This piece appeared in Daily Times on Monday January 2, 2012 as weekly column BAAGHI
The apex court’s short judgement in the memo case last Friday left many stunned and shocked. The petitioners could neither prove any violation of fundamental rights under Article 184(3), as their petition claimed, nor could they prove former ambassador Husain Haqqani’s alleged role in the memo. Nonetheless, they were given what they wanted: an inquiry commission without due process of law, and putting Mr Haqqani on notice not to leave the country without the court’s permission.
Judicial independence remains one of the most misused and mythical terms in Pakistan. Civil society’s saving the employment of a few judges taken away by a dictator could hardly translate into a much-fantasised ‘judicial independence’. When a lower middle class woman from a minority community is left to languish in jail just because a fair decision would mean a popular uproar or maybe life threats to judges, when a judge has to flee the country after sentencing the murderer of former Governor Punjab Salmaan Taseer because the fanatic religious elements thought he was a blasphemer, when hundreds of Ahmedis are killed with impunity, and the judiciary along with the state’s law-enforcing mechanism miserably fails to provide them justice or even access to justice, the independence of the judiciary seems to be a cruel joke.
The ‘freedom of judiciary’ frenzy that engulfed us in 2007 totally blinded us to the real elements of judicial independence. We started the movement and took the first milestone as a destination. The symbolism of not accepting dictation and still surviving in the office was taken as the freedom of judiciary, while it was just the first step. Little did we realise that the basic ingredients of a free judiciary, institutional independence, individual independence, separation of powers and impartiality of judges have to be watched and ensured as part of a continuous process. While we see how touchy the lordships have been on institutional and their individual independence, little attention has been paid to the most important aspects of impartiality and separation of powers.
Before the kicking in date of the freedom of the judiciary (in 2009), judicial bias was imminent when it came to the political leadership versus the security establishment. Post-2009, we thought we got a free judiciary. Unfortunately, the judiciary after this kicking in date still seems to be under the establishment’s influence. If it is the NRO or NICL case, judicial activity is exemplary. When it is the Hudaibiya Paper Mills case, Mehran Bank case or missing persons’ cases, the freedom of judiciary puts on a burqa and goes into hiding. When Asghar Khan’s petition comes up, judicial independence takes its own ‘independent’ decision to remain quiet. One laments over this judicial ‘freedom’ when one is refused even the copy of public petition no HRC 19/96 — the petition by Asghar Khan that incriminates the security establishment.
In pre-2009 days, the judiciary used to be biased against civilian governments and under the strong influence (in some cases, under control) of the security establishment. Looking at the short order on the memo case, one wonders, what exactly has changed? The judiciary still fears standing up to the imperiousness of the military establishment against the civilian dispensation. Judgements are still given looking at the names of the petitioners. How could a bench even attempt to be impartial under moral obligation of obliging the petitioners who had won the lordships their jobs just a couple of years ago? How could the bench claim individual liberty when the all powerful spy agencies who possess dark secrets of the bench and bar are a party to the case?
As an observer of most of the proceedings on the memo case, one cannot help but see the visible partiality against the defence lawyer who was grilled by relevant and irrelevant questions while leaving aside the petitioners who chose to beat about the bush most of the time, as if knowing quite well that they cannot lose the case anyway! When media noise and populist sloganeering of political parties sway the courts, how could they be free or independent? Most amusing was the frequent pronouncements by the bench of ‘sipah salaar’ instead of a constitutional term ‘Chief of Army Staff’ (COAS), as if it will change the reality of their surrender of independence to the old traditional power centre.
Among the 20 basic principles of the independence of the judiciary adopted by the Seventh UN Congress on the Prevention of Crime and the Treatment of Offenders and endorsed by the General Assembly resolutions 40/32 and 40/146 of 1985, principle number 6 reads: “The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.” Moreover, the Universal Declaration of Human Rights enshrines the principles of equality before law as well as the presumption of innocence before proven otherwise. The memo case is a classic example of not only how basic principles of the independence of the judiciary have been violated, but also, how the international guarantees of human rights have been torn apart.
The petitioners in this case were not insisting and in fact pronounced during the proceedings time and again that they are not implicating anyone, including Mr Haqqani. But the apex court went on curbing Mr Haqqani’s fundamental right of mobility by restricting his freedom of movement just because the affidavits of their ‘sipah salaar’ and spy chief included Mr Haqqani’s name. Ironically, even the spy chief does not seem to have any evidence against Mr Haqqani, as even he ‘requested’ the court to order a probe and get forensic evidence necessary to incriminate Haqqani. Some glaring blunders in how the bench approached this case and anomalies that would come out resultantly after the short (sighted) judgement, however, cannot be ignored. The only link between the memo and Mr Haqqani is an alleged phone conversation wherein Ijaz (who boasts of his links with two dozen intelligence agencies) claims the contents of the memo were dictated to him. One wonders, how will the forensics help decide whose account of the conversation is right?
It also seems deliberate by a section of the media that Asma Jahangir argued for no inquiry, implying that Mr Haqqani might be fearing an investigation. It was clearly said time and again that the government and Mr Haqqani both demand an impartial inquiry, but under the due process of law. Should we laugh or cry when even the apex court decides to make a mockery of the due process of law? Why an inquiry commission by parliament or by the government could not be made under the Commission of Inquiry Act 1956? With three high court chief justices on the inquiry, what happens if the inquiry leads to a criminal case? Will three high courts be disqualified from hearing appeals in that criminal case? If General Pasha’s demand is a forensic inquiry, why did his and General Kayani’s statement incriminate Husain Haqqani creating a pre-disposition against him without an inquiry? And why the apex court upheld these anomalies?
Where is judicial freedom, my lords?
Postscript: Human Rights Watch, an international rights organisation that pointed towards the violation of basic rights through this judgement, is being attacked by sections of the media. Hail judicial independence!