A three-member bench of the Supreme Court of Pakistan has declared two leading politicians of the country, Mr. Nawaz Sharif and Mr. Shahbaz Sharif, as ineligible to hold parliamentary positions. Mr. Nawaz is the former Prime Minister and the leader of the second largest political party, the PML-N, and Mr. Shahbaz is the Chief Minister of Punjab province, the largest province in the country.
The decision was rendered on February 25, by a bench consisting of Justice Muhammad Moosa K Leghari, Justice Syed Sakhi Hussain Bukhari and Justice Sheikh Hakim Ali. By a two sentence, non-reasoned order, the Supreme Court of Pakistan, has done, what it is has proven to be best at — sabotaging democratic space in Pakistan. The decision has far-reaching effects upon the slowly expanding democratic space in the country. By the decision, the Court has once again proven that its allegiance is not to the people of the country, but pledged to those in power.
The issue upon which the Court made its decision is rooted upon the orders and whims of a former dictator, who shredded the Constitution of the country to suit his follies. With the decision, the Court reduced itself to become a ghost of General Pervez Musharraf. The history of Pakistan stands proof to the grim reality that the judiciary of the country always aligned with the forces of dark against a civilian rule and prevented civilian institutions to develop.
An exception to this general character was a decision by the then Chief Justice, Mr. Iftekhar Choudhry, who, on November 3, 2007 ruled that the state of emergency imposed by the military general as unconstitutional and illegal. Not surprisingly, Justice Choudhry was terminated from his office along with his colleagues who believed in the constitutional supremacy of the judiciary. The February 25 order of the Supreme Court rhymes with the Presidential Ordinance issued by Musharraf dismissing the Chief Justice.
The recent history of Pakistan stands proof to the fact that the role played by the legal fraternity has the power to change the future of a country. Like any other dictator, one of Musharraf’s primary interests was to gerrymander and subjugate the judiciary in the country. He succeeded in this task largely, and those who resisted had to resign or were terminated.
Musharraf and other previous dictators succeeded in destroying Pakistan because the judiciary in the country not only failed to pose any resistance to whims of these tyrants, but also aligned with them, playing heed to the usurpers of power. Yet, it was the lawyers’ movement, that removed the dictator from his office, and paved way for a democratic space in the country. The February 25 order of the Supreme Court will definitely have a demoralising effect upon this new life that was brought into the country.
The judiciary of a country has a social engineering role. A judiciary that discharges its constitutional duty with great care, thought and vision supports constitutionalism and development. Whereas, a judiciary that uses its constitutional supremacy over the executive, to subjugate itself to those in power, equates itself to the role of a hangman who terminates life. By playing the shadow of Musharraf, the Supreme Court has added one more reason for the continuing internal instability in the country.
Pakistan, like some of its neighbors, is going through a turbulent period in its history. The internal disturbance and the climate of instability sponsored by religious fundamentalist forces require weak institutions. The judiciary must be an institution that can withstand the push and pull of changing power equations and that could maintain an independent position within the constitutional framework. Instead, the Supreme Court of Pakistan has once again proved that it is eager to carve out an unwarranted space of its own, to promote and to align with the usurpers of power.
The Supreme Court must have borne in mind that their action has far-reaching consequences, with the potential to affect the future of the country and its succeeding generations. Nepotism, corruption and lack of foresight and good conscience are some of the characters associated to Jirgas in the country. By wisdom and judgment, the judiciary must now prove that it is different.
The Asian Human Rights Commission (AHRC) believes that the February 25 judgment is a reflection of the continuing predicament of the country’s justice institutions, particularly that of the judiciary. The continuation of the status quo will only increase the instability the country is struggling hard to overcome.
It is the responsibility of the Government of Pakistan and that of the Supreme Court to regain the trust of the people. This requires determination and political will, reflected through affirmative action. For the government, taking steps to restitute the deposed Chief Justice, Mr. Choudhry, and restoring the judiciary to the position prior to November 2, 2007 could be such an act. As for the judiciary, it must consider a review petition, if filed by the government against the order made on February 25, so that the judiciary as an institution can prove to the people of the country that it is no more a puppet of the administration.
