Superior courts around the world avoid interfering in political matters despite having jurisdiction over such issues under the ‘political question doctrine’. The purpose of this self-imposed restriction is to distinguish the role of the judiciary from those of the legislature and the executiveA study of the transformation from military dictatorship to democracy around the world would reveal that there are two possible ways. Either it is achieved through a popular revolution or by negotiations between political forces and dictators. The former invariably demolishes the entire system and mostly involves bloodshed putting a new system in place while the latter allows the change to happen within the prevailing system based upon certain negotiated terms. These terms might not necessarily meet international laws and judicial norms, as it is always a middle path. The return of democracy in Pakistan after a long period of military dictatorship is a unique example of such ‘negotiated change’. The terms reached with the help of international power brokers and guarantors ensured withdrawal of politically motivated cases, return of the exiled leadership and shedding of the uniform by Pervez Musharraf in return for re-election. After the assassination of Benazir Bhutto, the international and domestic pressure became so immense that Pervez Musharraf not only had to accept the condition of fair elections but also had to negotiate for an exit in return for protection from prosecution for his unconstitutional actions. A civilian dictator might not get such a deal.
Another option available to the political forces at that time was to overthrow dictatorship by a popular revolution. Let us not forget that the world community would not allow a nuclear-armed nation to reach the point of a bloody revolution, especially when there are more chances of falling into a civil war hijacked by religious extremists than overthrowing a dictator. Without a negotiated change, howsoever popular a movement might be, it is not possible to remove a military-backed dictator without bloodshed. We have witnessed the return of Mian Nawaz Sharif from exile, who came back in violation of a deal reached on the guarantees of our ‘friends’ in the Middle East and was sent back on the next flight. Despite the promises of a million people’s reception by right wing parties, not a dozen were able to break the security arrangements and show up at the airport to receive their leader.
Unable to fight the powerful military establishment that has far more guns and tanks at its disposal, negotiating with it was the only option available to Benazir Bhutto. The much debated and controversial National Reconciliation Ordinance (NRO) promulgated by Musharraf paved the way for the return of Benazir Bhutto and later for Mian Nawaz Sharif. The cases withdrawn against Benazir Bhutto and her husband Asif Ali Zardari under the NRO were registered during the regime of Nawaz Sharif and remained unproved during the lengthy trial and detention of Asif Ali Zardai for eleven years. Both Mian Nawaz Sharif and Saifur Rehman, the former head of the National Accountability Bureau (NAB), have repeatedly confessed that these cases were false and were created on the behest of the establishment, which wanted to malign the name of Benazir Bhutto and her family.
This fact alone leaves no space for the political leadership to avoid its responsibility of revoking these politically motivated cases through parliamentary legislation. Mr Sharif and the MQM should have taken a bolder stand in parliament. However, the political leadership is trying to avoid its responsibility just to please the establishment, thus pushing the matter of the NRO to the superior judiciary to decide. Superior courts around the world avoid interfering in political matters despite having jurisdiction over such issues under the ‘political question doctrine’. The purpose of this self-imposed restriction is to distinguish the role of the judiciary from those of the legislature and the executive. Political questions include the ratification of constitutional amendments, conduct of foreign policy and administrative actions of governments. However, there is no rigid rule and a court might choose to go ahead in case the ‘demands for a fair trial and criminal justice outweighed the political question doctrine’ as ruled by a US Federal Court in the case of President Richard Nixon.
The exception set in the Nixon case is widely referred to and abused to neutralise political rivals in dictatorships and developing democracies where the establishments use the superior judiciary as a tool to further their own agendas. The superior judiciary in Pakistan has been a victim of this power game by dictators and the political leadership at the cost of its integrity and reputation. The judiciary has lost a lot in terms of legitimacy of its decisions while playing the power game — from the death sentence of ZA Bhutto being the worst and unrecoverable stigma on its face to providing a cover to the unconstitutional takeover of Pervez Musharraf. The same superior judiciary in office today miserably failed to dispense justice to Asif Ali Zardari for years and convicted Nawaz Sharif under the establishment’s pressure. With the restoration of the Chief Justice and sacked judges through a popular movement, the judiciary has won its independence but its impartiality is still to be tested. Should the judiciary once again be dragged to deliver political decisions while the political leadership lacks the courage to take a bold stand on its publically confessed mistakes of the past?
It might not be out of context to mention that the first prime minister of Pakistan from Sindh was assassinated in Punjab and those in the establishment involved in the cover up of his murder were blessed with huge estates. ZA Bhutto, the second prime minister from the same province, was killed due to a judicial verdict. The third and fourth prime ministers Muhammad Khan Junejo and Benazir Bhutto respectively, were unconstitutionally sacked and could not get justice from the judiciary. Once again the superior judiciary is being dragged into the power game to remove President Zardari from the office for which he has been elected with an overwhelming majority from four provincial Assemblies, the National Assembly and the Senate. The plan to extract a political decision on technical grounds to remove an elected president is not going to strengthen the institution of the judiciary or democracy.
Apart from the outcome of a political circus to be staged in the superior judiciary, those advising President Zardari to face the judiciary have to realise the fact that he was in continuous imprisonment for eleven years. His detention is longer than the period of life imprisonment in Pakistan. Even if convicted in cases against him, the sentence would have been lesser than imprisonment already undergone by Mr Zardari. According to the judgments of the Supreme Court under Section 497 of the CRPC, any person who is under detention for more than two years and whose trial is not concluded would become entitled to bail. The Supreme Court did not extend the very same relief of bail to President Zardari for eleven long years. Under the criminal laws of Pakistan, if the prosecution fails to bring sufficient evidence against the accused for a reasonably long period of time, the accused has a right to request the court to drop the charges. Mr Zardari’s applications before the superior courts for that relief also failed to earn him justice. The president’s ‘advisors’ should have reservations about him getting justice this time around when most of the judges are the same ones who were unable to dispense justice to him in the past.
Even after the restoration of the judiciary, the leaders of the lawyer’s movement are raising several questions about its performance. While Mr Sharif and Altaf Hussain have advised President Zardari to face the courts, both leaders are reluctant to welcome the decision of Roedad Khan’s petition for ISI’s money politics and a judicial enquiry into the May 12 massacre respectively. There is a prescribed process for removal of an elected president in the Constitution. If the political leadership thinks that Mr Zardari is either ineligible or unfit for the job, it should resort to the constitutional remedy through an impeachment motion. Once again, dragging the judiciary into the power game would be an unpleasant and undesired burden for an institution that still has to go through the test of impartiality and establish its lost credibility. While all other institutions have deteriorated to their core during long dictatorships, the only hope left for the people is the institution of the judiciary, restored after a long and tough struggle. If the political leadership once again falls into the establishment’s trap to extract political decisions from the courts, the scars on national unity and institutional integrity might be deeper than we could afford as a nation.
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