Supreme Court’s (over)steps
“A black day – beginning of the end of democracy!” This is how Asma Jahangir, human rights activist and former president of the Supreme Court Bar Association, has reacted to the Supreme Court’s show cause notice to Prime Minister Raja Pervaiz Ashraf for not writing a letter to the Swiss authorities to prosecute the president on charges of graft.
The ball has been set rolling to disqualify the prime minister – second within a span of few months – for not complying with the apex court’s orders.
One can take issue with Asma Jahangir’s dire prediction that democratic system is now unraveling. Nonetheless those who had thought that better sense would prevail within the government as well as the judiciary have been sorely disappointed.
While the attorney general was seeking more time to “find a way out” of the impasse, the apex court seeing it merely as delaying tactics ominously observed that it would not budge an inch from its judgment on the defunct National Reconciliation Ordinance.
What had probably miffed the honorable judges was the government’s defiant note a day earlier that while remaining within the confines of the constitution it would resist new centers of powers confronting the parliament.
It is obvious that come what may, the prime minister is not going to write to the Swiss authorities on the oft-repeated pretext that the president enjoys immunity under the constitution.
Senator Aitzaz Ahsan thinks that the Supreme Court at times has overstepped its limits beyond the ambit of the constitution. Aitzaz, who defended former Prime Minister Yousaf Raza Gilani against his dismissal by the Supreme Court, has claimed in an interview with the BBC that in the last 500 years, since the emergence of the nation state, not once has a government handed over its head of state to be prosecuted by another government.
The senator is one of those jurists who were perhaps the closest to Chief Justice Ifthikhar Chaudhry during the days of the struggle for his restoration. He played a pivotal role in the restoration of a free and independent judiciary and was incarcerated by Musharraf for defying him. Hence his comments cannot be dismissed merely as fulminations of a lawyer who just lost his case.
The question that begs an answer is what is ailing the system? Is it a clash of institutions or of inflated egos? Whatever way one looks at it, the standoff has dire consequences for the system.
The apex court thinks that there is no danger to the system even if prime ministers come and go in quick succession. After all, heavens did not fall when Gilani had to quit in the light of the Supreme Court’s verdict.
Nonetheless it is not a joke to give marching orders to prime ministers at the drop of a hat. The courts cannot make ‘my way or the highway’ as the bedrock of their decisions and observations.
They have to adopt ways to strengthen the system, not weaken it. After all, at the end of the day an independent judiciary is a function of a flourishing democracy.
Judicial activism is not a phenomenon germane to Pakistan. In other democracies, including that of India, proactive courts can be problematic for the executive. But, not to the extent of packing off governments. Since judges are not elected officials answerable to the electorate, judicial restraint is as much a cardinal principal of democracy as judicial activism.
Recently, the US Supreme Court’s verdict on the Health Care Law is an epitome in judicial restraint. The court, contrary to expectations, upheld the law in three opinions – one by Chief Justice John G Roberts who is a conservative nominated by the former Bush administration, one representing the court’s conservative members and one by courts liberal members. They upheld the law but set boundaries on the powers of the Congress to impose taxes.
Justice Robert’s judgment plainly states that the court exists in a political world, but the Congress is due to the court’s deference. Stating that the voters have the ultimate powers, the prerogative to make policy judgments, he ominously adds, “Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”(Emphasis added).
The perception amongst the ruling party as well as a fairly large swath of the legal fraternity that the apex court in Pakistan is overstepping its limits and is biased towards the PPP leadership needs to be corrected.
As is evident by numerous examples judiciary is not a monolithic entity thriving in a legal cocoon. Previously, it has been playing politics by legitimizing every usurper and coupsters who trampled the constitution under his jackboots. Now the pendulum has however dramatically swung the other way.
The political opposition is deriving vicarious pleasure from the fact that the ruling coalition has painted itself in a corner with the judiciary. But even they know that the judiciary cannot run the administration in the name of activism.
Mian Nawaz Sharif, the born again champion of an independent judiciary, when he was prime minister, could not co-exist with a minimally proactive chief justice, Sajjad Ali Shah.
The Chairman of the Indian Press Council and former judge of the Supreme Court of India, Justice Markandey Katju’s recent remarks made in an article penned by him in The Hindu about Pakistan’s Supreme Court created quite a stir.
These remarks are worth repeating here: The constitution establishes a delicate balance of power, and each of the three organs of the state – the legislature, the executive and the judiciary – must respect each other and not encroach on each other’s domain; otherwise, the system cannot function.
It seems to me that the Pakistani Supreme Court has lost its balance and has gone berserk. If it does not come to its senses now, I am afraid the day is not far off when the constitution will collapse, and the blame will squarely lie with the court, and particularly the chief justice.
This is a harsh denouement. It smacks of the patronizing attitude amongst the elite across the border about Pakistan. No one, including the military, the judiciary or for that matter the politicians, are interested in derailing the incipient democratic system. Nevertheless the stakeholders should give serious thought to the views expressed by prominent jurists both here and abroad.
The writer is Editor, Pakistan Today
Excellent ,
Mr Arif Nizami has further enlightened me. Aitzaz's argument will prevails. Court's deference is must for democracy, now and ever.
AR has further enlightened me. Aitzaz's argument prevails. Court's deference is must for smooth funtioning of democracy.
Please use simple journalistic English language. Avoid the use of most difficult English words. After all urdu media is dominent in Pakistan. English is not the National language in Pakistan.
This is interesting. Which of our political giants has not rubbed their noses under the jackboots of usurpers? Z.A. Bhutto? Y.R. Gilani? Nawaz Sharif? Did Benazir not enter into an NRO with Musharraf and allowed him to be elected as the president by not boycotting the NA session? How many others are there who have behaved much worse than the Judges ever did? Was Z.A. Bhutto not complicit in the break up of Pakistan? And after all was it not a Judge who even when surrounded by several generals for hours refused to give in and but for his standing up to them none of the change towards a democratic set up would have taken place? Was he not all alone at that time? He could have taken an ambassadorial assignment and lived happily ever after? The sad story is that writers such as the author of this article try to discard all of this recent history to support the current rulers.
@Shahid How did u suppose ZAB was complicit in break-up of Pakistan? Was he ruler at the time?In whose hands was power at the time and who did not transfer it to Mujib?Did Nawaz not enter his NRO with Musharaf and signed a 10yrs deal, and in haste did not bother to read it and believed it was for 5 yrs?Example of one judge is not suffice to compensate for judiciary's 65 yrs cooperation with generals and cannot nullify its anti-democratic role. Military ruled the country all over the 65 yrs history and what above-named politicians cud do in absence of political evolutionery process stopped by generals?ZAB revolted against his own general's wrong decision of undermining Pakistan's national interest and launched first democratice struggle against dictatorship and he must have been forgiven from inclusion in the above list. Why arte u siding with anti-democractic and unelected people and opposing democracy?Do u belong to vested interests?
Why in the world is 'Democracy' being equated with non-implementation of Court's orders? is it the new paradigm of progression that whatever corrupt practices our 'leaders' might indulge in; they can always claim 'Democracy' as a new immunity from check and balances? no wonder our progression has touched new depths
Mr. MoazzamShah sahib, what do u say about mammoth and shameful corruption of chief justice proved on TV by FaisalRaza Abdi with documents? Why courts gave stay to TeleComm companies worth 47 billion althoug govt badly needed it in economic crisis? If a political President is corrupt it s not as big a tragedy as a chief justic of a country being corrupt from head to feet? Why his son gave address of CJ house Islamabad for his fake IT Company and spent 30 million on Walima reception of his son? Indeed CJ is 10 times more corrupt than Zardari.
The elusive letter yet to be written to Swiss authorities to reopen Zardari’s deposits is only a battle between the judiciary, hats off to CJP Chaudhry, and saviors of corruption in politics. Judiciary wants the stolen money repatriated to the country, and seedy lawyers in politics are all out to please AZ by protesting against the court decision. In short, it’s a battle between the corrupt and higher judiciary that upholds the cause of the poor of the country.
Mr. MoazzamShah sahib, what do u say about mammoth and shameful corruption of chief justice proved on TV by FaisalRaza Abdi with documents? Why courts gave stay to TeleComm companies worth 47 billion althoug govt badly needed it in economic crisis? If a political President is corrupt it s not as big a tragedy as a chief justic of a country being corrupt from head to feet? Why his son gave address of CJ house Islamabad for his fake IT Company and spent 30 million on Walima reception of his son? Indeed CJ is 10 times more corrupt than Zardari.
And Faisal Raza PressConference was blacked out by most TV channels just to please judiciary and corrupt agencies.
Imagine how all ministers in ruling PPP, various thuggish lawyers like Aitzaz, Asma, Rabani, and rest of the glib stalwarts of the party, are busy doing one thing since the court annulled the sinister NRO in 2010: protect Zardari’s wealth in the Swiss banks. If Zardari’s wealth goes, the rest of the crooks would find the noose tightening round their necks, too. That’s the secret. Slogan: save Zardari, save yourselves.
There can be no greater thug than ChiefJustice who spends 30 million on walima reception of his son and claims he spent money on walima reception from loans of House Building Finance Corporation? Does it not look corruption to you or you are standing upside down? and looking things up side down?
I feel you r standing up side down and Chief Justice corruption is ninvisible to you blinded by partial thinking. What about ill-gotton wealth of your KANA chief justice who is thug of all thugs who is such a big liar that he says he spent money on his son's walima by applying for loan in Housing Building Finance Corp.Does it not look ironic to u coz he lied to HBFC that he will build house instead of walima and then he spent 30 million on his walima in a lahore 5 star hotel. Proof r his bills.
So this is what you mean by Democracy.You do not post comments that reject your argument.
Your comment is still there! Only abusive stuff is not posted!
Best regards
Arif
yup corruption needs to be stopped at all costs Also the Shareefs!!! Also agree why use big, never used words Here in America the goal is to be direct and simple British English may be has taught us this use of flowery language as a sign of being well read, penned??
Let justice be done, though the heavens may fall
Easier said than done!! Can we ever come out of cliches and start living in real world. I fully back AN's article.
What justice? Shud justice not be done in CJ son case and CJ 's 47 billion rupees corruption which he took from Telecomm companies and gave them stay.
Let the son be saved, though the heavens may fall, (Only Judges sonbecause he is also not less a Cow not ordinary but sacred one), Let PMLN be saved though the heavens may fall, Let the PPP crushed though the heavens may fall, Let Jan Nisar Begade may florish, though the heavens may fall, Let the nokri be safe though the heavens may fall, Let LFO cows be sacred and PCO cow be bad though the heavens may fall)
Which one of the Injustice you concider as Justice.
Desperate to defend the crooks under the guise of protecting Democracy. If this is democracy, you can stick it!
Ps
Didn`t Aitzaz argue that a letter could be written until Zardari offered him millions of $ AND THEN HE SAID IT COULDN`T.
@Muhammad What nonsense r u talking about?Shud justice not be done in CJ son case and CJ 's 47 billion rupees corruption which he took from Telecomm companies and gave them stay.
@Muhammad it seems you believe in inverted morality. Why r u not up against CJ son's documentarily proved corruption with his bank statements showing chief justice house islamabad? Why CJ and his son are so bold to put up CJ House Islamabad as head office for his fake IT Company? Because they know that clowns like you will come to support you unashamedly.
In any new system we need a strong leadership who can lead by example especially the rule of law…this is opposite in Pakistan, hence, the role of judiciary / CJ exerting their intepretation of law is justified in the face of numeroue defiances of court orders…the list is long.May I ask the author, what type of restraints by the judiciary is expected to live by ?…let the crooks go on looting & plunder & continue to mismanage the state…is this not detrimental to the very existence of our country, system comes later if the country survives from corruption etc; which has entrenched into the society to such an extent that every Tom, Dick & Harry is busy looting & not bothered about the lives of the poor people in the street….
A very well written analytical unbiased article by Nizami sb.
An excellent article! Nizami sahib, you did very good analysis regarding about poltical situation. Judicary is really overlaping his domains, this will not good for the pakistan. Judical activism will derail the both democracy and judicary.
Parveen wasi(USA)
Pakistani democracy is a shame & shit; I am jobless after Engg degree after more than a year.
We don't want this Democracy which bring shame in any case .what language should people use to show their unrest .every thing is clear the looting the corruption ,unlawlessness .i can't see in what way we are enjoying Democracy or how it's doing any good to us .Democracy means government of people by the people for the people but this government is clearly not .and synchronisation of Democracy and judiciary are getting bleak .
Seems you have been paid out by agencies or corrupt politicans or judges who have accumulated enough money by giving 47 billion rupees stay to Telecomm companies and earning thru fake IT companies of CJ son who is so shameless and bold that he put up Chief Justice House Islamabad as his address on his fake IT company bank account. If CJ can spend 30 million on his son walima reception, his son may be doling out money to clowns like you.
whatever reasons and how u interpret-the fact is that SCP has given full four years to Zaradri sahib bYy procrastinating the action against president on his political,partisan conduct of his office warranting immediate disqualification.SCP is only giving every time under the sun to mr zardari which he is abusing to destroy country.
Every one seems to be speaking Zardari's language. The fish is rotting from the head. Very soon the whole body will be rotten.
Why r u speak corrupt Thief Justice of Pakistan's language who is the biggest liar and gets loan for walim of his son by applying to HouseBuildingFinanceCorporation and spends 30 million? Did HBFC gave him load of 30 million for his son walima reception?The biggest liar says he has no plot but his son walima 30 millions were spent. You r also a shameless liar like your corrupt Cheif Justice.
I did not use any abusive still my coments not posted; is this democracy?
no it is not democracy it is Judicial Marshal Law. Some Sacred Cows are eating the nectar of your nation. Do not make a contempt to them. It is not good for health to talk against cows because they are sacred
All the people above who support corrupt judicary and corrupt CJ have been paid out by anti-democracy forces like judges, NawazSharif and agencies. They r not writting anything against judiciary corruption.Seems you have been paid out by agencies or corrupt politicans or judges who have accumulated enough money by giving 47 billion rupees stay to Telecomm companies and earning thru fake IT companies of CJ son who is so shameless and bold that he put up Chief Justice House Islamabad as his address on his fake IT company bank account. If CJ can spend 30 million on his son walima reception, his son may be doling out money to clowns like you.
What about money paid to Journalists writing in favour of shame democracy?
He is not the Chief Justice he is the Thief Justice of Pakistan. He is the biggest liar in Pakistan who says he took loan from HouseBuildinFinanceCorporation for walima of his son (ChiefJustice own statement). But see how ridiculous? HBFC gives loan for house building not for walima?Hahaha Then see how much he spent on walima of his son???30 million rupees and hotel bills r proof shown by FaisalRazaAbdi in his press conference and CheifJustice family has not denied this as yet. CJ is biggest corrupt and liar in this country.
Shud justice not be done in CJ son case and CJ 's 47 billion rupees corruption which he took from Telecomm companies and gave them stay.
How sweet it is to have a hand in Benazir Income support Program.
In sixty-five years, what have the elected or nominated parliamentarians done for the national interest? This is the first time that the Supreme Court is deciding cases and is bravely facing the brackish parliamentarians. We have not seen it before and are seeing it now. We saw it during the trumped up trial of ZAB that ultimately hanged him. However, that was a highly prejudiced case.
'Judicial Activism' or 'Jihadi Court' are pseudonyms coined by a disgruntled group of persons. Suppose, the Supreme Court dilutes its approach, do you really think these federal and provincial parliamentarians will get down to seriously working for the State? Let ten Prime Ministers go home. As time passes, the composition of the court will change but with it will our GOP also change its flippant attitude to a more responsible one in favor of the people of this country?
The two vital ingredients missing in the Parliament firstly, is a willingness to accept fault and resign and secondly a neutral police force.
With the PPP presently under fire, cases against the PML N and Q must also be re-opened and pursued vigorously, at least by the NAB without any let-up.
Please laugh at me and pray that my pen down approach is wrong because Inshallah there is a 'light at the end of the tunnel.' Salams to PT.
But It should be done as if Judiciary is blind against everyone. But they are one eyed, They Just can see corruption of PPP while they favor PMLN. They can see the son of Gilani But they save their own son. Injustice of this kind will never let them flourish. They are goign to end game of their own existance.
Monsoon Frogs are coming out in defence of Zardari clique … just becaise the US has still some use left yet of Zardari clique …
Jan Nisar Brigade is trying to save corrupt son and father. But they will fail. Yes Bay Shumar Jan Nisar Brigade are not only Monsoon Frogs but they are gutter frogs.
Every one seems to be speaking Zardari's language. The fish is rotting from the head. Very soon the whole body will be rotten.
I agree with you Sir.
Sir, Very accurate analysis…the justice benders are doing no good for democracy..they are on a mission..like ex president of supreme court bar Asma Jehangir said. The current bar president has also asked Supreme court for restraint. These are logical and cool headed people whose advise shall be lishtened…thank you
How can possible that justice destruct democracy, rather injustice destruct democracy, and justice never be compromised at any cost even this country goes into civil war. we try understand the importance of justice and ready to pay the cost of justice.
we are a strange nation we lake in molarity and take situations on the compromises and we don't know our compromises pay the cost of entire nation.
you know how democracy become strong when the true and good politician reach inside the parliament, its depend on the parliamentarians top of it, rest our only may help them but once they reach their then start corruptions and when you pointed out them then they make noise and use to say that we are destroying democracy. stop fooling ourself please.
Injustce destruct democracy. Injustice against ZA Bhutto, Injustice against PPP, Injustice against Paliment, Injustice by favoring dictatorship, Injustice by making on son safe, Injustice by callin others real blames as contempt while servign on blaming others. Yes it is Injustice of Judiciary that destruct democracy.
A very balanced column. Analytical.
I would like to request the management to post all comments irrespective of views expressed. But there should be no place for abusive & vulgar comments.
A state can exit without democraczy but no state even democratic can exit without justice and equity period.
A state can exist wihout demorcracy but no state even democratic can exit without justice and equity period. I think you understand JUSTICE in you phrase is not the person favoring Marshal Law, Not the person favoring own son, Not the person blaming other and declaring himself as Sacred Cow, Not the person Asking others to remin in Ideal Juctice conditions and himself going below the average.
Any one knows the meaning of democracy?
In Pakistan Govt. Elected by the people, Run by boots or Cows(not ordinary but sacred), For their own agendas of saving sons, Saving PMLN, crushing PPP, encouraging Jan Nisaran Bragade, Watching TVs, And deciding the fate of people after being impressed by an anchor, approciating Mullahs, and becomming a satinless steel wall in front of people to save Dictators.
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