Tag Archives: interpretations

Judicial hyperactivism is threatening democracy in Pakistan

By: Junaid Qaiser

Pakistan is known for its weak political institutions, powerful army, several military coups and the infamous Article 58(2)-(B) that was used to send elected prime ministers to home or jail.

But this time around we are seeing a slightly different technique when the three member bench of the Supreme Court declared Yousuf Raza Gilani disqualified from holding a seat in the parliament from the date of his conviction on April 26 by a seven-member bench for contempt of court. A prime minister, who enjoyed confidence of the Parliament, who even before taking the oath of office, ordered release of the judges sacked and detained by former military ruler Gen Pervez Musharraf and later reinstated all the deposed judges on 16th March 2009 through an executive order. Many renowned experts as well as common person termed the ouster of elected PM similar to a judicial coup.

The Twitterities are using the hashtag #JudicialCoup to explain a new (invented)mechanism to oust an elected government.

The judges’ restoration movement, has been wrongly termed by many as a new beginning for Pakistan, as it’s not only failed to create and develop space for civilian supremacy, but also emerged a main hurdle in democratic evolution. And, today, we are more concerned than ever about the political instability. International media and observers place Pakistan in the category of countries, where parliament is continuously under sieges.

Pakistan’s judiciary has a very controversial history, which had never opposed, even the unconstitutional actions of the military dictators. The frequent imposition of martial laws, abrogation and suspension of constitutions were acts of treason under the law but were frequently validated by our apex courts.

In Maulvi Tamizuddin Khan versus the Federation of Pakistan, Justice Munir declared that the Assembly was not a sovereign body. He gave the ruling that the Constitutional Assembly had “lived in a fool’s paradise if it was ever seized with the notion that it was the sovereign body of the state”. The wording may be slightly different but the mindset remain the same, when the present Chief Justice said that the concept of parliament’s sovereignty was ages old so it was not so it was not applicable now. Historians feel that Justice Munir destroyed Pakistan’s constitutional basis when he denied the existence of Assembly’s sovereignty, and further harmed it by not indicating where sovereignty resided. It is quite obvious that historians will also judge the serious consequences of the present role of the judiciary for parliamentary democracy in Pakistan.

The observation by Justice Munir in Dosso versus the Federation of Pakistan, that a successful coup is a legal method of changing a constitution, sets the basis for the Commander-in-Chief of Pakistan Army, General Ayub Khan, to takeover the government from Iskandar Mirza. Ironically, the military takeover by General Ayub Khan on October 27, 1958, took place one day after the decision of the court was announced. By November 10, 1977, a nine-member bench of the Supreme Court of Pakistan, headed by Chief Justice Sheikh Anwarul Haq, unanimously validated the imposition of martial law under the ‘doctrine of necessity’. The judgment provided cover to the unconstitutional act of General Ziaul Haq and even gave him authority to make changes in the constitution. And in the Zafar Ali Shah case, the Supreme Court had granted three years to General Musharraf to hold elections and amend the Constitution and, in turn, General Musharraf gave three-year extension in service to the then incumbent judges.

Continue reading Judicial hyperactivism is threatening democracy in Pakistan

For the good of democracy – By Farrukh Khan Pitafi

Democracy means government by the uneducated, while aristocracy means government by the badly educated.” — Gilbert K Chesterton

At a juncture when the propinquity of a truly democratic order was almost being taken for granted, Pakistan suffered the biggest disaster since the hanging of Zulfikar Ali Bhutto. A three-member bench headed by the Chief Justice of Pakistan, who has vowed to protect democracy, sacked a democratically-elected prime minister on a matter of constitutional interpretation.

The sacked man, Yousaf Raza Gilani, and his party accepted the ruling with grace and nominated another candidate. But the day the prime ministerial nominee, Makhdum Shahabuddin, was to file his nomination papers, an anti-narcotics court issued a non-bailable warrant for his arrest, on a case that had been pending for weeks. Imagine, a court waking up on that precise day. The powers that be in the Islamic republic do not seem to care much for democracy. I have previously expressed hope in the growth of democracy and the institution building process. With the prime minister removed through an undemocratic, albeit legal method, that optimism cannot be sustained. It is clear that this is not the case of institutions clashing over boundaries, but disputes concerning other matters. Of course, the ruling party, too, is responsible for this sorry tale.

In Islamabad’s drawing rooms, it is being speculated that a government of technocrats backed by the army will soon be installed through a soft coup. Those who make these claims, carry a list of candidates for each ministry. Another theory is that the judiciary-executive tussle will result in the announcement of early elections and when the assemblies are dismissed, names in the aforementioned list will be adjusted in the caretaker cabinet, which in time, will be granted two to three years of extension. As the sacking of a prime minister and embarrassing an elected government by asking it to write a letter against its own head of state can be considered akin to protecting democracy, there is little doubt that this would also strengthen democracy.

Change may come in any shape, but if it comes through any means other than fresh elections, it will be detrimental. And change will definitely come. But let us fix responsibility for any undemocratic development. It should be remembered that the current democratic dispensation was founded on an intricate masonry of checks and balances. One function of the independent judiciary was to protect democracy. While it might have protected it from a military takeover, it has not been able to protect it from its own wrath. You can foresee the entire system collapsing. Some would say that the protectors of the Constitution have plunged the nation into another crisis-ridden bog.

If any undemocratic change comes, our armchair theoreticians assure us, it will not be limited to the cabinet and parliament alone, but will affect the judiciary as well. Perhaps, our judicial custodians have forgotten that they are part of the very democratic order that their recent verdicts seem to have so negatively impacted.

Courtesy:  The Express Tribune, June 23rd, 2012.

A French minister of Arab origin says ‘there is no such thing as moderate Islam’

By AFP

Paris – A French minister said there was no such thing as moderate Islam, calling recent election successes by Islamic parties in Egypt, Morocco and Tunisia “worrying” in an interview published Saturday.

Jeannette Bougrab, a junior minister with responsibility for youth, told Le Parisien newspaper that legislation based on Islamic sharia law “inevitably” imposed restrictions on rights and freedoms.

Bougrab is of Algerian origin, whose father fought on the French colonial side during Algeria’s war of independence, and said she was speaking as “a French woman of Arab origin.”

“It’s very worrying,” she was quoted as saying. “I don’t know of any moderate Islam.”

“There are no half measures with sharia,” she added. “I am a lawyer and you can make all the theological, literal or fundamental interpretations of it that you like but law based on sharia is inevitably a restriction on freedom, especially freedom of conscience.” ….

Read more » AL ARABIYA NEWS

Hoisting flags, foisting identities.

By Urooj Zia

The Bhartiya Janata Party (BJP) seems intent on hoisting the tricolour at Lal Chowk in Srinagar. While patriotism might be the pretext for this ‘tiranga yatra’, the underlying narrative is vile nose-thumbing at a people who have been oppressed under distorted interpretations of patriotism and related politics. As such, it wouldn’t be surprising if the BJP bigwigs either hoist the tiranga under heavy paramilitary protection and curfew, or are forced to make a run for it amidst a barrage of stone-pelting.

This entire circus of faux-nationalism, meanwhile, finds a parallel in Balochistan, Pakistan’s restive south-western province, where sighting the chand-tara means that one is either close to a Frontier Corps (FC) check-post or near the entrance of the Balochistan University campus in Quetta. The latter is guarded by FC personnel in APCs, because students have made a sport of replacing the Pakistani flag with the colours of Azad Balochistan.

Early last year, I had the chance to witness firsthand the brutalities meted out to the people of Balochistan by the same people tasked with protecting the citizens of Pakistan. Perhaps the forces in question don’t consider the Baloch citizens of this country, in which case, it is ironic how we insist on holding on to an area and a people whom we otherise as traitors. Over a kilometre on Sariab Road in Quetta, I spotted no less than 10 FC check-posts, where vehicles were arbitrarily stopped and passengers were ordered to disembark. A thorough body search was then conducted, and further treatment depended on the whim of the officer in question. Those stopped were either ordered to recite the national anthem of Pakistan, or told to chant ‘Pakistan Zindabad’. If the sloganeering was not deemed ‘patriotic’ enough, a repeat performance was ordered for as long as the officer wished. …

Read more : uroojzia