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The current judiciary-executive standoff

We are posting Marvi Sirmed’s bold and controversial piece that made waves today in Pakistan’s media. This piece entitled “Let reason prevail” has a clear line and PTH does not necessarily subscribe to this point of view (editors).

There is a judicial crisis, the media says. This claim seems to be correct if one realises the level of urgency the Supreme Court showed in responding to a presidential notification. This notification was nothing bigger than the elevation of the senior-most judge of the Lahore High Court (LHC) to the Supreme Court and the subsequent appointment of the second senior judge as the Acting Chief Justice of the LHC. Those having objections to the president’s notification say it violated Article 177 of the Constitution. The said Article provides for a consultation with the Chief Justice (CJ) of the Supreme Court prior to making such appointments, but it does not give a definition of the “consultation”. It is also true that the CJ Supreme Court sent a summary to the president who subsequently rejected it and sent it back. The allegation of “not consulting the CJ” thus becomes irrelevant. Article 177 does not make the CJ’s recommendation binding on the president.

Interestingly, elevating a judge of a lower court to the apex court and appointing the next senior judge as acting chief justice of the lower court does not seem to either derail democracy or attack on the independence of the judiciary. It rather seems to be quite in accordance with the principle of seniority set by the Supreme Court in 1996 (Al-Jihad Trust Case). However, it is noteworthy that a five-member bench of the Supreme Court headed by the then Chief Justice Sheikh Riaz Ahmad and including the controversial Justice Hameed Dogar, set aside the seniority principle in the Appointment of Judges Case in 2002. Insisting on following this judgement made under the dictatorial regime is going to raise questions on the independent judiciary.

The technical side of the whole issue aside, there is an ugly political side to it as well, which amply puts everything in perspective. Justice Khwaja Sharif, whose elevation is in question, is a former member of a city council from Muslim League (now PML — N) and a family friend of the Sharifs, which makes it easier for the Sharif brothers to rule Punjab comfortably compared to a situation where a non-partisan judge becomes the Chief Justice of LHC. In order to secure their undisturbed political future, the Sharif brothers are understandably leaving no stone unturned to keep Justice Khwaja Sharif in as the CJ of the LHC.

What irks an objective mind is why the Supreme Court is making the presidential decision a point of friction? Sections of the media, in connivance with the PML-N, are doing no good to democracy by insisting on something as visibly partisan as his demand to keep Justice Khwaja Sharif in the LHC. In a well-attended press conference in Islamabad, Mian Nawaz Sharif termed the presidential notification an attack on the judiciary, and the president himself as the biggest threat to democracy. Both these statements make him appear a political pygmy, as he could not answer one simple question: how will keeping Justice Khwaja Sharif in the LHC ensure democracy and the independence of the judiciary? Not that this question was put to him in the press conference, which appeared like an internal meeting of the PML-N.

In all this tumult, we are forgetting what is at stake. A section of the media is putting the credibility of the entire media at risk by siding blindly with the political interests of one political party. Chasing small-term superficial benefits and satisfying the fragile egos of a few anchorpersons is going to curtail the freedom of the media at the hands of the media itself. Freedom is not necessarily attacked only through curbs by the government. Rather, the media itself has to ensure that one actor of the political arena does not exploit the media for its own selfish political interests. Freedom of the media does not rest in freedom to use strong abusive words against someone. It rather rests in the freedom to report the facts. If the media restrains itself from reporting the facts and continues with an opinionated and partisan media trial of anybody who fails to offer a competitive benefits package, it surely is going to erode not only the media’s credibility in the eyes of the people, but will rob it of its own freedom.

The second casualty of this unrealistic and false hype about a concocted ‘judicial crisis’ would be the judiciary. It is quite sad to see the judiciary endangering its own independence by insisting on something that could best be described as its tilt towards those who marched for Justice Iftikhar Chaudhry’s restoration. Also, putting aside the principle of seniority following the judgement under a dictator’s regime would set a tradition not very different from the infamous doctrine of necessity, which everyone thought has been buried forever. Lamentable, also, is the fact that the judiciary has already invoked the controversial clauses of the Constitution introduced by another dictator in a recent case against the NRO. It is sheer disappointment for the progressive sections of society who sided with the CJ for his restoration all through the months of struggle.

This is the point to ponder for Mian Nawaz Sharif too, who has announced in his press conference on Sunday that his party will take to the streets if Justice Khwaja is elevated to the Supreme Court. Despite frequently violating the Charter of Democracy (CoD) on many counts, he keeps trumpeting about the continuation of democracy and upholding the independence of the judiciary. Advocating the appointment of a Supreme Court judge on one person’s choice rather than following the constitutional procedure of appointment by the president, Mian Nawaz Sharif is once again making himself hostage to the 1990s’ frictional politics.

Last but not least, the people of Pakistan, who have been the ultimate casualty in every crisis induced by the interests of a few, have to think objectively. For once, we all need to refuse to play in the hands of those who are pursuing nothing but their own vested interests. Many of us might have an opinion against the policies or persons of either Mr Zardari or Mr Sharif, but we have to keep our sanity intact and let reason prevail. Justice Khwaja or no Justice Khwaja, the Constitution and the spirit of democracy should be considered supreme.

The writer is an independent blogger and freelance columnist. She can be reached at www.marvisirmed.com

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8 Responses to "The current judiciary-executive standoff"

  1. tahir Pakistan Unknow Browser Unknow Os says:

    how will keeping Justice Khwaja Sharif in the LHC ensure democracy and the independence of the judiciary?
    Hasn’t Khawaja’s elevation to Supreme Court led to
    self created juidicial crisis?
    Isn’t it going to lead to another long march?

    I am not supporter of Nawaz Sharif but his statement about Zardari makes sense.

  2. hoss United States Unknow Browser Unknow Os says:

    Marvi,
    Tookah khabar ahay tu cha po likhian?

  3. yasserlatifhamdani Pakistan Unknow Browser Unknow Os says:

    As things stand … with 260 in the field… consultation and the recommendation and concurrence of the CJP seems to be binding within the parameters of the 2002 judgment.

    The real point is whether this is how should be?

  4. yasserlatifhamdani Pakistan Unknow Browser Unknow Os says:

    “how will keeping Justice Khwaja Sharif in the LHC ensure democracy and the independence of the judiciary?”

    I hope this is addressed to the CJP….

  5. Sadia Hussain Pakistan Unknow Browser Unknow Os says:

    The rift between judiciary and executive if it lasts any longer will take down both the institutions. We need to strike a balance so that executive is given the freedom to perform the duties of governance. Judicial activism is needed in a country like Pakistan where voices of marginalized are rarely heard but this activism should also entail more pressing public issues such as the speedy trails of terrorists so that one can see justice being served.

  6. Tilsim United Kingdom Unknow Browser Unknow Os says:

    Great article. The accusation that this all about keeping a pro ML-N judge in place at LHC rings very true. I believe any deviation from the seniority principle for elevation must be thoroughly explained in writing and be subject to a second process such as a parliamentary review committee.

  7. Hayyer India Unknow Browser Unknow Os says:

    That is political not judicious indeed.

  8. banjara286 United States Unknow Browser Unknow Os says:

    black coats have become black mailers. its another black day in the inglorious political history of Pakistan.

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