It is critical for members of the legal community to understand these viewpoints since there is a hesitancy within this group to confront the notion that the judiciary’s actions may no longer carry with it the consent of the public at large or the so-called ‘civil society’. This is possibly due to the heavy ideological investment which they made on the restoration of the judiciary just a few years ago. They are now unable to divorce themselves from a blindly loyalist approach, reducing themselves to mere soldiers, marching in step, rather than professionals trained in critical thought, which they are meant to be.
One of the first reports to appear in the foreign press was by Declan Walsh of The New York Times:
“The true target of Justice Chaudhry’s order, though, may have been President Zardari. The two men have been at odds since 2009, when Mr. Zardari opposed Justice Chaudhry’s reinstatement. They have engaged in proxy combat through the courts ever since; ...
For Justice Chaudhry, the action also offered a convenient diversion from an awkward turn of events: less than a week ago, the judge found himself explaining his personal finances in court after a billionaire property developer with close ties to both the Pakistan Peoples Party and the military came out with explosive corruption allegations against his family.”
In his report, Walsh has raised the spectre of personal motivations behind the Supreme Court’s disqualification of Gilani. This appears to be common theme in how the disqualification order has been perceived. In an interview with Viewpoint Online, Ayesha Siddiqa, a scholar of Pakistani history and politics raised similar concerns. Responding to a question on the implications of the verdict, she responded:
“This is an intense political battle in which the Supreme Court is not neutral but a party as well. Look at the Supreme Court's comparative behaviour. There are times when it bails out murderers and looters but does not spare the ruling party in particular. Its wrath is mainly for the PPP and the chief judge seems to be making sure that he can ensure the PPP government's ouster especially since he is now worried about his son being investigated ...
This is not a routine democratic change. In fact, it represents the new tactics of the military and its agencies. Instead of ousting the entire Parliament, the military gets rid of prime ministers which has the same effect meaning a weak democracy. The judges seem to have become party to this.”
Siddiqa’s words speak for them self. Not only does she attack the impartiality of the Supreme Court, she also raises the possibility that recent events are being engineered to the advantage of the ‘deep state’.
Mohammed Hanif, a Pakistani writer of no small repute, has also offered a similar take on situation. In an article in The Guardian, he says:
“This court is not as much in love with the rule of law as with the sound of its own sermonising voice. It has also mastered the art of selective justice. The same Supreme Court that has been sitting on an ISI corruption case for 15 years, the same judiciary that can't look a retired general in the eye or force a serving colonel to appear in court, feels it perfectly constitutional to send a unanimously elected prime minister home. ...
The military, indeed, sulking after a series of humiliations at home and abroad, is watching from the sidelines. Some would say it's even gloating at the prospect of civilian institutions cutting each other down to size, traditionally its job.
There was a time in Pakistan when people joked: why hire a lawyer when you can buy a judge? Now you can't buy them because they are too busy shopping for a place in history.”
Hanif is clearly of the view that the Supreme Court’s verdict follows from the personal aspirations of the judges involved rather than objective judicial decision-making. He too, like Siddiqa, argues that it is the military establishment which stands to gain from the stance taken by the Supreme Court.
Finally, we have a particularly polarising op-ed published by The Hindu. This comment was all the more striking since it was put forward by Mr. Justice Katju, a former judge of the Indian Supreme Court and current Chairman of the Press Trust of India. It approaches the matter from a legal perspective
“The Constitution establishes a delicate balance of power and each of the three organs of the state — the legislature, the executive and the judiciary – must respect each other and not encroach into each other’s domain, otherwise the system cannot function. It seems to me that the Pakistani Supreme Court has lost its balance and gone berserk. If it does not now come to its senses I am afraid the day is not far off when the Constitution will collapse, and the blame will squarely lie with the court, and particularly its Chief Justice.”
When this comment was reported in a prominent Pakistani English news website, it was bombarded by reactionary comments attacking the source rather than the arguments raised. Most seemed to focus on how the writer was an ‘Indian’ who should ‘mind his own business’. It should be noted that not only was the suo moto procedure pioneered by Indian courts but also that the Indian Supreme Court’s judgments have always been a critical source for the development of our own legal system. What is more, Mr. Justice Katju was part of a particularly activist Indian Supreme Court, in its own right. Therefore, his take on the situation is not only relevant but highly critical in understanding what the disqualification means from a legal perspective.
It is unfortunate that rather than engaging with or absorbing this criticism, the legal community as a whole has chosen to ignore it all together. The fact is that the Supreme Court is itself on trial today. Its much-publicised stance that it acts as ‘the will of the people’ will soon ring very hollow indeed, if it does not even consider what the people themselves appear to be saying.
The writer is a lawyer practicing in Karachi.
The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group.