Pak judiciary strikes

I have always considered that the success of lawyers’ movement in Pakistan in 2008 was its first war of independence. The formation of Pakistan was the result of a peaceful agreement which it signed with India under the aegis of the British government.

The primacy of Pakistan’s Supreme Court is because of that movement. There was a time when the Supreme Court would uphold the army coups as it did in the cases of Gen Mohammad Ayub and Gen Zia-ul Haq. A new interpretation to the constitution, the rule of ‘necessity,’ was provided to give legitimacy to the coups.

The court has now graduated to be a powerful entity so as to arraign even prime minister Yusuf Reza Gilani for contempt and indict him. He, in turn, has challenged the judgment and has decided to prove the charges wrong through evidence he will provide in the next few days.

Supreme Court’s chief justice is the same Iftikhar Mohammad Chaudhry who suffered at the hands of the army because he dared to go against the wishes of then chief of army staff Gen Pervez Musharraf. Justice Chaudhry was confined to one room, along with his family, for months and made to undergo more or less a solitary imprisonment.  That in a country, where all other institutions are tottering, the emergence of Supreme Court is indeed evoking hope for the future of democracy. After all, the judiciary is the bedrock in such a system.

Yet I have not been able to understand the logic of criticism that by strengthening the judiciary, the polity is weakening because such a process is at the expense of the power that the executive and parliament enjoy. For instance, the institutions in India have gained because of a series of judgments.

The recent one, which Gilani’s lawyer Aitzaz Ahsan has quoted to defend the Pakistan prime minister, is the cancellation of 122 licences of allotment in the 2G spectrum scandal on the ground that prime minister Manmohan Singh did not know about the letters which his office (PMO) had received from the indicted former telecom minister A Raja. The blame was put on the officials and advisers. So has been the tenor of Aitzaz Ahsan’s arguments before the Pakistan Supreme Court.

By kicking up the dust, the real issue of corruption cannot be obscured. President Asif Ali Zardari is said to have laundered billions of dollars and stashed in Swiss banks. The fact that then president Musharraf condoned the crime through an ordinance  does not mean that Zardari can appropriate the money which really belongs to the Pakistan exchequer. Gilani is only Zardari’s face. He owes his office to him and therefore it was natural that he should take the responsibility of Zardari’s acts of omission and commission.

Questionable immunity

Gilani’s defence that Zardari enjoys immunity under the constitution may be all right for legal purposes, although the Supreme Court would probe whether immunity is absolute or whether it can be questioned in any way. At least the Supreme Court can order that the money stashed abroad be brought back to Pakistan even if it ‘remains’ in Zardari’s account. Immunity means that no action can be taken against Zardari since he is the president who enjoys such powers under the constitution. Yet immunity cannot be stretched to a point where Zardari is not directed to transfer back the stashed money to the Pakistani banks.

Chief Justice Chaudhry was not lessening the stature of the executive by asking Gilani to write to the Swiss authorities to reopen the case of Zardari’s assets in banks in that country. That Gilani sits over the court’s order for more than two years shows his disdain for the judiciary. And this also shows the arrogance of the executive. To characterise a case of corruption as an attack on government or, for that matter, parliament, is not to see the wood for the trees. The corrupt, however high in position, should be brought to book to revive people’s faith in democracy. Too many instances of graft in South Asian countries involving top people have disfigured democracy in the region and there is no worthwhile legislation for combating graft.

The black money, stashed abroad, is going to haunt the Manmohan Singh government because the director of Central Bureau of Investigation (CBI) has said at a public forum that the Indians have unaccounted money, as much as Rs 24.5 lakh crore (about $500 billion) in banks abroad. He has also been frank enough to say: “If king is immoral, so will be the subjects.”

The normal reaction after the disclosure would have been an all-out effort to get back the money. Yet there is no worthwhile action because many depositors belong to political parties, including the ruling Congress. The CBI director has himself admitted that it would be difficult to bring back the money: “The probe is complex, time consuming, costly and requires political will.”

Now that the example of Pakistan’s Supreme Court is before us, some individuals can approach our Supreme Court to direct the government to bring back the money to India. Here the hurdle of immunity does not come in. The committee which the Supreme Court appointed in an earlier case to look into the matter is too slow in processing. Some shock treatment to the government is needed.