Judicial Activism and Executive Transgression Plague Pakistan

by Neha Ansari on July 24, 2012

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On June 19, Pakistan’s Supreme Court convicted former Prime Minister Yousaf Raza Gilani of contempt of court and ruled that he could not hold office, an unprecedented act of confrontation between the pro-military judiciary and the elected executive. To avoid a similar disqualification, Gilani’s successor and now Prime Minister Raja Pervez Ashraf pushed through controversial legislation that made it legal for the Prime Minister as well as the federal and provincial ministers to disobey the court and remain in office.

Ashraf’s pushback was the most accelerated legislative effort in decades. Pakistan’s two legislative houses acted in a diligent way to save their necks from the Supreme Court’s newfound activism. Such was the self-serving urgency that they passed legislation nullifying the court order in just a matter of two days. In their rush, the lawmakers ignored that the legislation violates Article 8 and 14 of the Pakistani constitution, which guarantees equal rights to all citizens. Pakistan’s democratic government is now unaccountable to its judiciary.

The court ruling is the latest salvo in a battle between pro-military bureaucrats and elected civilian officials. In this conflict, pro-military forces have accused successive civilian governments of corruption, often filing legal charges, and usually bringing them down through coups d’état.

Prime Minister Ashraf’s desperate legislation – widely considered a quick fix – was related to the National Reconciliation Ordinance, an executive order issued by former President Musharraf to bridge the gap between the military and the government. The NRO protected prospective government officials from corruption charges—in effect, allowing the late Benazir Bhutto and her husband and current president, Asif Ali Zardari, to return so that Bhutto could run for the premiership. But in 2009, a year after Musharraf had resigned and Zardari had replaced him, the Supreme Court declared the NRO unconstitutional, striking another blow in favor of military-dominated government. This was the beginning of the court’s foray into judicial activism.

With the NRO decision struck down, the corruption cases against President Zardari and hundreds of politicians and bureaucrats re-opened. One earlier development that piqued the interest of Chief Justice Iftikhar Chaudhry was the release of $60 million in Zardari’s frozen assets from Swiss accounts after the NRO was passed. In 2008, Pakistan’s attorney general had written a letter to Swiss authorities asking for the release of the assets as the corruption charges were mala fide. The Supreme Court declared this act by the attorney general unlawful and asked the government for a letter to be written to the Swiss authorities for the legal proceedings to be restored.

But no one wants to write the damn letter! The court ordered Gilani, as head of the government, to pen it, but because he was loyal to Zardari, he ignored the court’s orders. This one piece of paper just cost Gilani his job and has caused the judiciary to be at loggerheads with the executive over his tenure. The result has been extreme political instability and a prevalence of conspiracy theories predicting military coups. The military, meanwhile, is not explicitly involved in this fight, but the government claims that the generals support the judiciary’s activism, along with the media.

After Gilani did not submit a reply to the court on the July 12 hearing, as President Zardari had signed the controversial immunity bill a day before, the unrelenting Supreme Court decided to give more time to Raja Pervez Ashraf, who is nicknamed “Rental Raja” by the media for allegedly taking kick-backs for renting expensive electricity. He was asked to write a letter to the Swiss authorities and submit a report to the court. Despite Ashraf’s immunity legislation, the Supreme Court ruled that laws applicable to Gilani are also applicable to Ashraf and many petitions have already been submitted to the Supreme and High courts challenging the immunity. Hence, the Supreme Court bench maintained that action would be taken against Ashraf according to the law if he did not write the (damn) letter.

But most Pakistanis do not care about any damn letter. They want electricity, cheap fuel, and, most of all, food and security. The dispute over this letter is causing instability and flight of capital, both of which severely hurt the people’s economic prospects.

Occurring during an election year in Pakistan, this power struggle will continue until the poll happens, while public grievances will be put on the back burner. All eyes will be on the two caviling pillars of state and on whether Prime Minister Ashraf keeps his job. Pakistan’s state institutions will continue to be dysfunctional: the democratically elected government will continue to be unaccountable and disobey the court, while the judiciary will continue to police the executive.

Amid all this squabbling, the average Pakistani – who faces electricity shortages, no jobs, skyrocketing inflation, and rampant violence – will continue to wonder why a damn letter is so important.

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1 Fareeha August 10, 2012

All the law experts including eminent lawyer Aitzaz Ahsan are constantly insisting that the constitution clearly stipulates that the head of state could not be prosecuted. Earlier, former judge of the Indian Supreme Court Markandey Katju had remarked, “Pakistani Supreme Court, particularly its chief justice, has been showing utter lack of restraint. This is not expected of superior courts.” According to Katju, taking a cue from the “principle in British constitutional law, almost every constitution in the world has incorporated a provision giving total immunity to presidents and governors from criminal prosecution.” The Supreme Court has also struck down the contempt law passed last month by parliament on the basis that it is unconstitutional. While the apex court has the authority to declare any primary legislation null and void if it considers it violation of the constitution, the power is usually exercised rarely and with restraint and only in cases wherein fundamental rights specifically enacted in the constitution were directly affected by the offending statute or law. Supreme Court has adopted a self awarded authoritative position, which is clear violation of laws and oath taken by the CJP and his judges. They are guardian of constitution not spoiler but they have assumed an anti-role, leading to complete disaster of system.

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2 Saira Malik October 3, 2012

The problem with judicial activism is not just that systems are not working and the Supreme Court has no choice but to act. The problem is selective activism against a political party with massive gross root support The meddling of judges in politics Considering themselves above the law and accountability
The judiciary is constantly ignoring its role in supporting subversion of constitution by dictators and in fact is responsible for not allowing the institutions to develop The courts should have the humility and wisdom to accept the shortcomings of a fledgling political system And the judges are no above all in wisdom and their attitudes and interpretations can be wrong. There is a widespread concern about corruption in judiciary but no real activism is shown on that account .The lawyers support for judiciary will eventually backfire as people continue to see judiciary partisan biased and in lower courts extremely corrupt.

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