Ali Dayan Hasan on the justices taking on the government.
How well or poorly has the government performed?
The democratic transition has seen many roadblocks, some of which were expected because of the relative inexperience of politicians actually being in power and for the fact that coalition politics prioritizes consensus over principle. The military also remains resistant to ceding authority to elected institutions, particularly over national security. But the government has some achievements to its credit: the restoration of parliamentary democracy, devolution of power to the provinces, an impressive body of pro-women legislation, a new social protection program for the poorest, tolerance for an often hostile judiciary and media.
Is the judiciary hostile to this government?
Human Rights Watch played a critical role in the campaign to restore illegally dismissed judges to office. But the independence of Pakistan’s judiciary should not be imperilled by controversial actions that bring the judiciary into disrepute or provide third parties an opportunity to disrupt the constitutional process. Certainly, there have been recurring allegations and appearances of judicial overreach into the legitimate constitutional domain of the legislature and the executive.
Was Prime Minister Gilani’s dismissal an overreach?
Overwhelmingly, international opinion makers have dubbed the court’s decision a “judicial coup.” At the very least the decision is controversial and at worst it smacks of political bias, even vendetta. When Aitzaz Ahsan, the highly respected leader of the lawyers’ movement, repeatedly argued that Gilani, his client, was not being given justice, that he stood convicted on charges other than those framed, it gives any independent observer cause for concern. The impression that Gilani’s disqualification was prompted by a desire to distract attention from a corruption scandal involving the Chief Justice’s son has not helped.
Have judges lived up to their promise to establish and preserve judicial independence?
We may want to read a nobility of motive in the court’s actions but there are increasing questions about the practices and priorities of the superior judiciary by unbiased observers. Despite the adoption of the National Judicial Policy in 2009, access to justice remains very poor across Pakistan. Lower courts remain rife with corruption and are abysmally incompetent. Case backlogs remain huge at all levels. Instead, it appears that the higher judiciary is perpetually engaged in a distracting standoff with the executive and the legislature and in reacting to media reports through suo moto proceedings. The use of these proceedings is so excessive that the International Commission of Jurists has raised questions over it. HRW continues to receive reports that fear of overbroad contempt laws prevents legitimate criticism and media oversight of the judiciary. The Supreme Court’s recent humiliation of the chief of the media regulatory agency, made available on YouTube, sent a chilling message to free-speech advocates. Meanwhile, the judiciary has noticeably failed to hold any high-level military officials accountable.
Is it possible to draw a line under Gilani’s dismissal?
The government was right to accept the court’s verdict. The court should now proceed with cautious restraint, demonstrably cognizant of the widespread impression that it overreached. It is imperative the judiciary act and be seen to be acting strictly within the limits of its constitutional authority. Prime ministers or presidents ought to lose office through the electoral process, not judicial diktat. Only Parliament derives its legitimacy from the popular will. It is Parliament’s role to legislate and the executive’s to govern unhindered by undue judicial interference. The judiciary can only strike down laws if they contravene the fundamental-rights provisions of the Constitution. As Pakistan continues its fragile transition to democracy, all stakeholders must understand that confrontation between elected institutions and the judiciary will harm both.
Ali Dayan Hasan is Pakistan director at Human Rights Watch.
