Judicial activisim
February 17, 2012
Many in the Islamic Republic of Pakistan pin their hopes on the Supreme Court as a rebalancing force in a country that has been largely dominated by powerful army generals and corrupt civilian politicians.
At the forefront of this judicial activism is the Chief Justice of the Supreme Court, Iftikhar Muhammad Chaudhry. Chaudhry was sacked by the former Pakistani president and army chief Pervez Musharraf in 2007; a move that triggered nationwide resistance by lawyers in support of Chaudhry. Pakistani civil society and the private media also backed the lawyers' movement, which finally culminated in the restoration of Chaudhry as the apex court chief.
High-profile cases
The Supreme Court of Pakistan is hearing some high-profile corruption cases against Prime Minister Yusuf Raza Gilani and President Asif Ali Zardari. The court has recently charged the Prime Minister with contempt for refusing to write a letter to the Swiss authorities to re-open graft cases against President Zardari, which the Swiss government shelved in 2008. The incumbent Pakistan People's Party government says the cases are ''politically motivated" and cannot be re-opened while Zardari remains head of state and enjoys presidential immunity.
The government is also facing an unfolding scandal known as "memogate" revolving around a letter written to the US government with the request to rein in the Pakistani army and its generals to prevent a possible coup following the assassination of Osama bin Laden in May last year. President Zardari and his government deny any involvement in the scandal, which opposition parties claim undermines Pakistan's security and national sovereignty. The Pakistani courts are currently investigating this alleged "act of treason."
More significantly, in an unprecedented move, the apex court also ordered two military agencies to explain the illegal detention of suspected militants who have been held for 18 months without charges.
The court's actions are a significant turnaround in the Pakistani domestic politics. For much of Pakistan's history, courts have been pliant to the army's demands and validated three military coups against civilian prime ministers.
The judges have also taken up a case pending for fifteen years in which the military’s Inter-Services Intelligence (ISI) is accused of financially supporting political parties opposed to slain former prime minister and leader of the Pakistan People's Party, Benazir Bhutto.
What makes Chaudhry a force to reckon with?
Ayaz Amir, leader of the opposition Pakistan Muslim League (N) of former prime minister Nawaz Sharif, said the Supreme Court had done some remarkable things. "The day when the Prime Minister was indicted for contempt, the ISI was forced by the Chief Justice to bring forth seven detainees. These things had never happened in Pakistan; the intelligence agencies being held accountable," Amir told Deutsche Welle.
Amir also said Chaudhry's strength were the lawyers who played a pivotal role in his reinstatement. "A number of political parties also supported Chaudhry, including the PPP. So there is, to some extent, a popular support for what he (Chaudhry) is doing," said Amir. However, Amir was not in favor of eulogizing the Supreme Court. "The Supreme Court is attracting some criticism from various quarters that it is guilty of straying into areas that don't fall under its purview," he added.
Dr. Riaz Ahmed, professor at Karachi University, told Deutsche Welle that it would be too simplistic to think that judiciary was emerging as an alternative force to the military and the civilians. "The ruling class in Pakistan seems to be divided on the issue of international capitalism. The local capitalist is angry that Zardari's government has not been transparent in giving contracts to international companies. The local industrialists and capitalists demand a fair game so that their interests are also protected. The judiciary, in my opinion, is trying to safeguard the interest of the domestic capital," opined Ahmed.
"Propaganda against civilians"
Supporters of the PPP are of the view that the judiciary is backed by Pakistan's ubiquitous army and the ISI, and is trying to undermine the supremacy of parliament and civilian democracy.
Harris Khalique, an Islamabad-based political analyst and human rights activist, believes certain groups are pulling the strings from behind the curtain in an attempt to dislodge the civilian government.
"They (the rulers) are not being ousted for being corrupt and incompetent; they are being ousted because there is a tug of war between institutions about who holds more power and who actually calls the shots in Pakistan," Khalique told Deutche Welle.
Khalique says the PPP has come under increasing pressure from what he termed "propaganda," particularly in the mainstream media, which sought only to highlight the administration's failings.
Ahmed, on the contrary, said the civilian rulers were not being maligned. "Which civilian politician is being tried in court? The contempt of court decision is not a trial in that sense. The Minister of Defense has never been summoned to the court. On the contrary, these are the military and security officials that have appeared before the court," he said.
A right-wing judiciary?
Some liberals in Pakistan also criticize the judiciary for its alleged support to the right-wing parties and groups. They argue that the courts are extremely lenient towards religious outfits, in particular the Taliban operatives and the ones that openly preach extremism in the country. There have been instances where the pro-Chaudhry lawyers have publicly supported controversial Islamic laws such as the Blasphemy Law.
Pakistani human rights activist Abdul Hai observes that a liberal party like the PPP, which is believed to be more pro-Washington than others, is not acceptable to the country's military, which is believed to be more supportive of right-wing groups and Pakistan's more conservative political parties.
Dr. Riaz Ahmed is of the view that judiciary is neither right-wing or left-wing; it is merely supporting the interest of a class. "The right wing in the Pakistani context means a political alignment that supports the army," said Ahmed. "If this is the case then how do you explain this contradiction that Iftikhar Chaudhry stood up against the then army chief General Pervez Musharraf in 2007?" he questioned.
Judicial reforms
Some Pakistani experts are of the opinion that a lot depends on the decisions the Supreme Court is going to take on cases involving civilian leaders and military agencies, and how it casts off the impression that it is hostile towards the ruling PPP. They also believe the Supreme Court needs to reform the judicial system and the widespread corruption in the lower courts.
Author: Shamil Shams
Editor: Arun Chowdhury