media also cast suspicion on the involvement of unelected agencies. A high-level judicial commission headed by Supreme Court judge Justice Saqib Nisar took up the question of who tortured and murdered Saleem Shahzad. Six months later, the judicial commission reported that they found…nothing.

The Saleem Shahzad Commission was asked to submit its report within six weeks of its formation. Six months down the line however, its final findings show little. The report, presented to the prime minister on Tuesday, has not held any institution or individual responsible for the abduction, torture and murder of the journalist, according to a member of the probe.

These events raise serious questions about what it means for the judiciary to be ‘independent’. Certainly there is no question that the justices are not under the influence of the civilian government. But the civilian government is not the only institution with an interest in recent judicial cases. If the judiciary cannot treat elected and unelected institutions the same, though, can it truly be considered ‘independent’?