Pakistan Faces Judicial Activism Against Executive

The tension between the executive and the judiciary seems to be declining after meeting between the prime minister and the chief justice. In accordance with the expectations, the executive have acceded to all demands of the judiciary and thus the ongoing arguments in the Supreme Court on the matter would perhaps now come to an end.
In view of many people, the executive had perhaps no other option because in a case wherein the Supreme Court is petitioner as well as jury, the chances of the acceptance of the government's viewpoint were very slight.

Appointment of Judges
During this confrontation, the numerous loyalists of the chief justice spread among the lawyers and in the courts also demonstrated their full strength. Although the Supreme Court had cancelled the official notification of the appointment of judges the same evening, the lawyers tried to observe strike throughout the country and in this effort, the judiciary also took part in performance of the constitutional duty of further strengthening the relations between the bar and the bench by extending full cooperation to the loyalists of the chief justice.
According to BBC (British Broadcasting Corporation) reports, a group of lawyers appeared in courts at various places in Sindh opposing the boycott call but the judges did not sit in the courts. The executive committee of the Lahore High Court, in a meeting chaired by Chief Justice Khawaja Muhammad Sharif, decided to hear the cases of only emergent and immediate nature and instructions were issued to hear such cases in the chambers of the judges only. The rest of the cases were sacrificed for the loyalists of the chief justice.
It is pertinent to mention that the latest confrontation between the judiciary and the executive started with the elevation of Justice Khwaja Sharif to the Supreme Court and he had immediately refused to accept it. Thus, he had the status of a major party to the issue.

Institutional Strength
The foundation for rising up of the judiciary and lawyers as an institutional strength was laid during the movement that started in reaction to the confrontation between the judiciary and Pervez Musharraf in 2007. This institutional strength has, however, reached at this stage under influence of the desire of the judiciary to become a powerful party in the decisions on state affairs instead of gaining strength as an impartial institution.
During the movement for restoration of the judiciary in the Pervez Musharraf era, the leader of the movement, Chaudhry Aitzaz Ahsan, often used to say in his speeches that if the military is proud of its khaki uniform, we (the lawyers who wear black coats) are not less than anybody else. Thus, the lawyers, who did not refrain from torturing their opponents, continued increasing their street power. In the meantime, arrangements were made, under the slogans of the constitution duty of cooperation between the bar and the bench, for the lawyer leaders and the judiciary embracing each other. Perhaps, the two sides found this hug so much delightful that instead of separating, they now prefer to constantly stay attached to each other. Top institutions now also seem helpless in the face of the new power that emerged because of this prolonged hugging.

Restoration of Judiciary
Expressing his views about the 14 February strike of lawyers, Chaudhry Aitzaz Ahsan said that in principle he was opposed to it but he did not appear in the court on that day because a decision about the strike was taken by majority of the lawyers. It means that he can go to the extreme in opposing the majority decisions of his party for adhering to his principles and can also start a long march even against his party's government for upholding the principles. But despite showing his opposition before the power that emerged as an outcome of hugging between the judiciary and lawyers, he finds himself helpless before the majority decision. The snake charmers in the ranks of lawyers have set off such flames that nobody is now safe from their heat.
During the movement for the restoration of the judiciary under the Musharraf rule, the leaders of the movement often argued that new PCO (Provisional Constitution Order) judges led by Chief Justice Abdul Hameed Dogar are product of a dictator so the court would not be able to deliver justice in the presence of such partial judges. Those judges are gone but perhaps the judges having the same opinion could be appointed to fill the seats vacated by them.
Perhaps, this is not by chance that the Supreme Court full bench gives a unanimous decision and even a single judge does not oppose that decision. Just like the military discipline demands that every command of the chief justice is taken as the final, our independent judiciary too would possibly not disappoint its loyalists. With the mutual efforts of the bar and the bench, the power of the judiciary is now taking a new shape. Who says our institutions lack the discipline?

Opposition to Presidential Notification
Whereas the majority of lawyers opposed the first presidential notification for appointment of judges, some legal snake charmers touching the extremes in opposition to the notification accused the president of even the contempt of court and treason. Over many similar other steps of the contempt of court, however, they never issued a statement. According to one of our friends, a contempt of court case for the independence of an independent judiciary is pending since long and enjoys the status of a litmus test for providing the independence of the judiciary.
During the Pervez Musharraf era, Fakharuddin G. Ibrahim had filed an application in a court for return of Nawaz Sharif. The Supreme Court had ruled that Nawaz Sharif can return to the country and no hurdle is creating in the way of his comeback. All of us had, however, seen that in spite of the judiciary being independent during the Musharraf era, the former prime minister of the country was bundled into an aircraft and sent back. The sound of this power strike on the judiciary is still echoing. Now, the judiciary can exhibit its independence by giving a verdict in that case of the contempt of court.

Lacking Independence of Judiciary
Currently, Pakistan has a democratic government. The judiciary is independent and powerful. The legal snake charmers are vigorously playing their pungi (a wind instrument used by snake charmers). The petitioner (Nawaz Sharif) is also in the country and Fakhruddin G. Ibrahim is also present.
The government officials who had committed contempt of court by sending Nawaz Sharif back to Saudi Arabia are also there and the chief justice is also the same. But the independent judiciary is missing from this case in spite of having independence.

Government-Judiciary Standoff in Pakistan

The government decision of 13 February on the appointment of judges is being strongly criticized by all. The government wanted to appoint Chief Justice Khawaja Shareef of the Lahore High Court as a Judge in the Supreme Court, and Justice Saqib Nisar as the Chief justice of the Lahore High Court. The government issued the notification for these appointments, but it was immediately nullified by a three-member bench of the Supreme Court.
The court announced 18 February as the date for further hearings on the subject. The relations of the judiciary and the executive were strained, but the politicians and the common people never expected that the President's Camp would take such extreme action. However some reliable sources have revealed that this drama went exactly according to script because the script-writers wanted to take the country toward midterm elections.

Degradation of Values
Even this confrontation may take us toward midterm elections. This vague and murky situation can definitely damage any one party. President Asif Ali Zardari may have to quit. To defuse the situation, some ministers have given confusing statements which, I am afraid, may not work out.
In a previous column I pointed out that the time has come when people are beginning to lose patience. Incongruous policies are increasing the problems of the common people. Price hikes, injustice, the law and order situation and denial of merit have made the life of the common man very miserable. Look at the miseries of the people. When they do not find any catharsis, they tend to commit suicide or come out on the streets in retaliation against social deprivation. In fact, many start selling their own children. The stone-hearted elites of this society are not pushed at all. I have been to many countries, both developed and under-developed, but no where in the world have I seen people selling their own children. It is the lowest possible limit of degradation of the values of our society.
The rulers of Europe and America truly serve their people. If some one commits suicide due to hunger or poverty, the complete society is shaken up. People come out on the streets and make life miserable for their rulers. People in those societies cannot even think of selling their children. The European Union has recently passed a resolution which will be enforced in all its 27 member countries. The resolution states that all human beings are equal, no one is superior to another and the protection of the honor and self esteem of every individual is the responsibility of the state. But our rulers have deformed the shape of our own constitution. One does not find even a single amendment in favor of the poor masses.

Signs of Good Governance
Now, people are talking about mid-term elections and there is a hue and cry to remove all those people who are responsible for the current fiasco. When we look for signs of good governance or concern for the welfare of the people, all governments look alike. I have seen the previous governments of the Pakistan People's Party (PPP) and Pakistan Muslim League-Nawaz (PML-N) as well. Now I am seeing the third government of the PPP struggling for its survival. Of the two parties, the period of the PML-N looks comparatively better. The Pakistan Muslim League can fare even better provided it discontinues its policy of a One-Man-Show, and allows space so that democratic norms may germinate within the party.
It is still a mystery why the government rejected the summary sent by the Chief Justice. I am afraid some forces in the government may want to remove the President from office or dislodge the democratic government. Double agents are within the rank and file of the government, but the rulers have been unable to recognize them. And, by the time they do, it will be too late. The present situation is ideal for these intriguing forces. These forces will be successful in killing two birds with one stone.
However, the Opposition is also preparing for the final round. Nawaz Sharif's press conference of 14 February 2010 was a clear indication of these preparations. This time he openly criticized President Zardari and labeled him a threat to democracy. His statement gives an indication that political forces are now at the brink of losing patience. These forces believe that in the presence of President Zardari, Pakistan may not be able to develop good relations with other countries.

Impression of Confrontation
On 15 February, Prime Minister Syed Yousuf Raza Gilani addressed parliament and spoke at length on the appointment of the judges. The crux of his speech was that the Parliament also holds weight and, on sensitive issues, the position of the Parliament is superior. But his statement that the judiciary was restored through an executive order, which awaits ratification by the parliament, created a stir. In a sense it was a threat to the judiciary that the executive order could still be reversed. After this statement the political barometer shot up. It gave birth to yet another legal debate.
The impression of confrontation between the government and the judiciary must be defused immediately. In this connection, the government should cancel the notification issued on 13 February 2010 and accept the recommendations of the Chief Justice. In the war of Titans the winner will be the one who enjoys the support of the masses and stands firm on moral grounds. Due to sheer bad luck and incongruous policies, the government may not succeed in its goals.