Democracy in peril

Pakistan Supreme Court is trying to assume the role of a moral guardian throwing the countrys constitution to the wind.

In Pakistan, the struggle for the independence of the judiciary has been co-terminus with the struggle for the democracy itself. And this is quite natural because the judiciary can be independent only in a democracy. Pakistan has a history of judges being sacked or forced to resign mostly by the military government.

But the clock seems to have turned back and a history of sorts has been created with the sacking of an elected prime minster by the Supreme Court. Chief Justice Iftikhar Mohammed Chaudhry is on a hyper-active mode after his reinstatement to the post following huge public uproar over his dismissal on March 8, 2007 by then President Gen Pervez Musharraf. On April 26 last, a seven-judge bench of the Supreme Court had held then prime minister Yousuf Raza Gilani guilty of contempt of court for having defied the court’s directive to write to Swiss authorities asking them to open corruption cases against President Asif Ali Zardari. On June 19 last, a three-judge bench headed by Chaudhry disqualified Gilani and declared the post of prime minister vacant since that date.

It was nothing short of judicial coup which introduced instability and turmoil in the Pak polity which has hardly seen any stability, thanks to the overpowering army. Gilani was slated to create a history of sort by becoming the first prime minister to have completed his term and bring in stability in the failed state but ironically he was ousted by a judicial fiat, not by any military coup. Besides, Pakistan has a consistent record of its prime ministers being dismissed by the president. President Zardari, however, did not sack Gilani as he was the most trusted and true to his loyalty he stood by Zardari in the hour of crisis rightly arguing that the president enjoyed immunity from criminal prosecution under the constitution. Section 248 (2) of the Pakistan constitution reads: “No criminal proceedings whatsoever shall be instituted or continued against the president or governor in any court during his term of office.”

The language is too simple and clear to allow any equivocation and the Pakistani Supreme Court has mauled the constitution by overruling its express provision. Constitutions of most of the countries including India have such a provision which is based on the British jurisprudence that the king can do no wrong. The premise is quite simple that the system cannot function if the head of the state is forced to stand as an accused in the witness box in a criminal case. In its over-activism, the Supreme Court has set a dangerous trend giving the army an opportunity to intervene in the name of bringing stability.

Warrant for arrest

The Pakistan national Assembly, instead of confronting the apex court, chose to tread a conciliatory path by removing Gilani and nominating Makhdoom Shahabuddin as his successor. However, no sooner had Shahabuddin’s name been announced than an anti-narcotics court in Rawalpindi issued a warrant for arrest of the prime minister-designate who was to be sworn in soon. He was quickly replaced by Raja Pervez Ashraf, who has now been asked by the Supreme Court to take up the issue with Swiss authorities.

What is the jurisdiction of the court? Can it go on enlarging its jurisdiction like this negating democracy? Is it just a co-incidence that Chief Justice Chaudhry has gone belligerent and rather berserk when his son Dr Arsalan Chaudhry has been publicly accused of accepting a bribe of Rs 34 crore from an industrialist, Riyaz Malik, for getting favourable orders in the cases pending before the Supreme Court. Justice Chaudhry does have a chequered past.

The judiciary in Pakistan has always been in the control of rulers, and the struggle for its independence has been on the national agenda since Maulvi Tameezuddin case against the dismissal of the Constituent Assembly by governor-general Ghulam Mohammed. Its Supreme Court is the only court in the world to have given cover to military rulers under its novel doctrine of necessity. In 1958, Chief Justice Muhammad Munir upheld the military takeover of the government by Gen Ayub Khan under a novel doctrine of revolutionary legality that where revolution is successful it satisfies the test of efficacy and creates a basic law creating facts. Martial Law was declared throughout the country and commander-in-chief of the Pakistan army was appointed the Chief Martial Law Administrator. A bench headed by Chief Justice Muhammad Munir upheld the proclamation stating: “A victorious revolution or a successful coup d’ E’tat is an internationally recognised legal method of changing a constitution.” He added that even courts lost their existing jurisdiction and could function only within the parameters prescribed by the new constitution.

Again, the usurpation of power by Gen Yahya Khan, who declared martial law on April 1, 1969, was challenged in the Asma Jilani case, and this time though the Supreme Court (1972) rejected the doctrine of revolutionary legality, it invented the doctrine of necessity holding that ignoring the necessity would lead to disastrous consequences to the body politic.  The Supreme Court also upheld the coup led by Gen Pervez Musharraf under the doctrine of necessity and the principle of salus populi est suprema lex (the welfare of the people is the supreme law). But now the Supreme Court is trying to assume the role of a moral guardian throwing the constitution to the wind.