Can the Judiciary Save the Coalition?

Unfortunately, according to the recent Gallup survey, 81% of the Pakistani people want the same Chief Justice back. You are one of the 19% (including the don't cares and maybes) regardless of your considering the 81% stupid and yourself wise.

So I'm sad to inform you that your brilliant effort at writing this lengthy article (which I haven't read but got the idea from the first few lines) was all in-vain.

As a lawyer, I strongly believe that an independent judiciary must always exist in any national power structure, mainly to check the other institutions, to which end judicial activism is invariably an important tool.

Nevertheless although it is acceptable and indeed imperative (in an ideal world) for the Pakistani judiciary to be an independent power structure, the inevitably impoverished nature of our Parliamentarians in every instance, shall always be the nation's undoing. In effect the very democratic process in Pakistan will compel judicial activism and/or result in a weak, subservient judiciary. A democratically elected Pakistani parliament, representative of the will of the people, shall thus pursue injustice by default, which is why an independent Judiciary is simply not compatible with Pakistani democracy.

Similarly the quality of other institutions such as the Police and other related agencies, by which the Judiciary enforces its jurisdiction leave much to be desired.

Pakistani institutions have to be established from the top-down, rather than any of those other ways recommended by the Americans. Sensibly, and indeed following every other successful government and nation in history; the institutions come first, the democracy and the will of the public later. These previous elections were simply machinations on the part of a number of power-hungry actors, imperialists and their lackeys to dislodge the military for fear that any actual progress, change in status-quo or stability may be attained. The role of the Judiciary, in so far as its intentions in all of this thus becomes suspect.

Throughout the article you have been giving the impression
that you are about to divulge the sinister motives behind the CJs actions.well that did not happen and you threw a bombshell by asking the CJ to put on the garb of a saint.
I could not figure out if you are lobbying for the PPP or army, or both.
May be it is to much to ask for intellectual integrity from any corner in this country.

The article is long but the issues discussed really needed some background info.

I agree with the author that the kind of judicial activism seen in Pakistan by CJ Choudry would have destroyed a democratic or a civilian government too. However, CJ’s actions against the army regime were appropriate and his effort clearly was to place an out of control military regime under control. So an exception can be made. When the Pak army can set aside the constitution pretty much at will, a Supreme Court can also counter with increased activism. His actions actually helped the democratic cause in Pakistan. Without his efforts, the 2008 elections in Pakistan would have been another farce like the 2002 elections.

Second point the author raised is an interesting one too.
He is implying that the PPP wants to ensure that there is no repeat of 2007 by any Judiciary in Pakistan. This is a legitimate concern. They don’t want any CJ to disrupt the civilian government with some nifty judicial moves. I think the CJ, the Lawyers and Nawaz group should address this and agree to some constitutions restrictions on the Supreme Court.

He makes an interesting call for the Judges and the lawyers to step aside for the time being. I really never thought of the issue in this way. The Judiciary issue might bring the coalition down and along with that any hope for the civilian rule might be dashed for a long time.

Can the country afford that? It took almost 9 years to get to where the country is now. The efforts made during 2007 would be hard to duplicate as probably no one has the stamina to sustain that for a long period of time. CJ made a political call when he defied the army and he can be rewarded for that in many different ways. So perhaps, he should think about removing himself and allowing the parties to make a deal.

I also agree that the restoration of judges would not make or break the country. And that the reinstatement of the CJ is no guarantee that the army would not interfere again. He will eventually retire and we might see some toady CJ after him do what others were doing before him i.e rubber stamping the military rule. The political parties can again take up that issue in the next three or four months after they have gained control and have the ability to shake things up in both FATA and Baluchistan.

They should concentrate on changes in the constitution that everyone agrees on like 58 2(b) and remove extra layers of power that Musharaf has right now.

Zafar Sahib, Welcome to this forum.

HP sain,

(have the ability to shake things up in both FATA and Baluchistan. )

What exactly is your defintion of shaking up things in B'stan and FATA?

1. Truce with the disaffected elements.
OR
2. Military victory over them.

Regards

Whether after the restoration; the Chief Justice is impartial as he wasn't, which seemed reflected throughout in the column, needs to be seen. As now the military has backed off, political trauma of a different kind has set in. America, to some extent has grow uneasy and its temples are shone with mild sweat; civilian activity, unprecedented, is not fading.
Scenario has changed though.
Moreover, vilifying the judge being too personal in some cases; why don't we retrospect our 'revered' politicians' lot who went on rampage in corruption; got legislations changed because they weren't eligible to be graduates. So why blame one when everyone is so?

Whether after the restoration; the Chief Justice is impartial as he wasn't, which seemed reflected throughout in the column, needs to be seen. As now the military has backed off, political trauma of a different kind has set in. America, to some extent has grow uneasy and its temples are shone with mild sweat; civilian activity, unprecedented, is not fading.
Scenario has changed though.
Moreover, vilifying the judge being too personal in some cases; why don't we retrospect our 'revered' politicians' lot who went on rampage in corruption; got legislations changed because they weren't eligible to be graduates. So why blame one when everyone is so?

Re: # 4 HP

Your thesis about judicial activism of CJ is wrong. The term judicial activism applies when a certain judiciary tries to interpret constitution to favor a particular ideological point of view. There was no such effort by judiciary when Choudry sahib was acctive as Chief Justice. When he took over as the Chief Justice, there were over 40,000 cases pending in SC. With in a short period of time of merely 2 years, under the leadership of Chowdry Sahib SC was able to close 37,000+ cases. During that period SC took suo moto action on 7000 cases in addition and delivered justice. This is unprecedented in the history of judiciary in the world.

It only means that SC judges started doing their job honestly for which they had taken oath. Cheif Justices interference in the matters of Steel Mill and disappeared citizens was not judicial activism either. He was merely doing his job. The constitution of Pakistan before foujis fukked it provides gurantees to the citizens of Pakistan. How making sure that those gurantees are properly executed, judicial activism? Yes the actions of CJ Sahib would have brought down even a democratically elected government if that government was that corrupt, inefficient, and lawless as the current Martial Law for the past 8 years is.

#8 Posted by Urstruly
“The term judicial activism applies when a certain judiciary tries to interpret constitution to favor a particular ideological point of view.”

Judicial activism is a term used by political commentators to describe a tendency by judges to consider outcomes, attitudinal preferences, and other public policy issues in interpreting applicable existing law.

So it is not restricted to just the constitution alone.

“It only means that SC judges started doing their job honestly for which they had taken oath. Cheif Justices interference in the matters of Steel Mill and disappeared citizens was not judicial activism either.”

So they woke up after eight years and that is fine. They can wake up whenever they want but it is judicial activism when there is no precedence of the Supreme Court involvement at this level. Just take the sua moto actions in 2007 vs. in 2006, 05, 04 or even before that in the history of the Supreme Court and you would know.

Don’t get me wrong. I am not opposed to what the CJ did to the army dictatorship because that did open some avenues for protests against the army rule. He is to be commended for putting his life, his job, and his position at risk when the army appeared to be completely in control and it seemed that no one could challenge the then crypto-maniac and now the Paktrash archetype Musharaf.

However, denying that the CJ’s motives were not political would be like being too naïve to know how political games in Pakistan are played. Just remember that before him, Justice Sajjad tried to play the same game with Nawaz circa 1998 before that Justice Sajjad brought down his benefactor Benazir and Zardari who made Sajjad the CJ.

“Yes the actions of CJ Sahib would have brought down even a democratically elected government if that government was that corrupt, inefficient, and lawless as the current Martial Law for the past 8 years is”

Who decides that in a democratic set up? It is something called elections and the Parliament. The SC may take up cases of corruption as they are referred to it or occasionally may take Suo Moto actions. That is what the danger is when you have an out of control judiciary. If we look at Pak’s history, every army general on assuming powers blamed the corruption in the civilian governments for the coup. Now Do you want the Judiciary to have the same power to bring down governments for perceived or real corruption? That is empowering another institution to act like the army has been acting for the last 50 years.

You see restoring the Judges is important because they were sacked illegally and unconstitutionally. Redressing that may be a priority but I think it is not huge enough to derail whatever little gains have been made. The highest priory should be FATA and Baluchistan. These two issues are directly related with the state and its remaining one entity or multiple entities.

The Pak army is a criminal enterprise and entrenched for the last 50 years. Fighting it requires lots of patience and enormous will along with the constant public support.

You see the fight in Pakistan is not with Musharaf, it is with the army. He is just one face of the army. The US is another interested party in Pakistan and they hold not only most of the aces but also guns and planes. Restoring the judges will not change a thing for the army or the US. And you know it.

Dada,
1. Truce with the disaffected elements.
OR
2. Military victory over them."

Now if you had known the issues, you would not have phrased the solutions so simply.

Thanks to the NROed Zardari the question is not, can the judiciary save the coalition -- but can the coalition save the Judiciary?

HP sain,

(Now if you had known the issues, you would not have phrased the solutions so simply.)

So why dont you spell out the issues and also the (alternative) solution for us plebs?

Regards

I disagree with HP on this one. The most important issue facing the country today is the restoration of the Judges. As you all might recall, I had stated clearly that the Judicial Crisis pre November was manufactured by the Pak Army/US in order to get Musharraf out of his uniform, it produced the unintended consequence of the lawyers movement. A movement that does not see eye to eye with the judges, so you would recall that when they termed the objection against Musharraf's presidential election "umnanageable", the lawyers took to the streets to protest this same CJ. Now the CJ is a thug but the restoration of these judges who were removed unconstitutionally sets a very bad precident for military rule, moreso than any alliance that the PPP or N can come up with, which thus far has been a molding of them into the Q image, to legitimize the farce of the elections. If this country has to change the judges MUST be restored immediately, the restored court will be beholden more to the people and the lawyers than to the military if such a precident is set, that is guaranteed, therefore there is no issue facing the country at this moment that is more important than this otherwise the status quo will ensure the repeat of what happened in the past and these new civilian leaders will return to their thuggish ways. If PPP prevents this, the N should resign wholesale from the parliament and join the lawyers movement and other assorted boycotters to challenge this farcial elections of Feb and to restore the constitution which de-facto is still in abeyance, and will be until and unless the judges are restored and the thug sitting in the presidential chair is removed and hanged

later......

Re: # 9 HP

"Now Do you want the Judiciary to have the same power to bring down governments for perceived or real corruption? That is empowering another institution to act like the army has been acting for the last 50 years."


That is where you are wrong. The judicial process does not and cannot work on perceptions (of corruption), it works on hard evidence, witness, and letter of the law. The takes over using their guns basing their cases on perceived corruption. Isn't it true that Army ultimately had to eat their own excrement thru National Reconciliation Ordnance? This is difference between the two processes.

Now take the example of the case of Steel Mill. The CJ did not interfere in the deal thru a suo moto action, but more than one petitions were filed by citizens. Regardless of political motivations, it is the constitutional right of a citizen to challenge any action of a government in SC. The case was still being debated in SC, but the deal itself was so shameless, so blatant, and so rancid that the dictator and his minions had to back off. If they were right then why did they back off?

But had this case gone through the SC to its end. There is nothing in the law to prevent someone to sell something cheap - even if it is a state asset being sold by the state. The CJ could not have prevented this deal by application of law, where there is none. So it is just hogwash that "judiciary went out of control" propagated by dictator and his corrupt minions. As a citizen of Pakistan we must beware of these zaleel tactics of these shameless haramis.

"The take over using their guns..."

should be read as " It is the army that takes over using their guns basing their ...."