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Justice Louise Arbour Concerned About Direction of Pakistan’s Supreme Court

Justice Louise Arbour has a distinguished career devoted to promoting the principles of justice. Currently serving as the President of the International Crisis Group, Justice Arbour is the former UN High Commissioner for Human Rights, a former justice of the Supreme Court of Canada and the Court of Appeal for Ontario and a former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda. As such, she knows a thing or two about the importance of an independent judiciary in developing countries and emerging democracies. That’s why, when Justice Arbour expresses concerns about the looming constitutional crisis in Pakistan, her concerns merit serious consideration.

An ardent supporter of Pakistan’s 2007 “Lawyer’s Movement” to restore judges deposed by Gen. Musharraf, Justice Arbour had hoped to see a new era for the Court, one that broke with its past of supporting military dictators and their mangling the Constitution and the rule of law. Today, she fears that those same justices have become “intoxicated with their own independence,” and that the current direction of Pakistan’s Supreme Court Justices threatens to upend the very democratic order that restored them to the bench.

Speaking to a crowded auditorium at the Woodrow Wilson Center in Washington, DC, Justice Arbour noted that the current tension between Pakistan’s Supreme Court and its elected officials might seem like a political soap opera were it not for Court’s history of collusion with the military to suppress democracy. Judges “who took an oath to a military dictator are not well placed to make the decision” to remove democratically elected officials, she observed, referring to Chief Justice Iftikhar Chaudhry’s 1999 oath under Gen. Musharraf’s Provisional Constitutional Order (PCO). While not inevitable, Justice Arbour said, it is possible that Pakistan’s Supreme Court could end up dissolving the democratically elected government with the help of the military, putting in place an extended caretaker government in what would be, for all intents and purposes, another coup.

During her visit to Pakistan, she assured the room, she met with no government officials. Her interest was in the views of the legal community, whom she found deeply divided, seemingly on political lines. This troubled the former Justice, who worries that Pakistan’s Supreme Court has become increasingly politicized, threatening its credibility. She pointed to the memo commission, which she said “reflected very poorly on the judiciary,” and added to the appearance of growing politicization.

The present case, in which the Supreme Court has ordered the Prime Minister to write a letter to Swiss authorities requesting that criminal cases be reinstated against the President, adds to the appearance of an increasingly politicized judiciary. From a legal perspective, the issue centers on one of separation of powers. In fact, Pakistan’s Chief Justice has repeatedly stated recently that “parliament is not supreme.” In questions such as these, where the Supreme Court has a vested interest in the outcome, Justice Arbour suggests that it is all the more important that court show self-restraint and frame its decisions in a way that “advances the authority of all institutions,” not only its own.

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Let’s Talk Civil-Military, NOW!

By Marvi Sirmed

Atiqa Odho needs to change her name. Not only her name but also the prefix if she wants to avoid further humiliation that she possibly could not and would not want, just because she is a woman and does not bear the right prefix before her name. Brigadier Zafar Iqbal had both — the right name and the right prefix.

The good brigadier embarked on a PIA flight from Karachi to Lahore on Saturday night, intoxicated with the ‘sherbet’. The captain of the plane handed him over to the Airport Security Force (ASF) after the brigadier publicly harassed one of the female crew members. The ASF, obviously, could not hold him for more than a few minutes when they discovered the full name of the detainee. No wonder the news item merited just a few lines in Sunday newspapers. I am still waiting for the ‘suo motu’ and media-panic that we saw in Atiqa Odho’s case. Pertinent to remind here, Ms Odho was neither drunk nor did she harass anyone on the flight.

This points to two serious maladies of this society: one, a strong gender bias that women of this country have to endure everywhere, including the courts; and two, unjust and unfair partiality that society confers on the military. It is not only about an overly powerful military but also about an extremely weak civil society. It would be naïve to believe that civil society in Pakistan is powerful enough to foil any attempt to usurp power from the civilian entities. This is mainly because the military here never departed from power. Irrespective of who occupied the buildings of the Prime Minister Secretariat and the Presidency, the military always ruled in the country through its incontrovertible influence over political decision-making and social phenomena.

The way things happen in the court, and outside of it, memo scandal is a case in point. In the memo scandal, Husain Haqqani was treated as an accused by the media and society at large because the military thought so. Everything else had to be in sync with what the military wanted or at least, was perceived to be wanting. The same ‘evidence’ (the BBM conversations claimed by Mansoor Ijaz that took place between him and Husain Haqqani) implicated the head of the ISI who was accused in the same BBM conversations to have spoken to the leaders of some Arab states and gotten their consent to sack the present government. But no one from the media, politicians (even the ones who portray themselves as most committed to civilian supremacy) and the judiciary could ever point a finger towards General Pasha, the accused. Husain Haqqani was an easy target because he was not a general. Or even a brigadier.

Later, the chief of army staff and the head of ISI submitted their affidavits in clear departure of the government’s point of view — the same government that both of them are accountable to. The prime minister was openly criticised by everyone for calling this action of the two generals as unconstitutional. So much so that the media wing of the Pakistan Army, the ISPR, attacked the prime minister — their boss — by issuing a strongly worded statement warning the government of grave consequences and serious ramifications. So there were two statements, one by the chief executive of a country castigating his subordinate generals for unconstitutional actions, and the other from the subordinate generals threatening their boss with grave consequences. Guess who had to retract the statement? You got it right, it was the boss. The Islamic Republic is unique in its construction.

What can be more worrying for a people whose representative is humiliated by an agency that should be subordinate to the people. The agency, it is more perturbing, does so with popular consent. The absence of popular outrage amounts to consent if one could decrypt public reactions. We can go on endlessly criticising hungry-for-power generals, selfish politicians, corporate media and an ambitious judiciary, but what remains a fact is Pakistani society’s utter failure — rather refusal — to grow from a Praetorian state to even a half decent egalitarian democracy.

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