Is Gilani’s indictment good for democracy?

Published: February 14, 2012

SC charges PM with contempt, gives him till Feb 27 to submit defence; next hearing on Feb 22 . DESIGN: FAIZAN DAWOOD

With the news that the Pakistani Supreme Court, in a widely expected hearing, indicted Prime Minister Gilani yesterday morning, it is becoming increasingly clear that the two national institutions, the judiciary and the civilian government, are headed for a full-on collision.

Despite statements over the weekend, where the Prime Minister seemed resigned to losing office, there is little indication that a resignation from the PPP stalwart is coming any time soon. If Gilani is indeed destined to cede power, it will likely come at the behest of the Chief Justice Chaudhry and his court. As chaotic and unpleasant as the entire circumstance has been, this is an exercise in the democratic process, albeit not a perfect one, and should the exercise be completed in the full spirit of the law, Pakistan will be better for it.

But the exercise is coming perilously close to one party usurping and exerting power in a counterproductive way. Undoubtedly, it is the judiciary that comes from a position of strength in this conflict, as it has the authority to subpoena, indict, charge, and convict anyone in the country, and as it has shown, its scope includes leaders of the civilian government as well as more clandestine operatives such as the ISI. With that scope and authority, the courts have a responsibility to ensure that their branch of government does not also become a harbinger of distrust and unfairness. For starters, Monday’s indictment came as no surprise to anybody, as the Prime Minister’s appeal against the contempt charges were denied just days earlier by essentially the same judicial body. To demand the genuine trust and credibility of Pakistanis, the court needs to have a system of checks on their own powers. Creating a separate court of appeals, or a similar body that is excluded from a conflict of interest, would be a good starting point. There are simply too many opportunities for the opponents of the courts to politicize the judiciary. More so, for the long-term betterment of the democratic process, eliminating conflicts of interest from the judicial branch is a must.

It is hard to imagine that Gilani and his government come unscathed from this confrontation. If the court does not convict Gilani, it will be only because the Prime Minister will have preemptively given in to the demands. Either way, the reputation and standing of the government will be scathed, and the PPP’s critics of the courts will come out in condemnation of Chaudhry and company. The court has already been condemned to being labeled as “politically motivated”, and such attacks will only continue to intensify by proponents of the government. Despite the politicization, the country needs a strong judicial system, and it needs a court that does not back down from taking on traditionally powerful institutions, such as the civilian government or the ISI – so long as its legal challenges are merited.

Pakistanis have a long and detailed history of being let down by their political institutions. Credibility and perception, therefore, are paramount in how the courts pursue their cases. While the Chief Justice Chaudhry is a popular figure in Pakistan today, the efforts to demonize him by his opponents can certainly bare fruit. Give it enough time, and they will. The democratic process is contingent upon successfully holding accountable any and all transgressors of the constitution. This court has bravely strived to do that. But it is critical that the courts refrain from becoming perceived as political institutions with conflicts of interest; something that will only accomplish by building more checks and balances into the judiciary itself.

Read more by Aziz here.

aziz.nayani

Aziz Nayani

Is a writer who currently lives in Cambridge, Massachusetts. His work has appeared on the Huffington Post and Foreign Policy's AfPak Channel. He tweets @AzizNayani

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.

  • AAAK

    Hell yesRecommend

  • buttjee

    Gilani’s indictment and subsequent award of punishment by the Honourable Supreme Court of Pakistan will surely strengthen the democracy in Pakistan. People of Pakistan except for some top men in PPP, do not see any collision between the institutions. The court has already demonstrated extra ordinary restraint and given ample time and chance to the PM to act upon the court orders but he has shown no respect for the court ruling. As a matter of fact it is a very simple case which has been intentionally dragged and made a bone of contention. An earlier letter written to the Swiss courts by ex Attorney General has been declared illegal and without any lawful authority. The Government is now required to write another letter to the Swiss court requesting them to disregard the earlier letter. If at all any unpleasant situation develops between the government and the Supreme Court then its responsibility will wrest squarely on the Government itself.Recommend

  • Chew Chew

    We lost PIA, Railway, OGDC, increased million dollar debts, deteriorated economy,unemployment, inflation …!!! Now we have democracy, most corrupt PM in Pakistan’s history, Empty and lifeless slogans and..!!!yes.. BB & Bhutto graves …who are still alive!!…Recommend

  • Saud

    Pakistan’s history shows that the Supreme Court has acted as a hand-maiden of various dictators throughout history, sanctifying military coups from Ayub to Musharraf. This history obviously reduces the legitimacy of the court in the eyes of the people and makes their motives suspect.

    The judiciary should not only be fair and independent but it should also have checks and balances on its power. In the US, federal judges can be impeached by the Congress. In Pakistan, there is no parliamentary mechanism to remove a political and/or corrupt judge.

    Pakistan needs parliamentary oversight of the Supreme Court judges.Recommend

  • Ahmad

    A selective application of justice will always be harmful, regardless of the conditions. The SC had no problem terminating services of civil servants in the government who were on extensions but did not demand that the COAS and DG ISI be dismissed as well. Indeed, it has admitted a petition seeking to preemptively block this move. The politically motivated charge is not without merit. The PM gets a contempt notice over a piece of paper, yet the ISI/MI have a free ride for illegally detaining 11 people (that we know of, there are countless others) that the LHC specifically set free for lack of evidence. Is that not violation of the courts direct order? Where is the contempt charge for that? In fact, the PM is well within his rights to not write the letter due to Article 248. Writing the letter is an exercise in futility. So, in conclusion, detaining people illegally and torturing them, then killing them, OK. Not writing a letter, contempt of court.

    You also call the civilian government a powerful institution which is plain wrong. But the conflict of interest point is certainly valid. The SC has (or should have) no jurisdiction to try a case it brought on its own motion.Recommend

  • Muhammad Hanif Awan

    JUSTICE should be seen/done equal for all n even handedRecommend

  • Parvez

    Its a step in the right direction. The destination being a democratic dispensation, which as of now is still far away.Recommend

  • Irshad Khan

    A country, created to give protection to the poor and deprived Muslims of sub-continent is being looted and destroyed by rich and powerful in the name of democracy.Recommend

  • Irshad Khan

    When-ever PM or any other Minister/dignatory is called in SC, most of the Federal and even Provincial Ministers accompany him there, while some of them travelling from long distances, by Air and stay in Islam-Abad, causing heavy expenditure from publics money, further, there is no work in offices. It seems a governments/public holiday in the country with a great hype like a festival, while all TVchannels and radios are on in offices and houses! What is the purpose of this show and what is the loss to the nation? If any body will take notice and stop it through an strict order to save lot of money and a propaganda movement against institutions/personalities.Recommend

  • BADARD INSSAN

    LAHORE: An intelligence asset who was a major source of information for many years in the former Ehtasab Bureau, forerunner of the current National Accountability Bureau (NAB), still awaits the national accolade announced for him fourteen years back.
    The award money is also sorely missed.
    Aamir Ahsen Khan, in his days as an intelligence agent, played an instrumental role in assisting the Bureau to recover Rs3 billion from the Schon Group.
    Fourteen years on, the Tamgha-e-Imtiaz announced for his feat remains elusive.
    Khan, while talking to The Express Tribune, revealed that he had been physically abused by the then-sitting chairman of Ehtesaab Bureau for not acceding to his demands.
    The chairman wanted Khan to accept nominal prize money and sign to have received the full amount.
    “When I refused to do so, as a matter of principle, Saifur Rehman and his brother Mujeebur Rehman physically assaulted me,” Khan said.
    Khan was working as a senior manager maintenance with the Schon Group in 1997 when he was pressurised to sign bogus bills of Rs640 million.
    According to the intensive ‘transparency’ policy of the time, as well as the Ehtasab/NAB ordinance 1999, the informant was to be paid the (widely publicised) reward money of 10% of the recovered amount.
    The then-prime minster Nawaz Sharif had personally seen the application of Khan, marking it for the release of reward, according to the documents obtained by The Express Tribune. The documents further reveal that after exposing the corruption of Schon Group, Khan wrote numerous letters and had personal audience with the officials concerned. He was assured that his case will be dealt on a priority basis. That failed to materialise.
    In the tenure of former president Pervez Musharraf, NAB Chairman Naved Ahsan referred Khan’s case to the ousted DG NAB Kausar Iqbal, who deliberately delayed it for another 6 years, Khan alleged.
    He was subsequently left with no option but to seek Justice from Chief Justice Iftikhar Muhammad Chaudhry.
    When contacted, NAB officials familiar with the matter confirmed Khan’s claims.
    Sources in NAB say that Khan has a strong case. If taken up by the court, NAB and the government will be left with no option but to pay the due reward, they added.
    Published in The Express Tribune, February 13th, 2012.Recommend

  • Shahan

    More checks and balances needed. Without it, government does what it wants. Recommend

  • buttjee

    @Ahmad:
    We should not drag every tom, dick and harry into discussion in the the name of selective justice. When you have corrupt leaders sitting in the highest positions of the country, disobeying court verdicts and openly violating the rules of business then it becomes all the more important to deal with them first. If the top men are punished for their wrong doings then all others will be forced to put their house in order. In any case Yousuf Raza Gilani cannot be absolved of his guilt only because some one else has yet not been tried, for a similar act.Recommend

  • Bilal Afzal

    People not only need food, cloth and shelter but they also need justice. Indictment of Supreme Court regarding PM manifests that no one is above the law and no on can save his skin from the long arm of law. It is also a point of concern that SC had been a tool in the hands of former dictators but this judicial activism not only started against the dictator but it also toppled the government of the dictator. So, comparing it with the earlier submissive courts would be injustice. Also, if someone else is not being held accountable in SC, it doesn’t mean that no one should be held responsible and everyone should give impunity from law. There are probabilities that this decision can be political motivated move but PM himself created the opportunity for his adversaries. As, SC reminded him time and again vis-à-vis writing the letter to Swiss government but he never did so and blatantly defied the orders of the court. Also, what has the PM positive in his bucket? Are they blackouts, collapse of public sector institution, maladministration of country affairs, the highest ever debt over the country, distrust for international community. More importantly, he doesn’t have a confidence of a people and people’s opinion is the strongest court of the country.Recommend

  • rex minor

    Stop playing around with words which are foreign to Pakistan. Pakistan does not have a democracy, but definitely a dysfunctional Govt! Pakistan institution are equivalent to headless chickens who are running around in opposite directions each considering his domain as the chief. Hw can a court indict a stting elected Prime Minister, who has the immunity of the Parliament. The prosction must request the Parliament to set aside the immunity of the Prime Minister, before they can prosecute and eventualy indict him?

    This scenario has just occured in Germany in the last 24 hrs to the President of the republic. Well, the President has resigned and now the way is clear for the prosecutor to proceed with his investigations of alleged corruption and if the charge can be supported with evidence, the case will then go the court for a trial.

    I say to MESSRS Gllani, Zardari and thde supremo to stop playing the kindergarten spiel and sort ut the mess with the yanks who are getting ready to set up permanent military bases in Pakistan.Recommend