Pakistan: A Tale of Judicial Outreach

Pakistan: A Tale of Judicial Outreach

Abdul Rauf Shakoori

Pakistan emerged as an independent nation in 1947 and presently United Nations Population Division ranks Pakistan as the fifth most populous country in the world. Nearing its diamond jubilee, the country since its independence is facing economic challenges marred with inflation, poverty, unemployment, and social unrest due to vulnerable religious sentiments or otherwise. Amid lack of clarity of thoughts on strategic objectives coupled with inapt leadership, country even today struggles on various fronts and foremost appears to be terrorism. Resultantly, law-and-order situation is getting worst. 

Owing to frequent tenures of dictatorship, the place for dissenting voices is limited and shrinking by every passing day. Religious vulnerability is rising and evolved the society into an intolerant manner. The state has been unable to muster up the strength to handle these issues with an iron hand. One of the prime reasons behind this has been the unconstitutional, illegal, and unethical interference by the military in political matters which has always been legitimized by the judiciary in a vile manner. Though the democratic parliamentary system was opted by the country as its basic way forward to run the affairs of the country as envisaged in the 1973 Constitution. However, since inception, the country greatly remained under military influence. Through four military coups since 1947, the country was ruled by dictators for over three decades, and even during the so-called democratic regimes, the influence of military establishment remained significant. These interventions, on one hand, damaged Pakistan’s democratic identity and on the other hand, weakened its institutions. The most questionable role was played by the superior judiciary. They not only provided the legal umbrella to the military dictator’s unconstitutional actions but also helped them in strengthening their power base through arbitrary judgments.

The unholy nexus between military and judiciary created political turmoil and resultantly, due to ineffective institutions, and selective justice, eventually wrecked the democratic norms. In all the tenures of martial laws, the courts facilitated them for their crimes against democracy, human rights, freedom of speech. The most unfortunate historic events which are termed as a black spot on the face of the judiciary are imprisonment and execution of the Former Prime Minister. Mr. Zulfiqar Ali Bhutto on the behest of the then-dictator and Chief of Army Staff Zia ul Haq. The court facilitated Zia to dispatch his main rival.  The way the trial court and then the Supreme Court handled Mr. Bhutto’s case and issued a guilty verdict is criticized at national and international levels till now. The former U.S Attorney General Ramsey Clark called it a mock trial fought in Kangaroo courts.  Later, the same practice continued, and the civilian leaders were being punished by the courts on flimsy grounds. After the 1999 coup by the military dictator, General Pervez Musharraf. The apex court facilitated him by justifying his action of abrogating the constitution of Pakistan and even went a step ahead to strengthen his rule by allowing him to amend the constitution of Pakistan. Moreover, his main rival and popular political leader Mr. Nawaz Sharif was booked in various cases and finally awarded life imprisonment. 

After a decade of military dominance, in 2008 civilian government was formed as a result of elections and it was expected that these illegal interventions will come to an end, and the people of Pakistan will witness the new democratic era. In 2009 the U.S congress enacted the Enhancement Partnership with Pakistan Act of 2009 also known as the Kerry-Lugar Berman Act. The purpose of the bill was to extend $1.5 billion in non-military aid to Pakistan for the next five years. However, the condition imposed through this act prevents the security forces to subvert the political processes materially and substantially in Pakistan. Due to this restriction, the military showed constraint to directly involve itself in the political process or imposed martial law, however, they used the higher judiciary to achieve their goals. 

Recently in 2017, the then Prime Minister Muhammad Nawaz Sharif was ousted from his office on frivolous charges of not receiving salary from an already dissolved company allegedly owned by his son. It is widely believed that the unholy alliance between military and judiciary was behind all this. It may be noted that the role of the Nawaz Sharif government in curbing terrorism and providing political will and funding to the security forces against the Taliban is undisputed and this support finally restored peace in Pakistan after almost a decade. On the economic front, during his tenure, the country witnessed the revival of economic activities and GDP growth was recorded at 5.8%. However, after Prime Minister’s directive to the Military to act against the militants or face isolation to address Financial Action Task Force (FATF) concerns, the conflicts between the military and civilians grew and got worse. Subsequently, a junior level army officer took on to the social media platform Twitter and rejected the inquiry report of the committee formed by the government to investigate the matter which was about sharing the communication with media by the Prime Minister and his daughter. 

This delta further widened and ultimately, the prime minister was tried based on Panama Leaks. Prime Minister was asked to explain the dealings of decades-old transaction of his family-owned business which was being run by his late father. The prime minister had nothing to do with that, nor his name was listed in the Panama papers. Even though, a petition was entertained against him which was at first instance denied by the Supreme Court of Pakistan lacking jurisdiction. However, the same petition later was got accepted by the same court. The apex court invoked the jurisdiction of Article 184 (3) of the constitution of Pakistan by depriving the right of appeal to the Prime Minister. By invoking Article 184(3) of the constitution of Pakistan, technically Supreme Court of Pakistan itself became the petitioner, investigator, and judge thus depriving the accused of his basic rights of fair trial and appeal. 

The supreme court was supposed to determine the ownership status of the Prime Minister with properties owned by his family. To determine this the Supreme Court of Pakistan formed a Joint Investigation Team consisting of the political opponents of the Prime Minster family. Moreover, as reported in the media, Judges used WhatsApp calls to select the members of their choice as investigation teams. After supreme court proceedings, no solid evidence was available to convict the Prime Minister. However, the courts used the matter which was not a part of the petition and misinterpreted the definition of assets despite knowing that language of a statute is authoritative in the matter before the court over any other means. The senior judges in the first judgment referred to a novel instead of law to tarnish the repute of the Prime Minister and in the final judgment, Supreme Court Bench ignored the prevailing law and even universal accounting principle. The court relied on the dictionary meanings and termed “salary receivable” from an already dissolved company as an asset. 

Despite clearly mentioned in the Income Tax ordinance, 2001 that individuals are not obliged to accrual basis of accounting.  So, any amount which had already been written off and where the payer no longer exists cannot be termed as an asset, both in legal and accounting terms. Furthermore, when a statement of assets and liabilities is filed by the elected representative, it was required to be filed on a cash basis, not on the accrual basis of accounting negating the concept of receivables and payables. Moreover, the Joint Investigation Teams’ investigation violated the powers conferred under section 21(g) of the National Accountability Ordinance, 1999 in obtaining the documents against the Prime Minster and his family. None of the documents presented in the court met the mandatory requirements in the law of evidence prevailing in Pakistan.

Whereas, in other similar cases, the court did not implement the precedent set in Mr. Nawaz Sharif’s case. Even the court facilitated his main political rival and current Prime Minister of Pakistan Imran Khan, and incumbent Interior Minister in a matter involving almost similar point of law. In the Imran Khan’s case, the Supreme Court entertained him despite backtracking from his initial declaration multiple times regarding his offshore company which was not declared by him, its legal fees, and income earned through playing county cricket. Even the court did not order investigation for presenting a dubious letter from his friend which not only contradicted his previous submissions showing remittances detail but also contradicted his previously submitted income tax returns. Apart from the politicians, even the judges who are perceived to be a threat to the powerhouse have faced the wrath of their brother judges. Justice Shaukat Aziz Siddique and Justice Faiz Isa are real-time examples. The supreme court judges didn’t feel any embarrassment while dragging Mr. Faiz Isa’s wife in a frivolous case and then ordered an inquiry by the Federal Board of Revenue. Mr. Faiz Isa and his wife were ridiculed and are subject to constant threats and defamation campaigns, however other judges sitting in courts have turned a blind eye. 

The courts have always failed to stand against the pressure of mil-establishment and in the last 75 years, no military dictator or general has been convicted for the crimes against humanity and abrogation of the constitution. However, the courts have disqualified, jailed, and executed politicians over dubious claims, doctored investigation but when it comes to powerful military all their might fizzle out. This selective justice system is leading to an anarchy in the country and people have started idealizing the most disturbing trend of justice system followed in Afghanistan. Even some TV analysts preach similar type of the system in Pakistan where alleged accused are being punished without awarding them a right of fair trial. Pakistan being a fifth largest country cannot afford the selective justice system. This pick and choose policy already cost us a lot. It is a right time for our apex court honorable judges to revisit their performance, conduct, and the quality of justice being delivered. If this divide continues Pakistan will pay a huge price. The same is witnessed by continuous decline in the FDI influx, as any potential investor whilst conducting legal due diligence, if considers the supreme court judgement in disqualifying a sitting prime minister, is forced to rollback investment plan. Such far reaching precedents will do nothing except pushing back the Pakistan’s market and presence in the international canvass. Hence, there appears a dire need for structural and fundamental reforms starting from a fair legal system with basic canon of equity and fair-play, otherwise we will continue to witness what was never conceived or ought to happen.

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The writer is LL.M from Washington University in St. Louis. He recently co-authored a book, Pakistan Tackling FATF: Challenges and Solutions with Huzaima Bukhari & Dr. Ikramul Haq.

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