Our Free and Independent Judiciary!

By YLH

The Supreme Court has proved yet again that it is independent and free…  independent of any check by law and free of all rational sense.

It is now becoming increasingly clear that the the Superior Courts have every intention to allow every terrorist and his mother in law loose on the streets.  By dismissing the appeals of Punjab and Federal Governments against release from house arrest of Hafiz Saeed,  our honorable Supreme Court told the government,  “Arrest him when you have proof”.  What would constitute proof one wonders?  Indian Government has submitted five dossiers.  Is there nothing in them that atleast qualifies as actionable evidence?    It seems though that the Supreme Court is now unconcerned with the fate of this country.

Pakistan’s institutions are in perpetual warfare now.    The federal government is increasingly on the backfoot by a judiciary that only wants to try cases against the government.  In blatant disregard of its own established law by precedent,   the Judiciary has already taken up the petitions against the 18th Amendment.  The truth is that any constitutional amendment cannot be challenged in court as per the established law.  This is a principle that has been faithfully adhered to by the Supreme Court for 30+ years and the judgment in field is Pakistan Lawyers’ Forum case,  where  a bench consisting of our none other than our great champion of justice, the Honorable Chief Justice of Pakistan today,  was a judge passed down the law that a constitutional amendment cannot be struck down.   Of course the constitutional amendment in question was the 17th Amendment.  In other words,  our free judiciary will not extend the same courtesy to a democratic government that it extended to a military dictator.

The Supreme Court through NRO judgement has hinted at doing away with the concept of presidential immunity by using 2-A of the constitution (read the arguments presented by Court’s favourite lawyers and its insistence on writing a letter against the President).  This again will be an utter violation of an earlier judgment of the same Supreme Court which held that every article of the constitution had equal power and that only subordinate legislation may be affected by a constitutional provision.  After all how do you reconcile the equality before law as promised the constitution with the bar on president and prime minister being only Muslims?

However there is one thing that the Supreme Court hasn’t considered.   It was restored through the executive order of the current Prime Minister and not through any constitutional amendment.  Push comes to shove,   the federal government may well be forced to withdraw the executive order.    Now that would put our heroic judges in quite the pickle won’t it?  Would they support a military coup then?   Well given the history of judicial sommersaults we can expect anything. Let’s hope this time history will not repeat itself..

9 Comments

Filed under Judiciary, Pakistan

9 responses to “Our Free and Independent Judiciary!

  1. DA

    It would surely be very dangerous, if the supreme court, as per the wishes of the writer, would work on the assumption that dossiers provided by a hostile foreign government will (undoubtedly) contain proof that would constitute someone a “terrorist” and justify the containment of his liberty?

    Let us be in no self-delusion that anyone who the ISI in a country like Pakistan does not like can be called a “terrorist” and made to disappear overnight, hence the onus of proving someone’s guilt should be at the highest level possible – so good work, supreme court.

  2. I feel a bit sorry for our urban liberal civil-society now. After all they worked so hard to get these people reinstated. All they got in return was Millat Facebook and a clean chit for Hafiz Saeed.

    Who should they turn to for a fresh dose of rationality and discipline? The PML-N? those closeted talibans. The PPP? Feudals and illiterates, the entire lot.

    A bit starved for choice, don’t you think…oh there is that one other chain-smoking option.

  3. Bciv

    @umair

    mentioning ‘that chain-smoking option’ was mostly redundant. it is not unrepresented. you had already accounted for it in at least one of the three ‘choices’ you listed.

  4. Vijay Goel

    Your judiciary it seems has started to take itself rather too seriously.It seems it wants to be a third centre of Power after the legislature and the Army.As if two were not enough.A very timely article by YLH.The judiciary should not be seen to be baying for the blood of the Govt.

  5. yasserlatifhamdani

    No. The option is quite clear. Putting one’s faith in the continuity of the constitutional democratic system.

  6. @Vijay Goel

    Again, distortions, this time due to an artificial vacuum.

    I draw your attention to the repeated clashes in India between the judiciary and the legislature.

    Two instances which come to mind immediately are the confrontation between Paul Hector Pandian (what an evocative name!) and the Madras High Court, and later, Somnath Chatterji’s confrontation with the Supreme Court. Detailing these is pointless; the point is that the legislature and its equivalent judiciary in each case clashed over jurisdiction. Because they were strong institutions, boundaries were carefully demarcated, methods of working together were evolved, and the crises (more than one in the case of Pandian) averted.

    If the Pakistani legislature had not been weakened by years of contemptuous setting aside, we might have seen less aggression by the judiciary.

    So also if the Pakistani judiciary had not been used to doing bizarre things and being supported in clashes with the military, there might be more dialogue and better understandin of each other’s positions. One example is the offer of one eminent judge to Ayub Khan to put a proposed constitutional structure to the voiced opinion of the gathering at a planned public meeting, and taking that as endorsement.

    On the other hand, when the judges think of political aspects, they don’t see the legislature, they see politicians, the kinds who assaulted courts in the past, surrounded them and demanded favourable judgements under pressure, interfered with the workings and generally took every recourse to exert undue influence on the courts but the formal and permitted one. They can’t be blamed for treating political issues and points of view less than respectfully, now that they have the upper hand.

    As it is, the citizens of Pakistan will have to wait for this latest democratic attempt to work for some time and accrue some strength. Only then will the legislature have enough confidence to ‘see off’ the judiciary. Only when that happens will there be an honest attempt by both sides to seek a new balance.

  7. znt.griz

    If you look at some of the leading Lawyers and members of the bar council, all you will see will be the right wing mentality. These lawyers and judges need to be put in their place. The media also needs to show some responsibilty. To begin with – Cancel Hamid Mir’s Capital Talk.

  8. Natasha

    I would love to know what is the content of the dossiers that the judiciary didn’t think was good enough to put Syed behind bars. I hope Yasir read them before he decided to give his expert opinion on the decision.

  9. Bciv

    @Natasha

    the case was not about putting saeed behind bars since it was not about establishing guilt. it was simply about whether he should remain under curfew, while possible links to an extremely serious crime were being investigated. a strong argument exists that there is enough prima facie evidence for the curfew to remain, without a need to refer to any dossiers.