LAHORE: Foreign Policy, an eminent American magazine that is internationally renowned for publishing the widely-quoted annual Globalisation Index and the Failed State Index, has viewed in its recent June 25, 2012 edition that the United States is not the only country where judges are not exactly above the political fray, because apex courts of Pakistan, India, Israel, Egypt and Kuwait are also operating on the same principles.
In its article ‘The world’s most meddlesome Supreme Courts’, Foreign Policy magazine has stated: “On June 25, the PPP’s second choice — Raja Pervaiz Ashraf — took over as a prime minister. There’s a good chance Ashraf may also be on a collision course with the court, as he is currently facing allegations of corruption and bribe-taking from his time as water and power minister. His relationship with the court could become even tenser if he follows in his predecessor’s footsteps by refusing to investigate Zardari”.
Throwing light on what it dubs the ‘activism’ of the Pakistan Supreme Court, this prestigious 42-year-old publication currently owned by the Washington Post Company, has further asserted: “On June 19, the Supreme Court issued a ruling stating that Prime Minister Yusuf Raza Gilani had ceased to be the prime minister of Pakistan. Gilani had been held in contempt of court since refusing to prosecute President Asif Ali Zardari for corruption, as the court had directed two years ago. Gilani’s sacking is another episode in the escalating power struggle between the Supreme Court and the civilian administration. The court and the president have been butting heads since 2009, when Zardari opposed the reinstatement of Chief Justice Iftikhar Muhammad Chaudhry, who had been sacked by then President Pervez Musharraf”.
The recent Foreign Policy edition, which has also published the caption-less image of the Pakistani chief justice’s son Dr Arsalan Iftikhar, further writes: “Zardari had only allowed Chaudhry to return to power to avoid massive protests led by Zardari’s rival, former Prime Minister Nawaz Sharif. The Supreme Court and Zardari’s government have been on a collision course ever since, and Gilani’s dismissal was yet another judicial attack on Zardari. But the court didn’t stop with ousting the prime minister”.
This bimonthly glossy magazine, which had also won the 2009, 2007, and 2003 US National Magazine Awards for General Excellence, maintained: “When Zardari and PPP leaders selected former finance and health minister Makhdoom Shahabuddin to replace Gilani as prime minister, the court issued a warrant for his arrest for alleged production of an illegal drug. The arrest warrant includes the ousted prime minister’s son, too. Although critics and activists have denounced the court’s actions as a coup, spokesmen from the PPP have told their supporters to stand down for the time being”.
Interestingly, quite a few editors’ blogs have followed since the publication of this aforementioned article authored by journalist Katie Cella.
One of the June 28 editors’ blogs titled ‘Now Obama just has to worry about Pakistan’s Supreme Court’ reads: “In recent weeks, the court has dismissed Prime Minister Yusuf Raza Gilani as well as his successor Makhdoom Shahabuddin. Now the court seems to have new Prime Minister Raja Pervaiz Ashraf in its crosshairs, ordering him on Wednesday last to reopen a corruption case against Zardari, which concerns Swiss bank accounts held by him and his late wife, Benazir Bhutto, during the 1990s. Ashraf has until July 12 to respond, and many observers do not see him lasting much longer than that. There are also pending allegations against Ashraf himself for corruption and bribe-taking from his time as water and power minister.”
The blog writer, who also claims to be journalist, has observed: “It’s obviously difficult to negotiate with a government that may fall at any moment. With John Roberts (US Chief Justice) and Co out of session for a few months, the White House may now be turning its attention to Chief Justice Iftikhar Mohammed Chaudhry’s equally unpredictable deliberations”.
The blog writer has also quoted an excerpt from a Washington Post article: “The legal and political upheaval has complicated US efforts to broker a compromise with Pakistan to reopen vital Nato supply routes that pass into landlocked Afghanistan through Pakistani territory. The routes have been shut for more than seven months, creating a logistical headache not only for the Pentagon but also for other international forces, including France’s, that require access to Pakistan’s southern port to withdraw vast quantities of materiel from Afghanistan”.
Katie Cella’s article ‘The world’s most meddlesome Supreme Courts’ has also deliberated on how the 31 judges of the Indian Supreme Court routinely intervene in national politics and in the daily lives of citizens.
The article reads: “According to its own website, the court delves into matters in which interest of the public at large is involved, not only cases that pass through lower courts. This tendency has led to an explosion in public-interest litigation over the past decade. India’s judiciary came out swinging in the 1980s in an attempt to restore public faith in the court after Prime Minister Indira Gandhi’s period of emergency rule. During that time, the court was widely perceived as the prime minister’s rubber stamp. Since then, the court has injected itself into virtually every area of public policy, going so far as to ban name-calling between castes.”
Terming the Indian Supreme Court as being ‘hyper-active’, the Foreign Policy magazine has opined: “Indian court has issued rulings on everything else from job creation to urban planning to the management of zoos. Often, such rulings are directives for the government to carry out, like distribute food aid or prosecute individuals the court deems corrupt. Some of the court’s interventions have provoked public outrage, like the 2006 ruling ordering the government to demolish nearly 45,000 illegal storefronts in New Delhi that owners had bribed local politicians to overlook”.
It adds some experts — including former Indian Chief Justice JS Verma — have warned that the court’s micromanagement borders on ‘judicial tyranny’, and runs the risk of usurping authority from the other two branches of government as it seeks to create and shape policy. Other critics say court is already there, run by judges that another former chief justice criticised as ‘social engineers’.
On the Egyptian Supreme Court, the article writer has viewed: “Egypt’s Supreme Constitutional Court cemented its reputation as one of the world’s most active judiciaries on June 14 when it dissolved the country’s Islamist-controlled parliament, throwing the country’s electoral process for yet another loop. The decision followed a ruling in May that barred 10 candidates from the presidential race, including the Muslim Brotherhood’s top candidate, millionaire backroom fixer Khairat el-Shater”.
The article further reads: “The court ruled that a third of the parliament had been elected unconstitutionally, therefore delegitimising the entire body. That order follows another controversial ruling on the same day that allowed former President Hosni Mubarak’s last Prime Minister, Ahmed Shafiq, to stay in the presidential race, which critics denounced as paving the way for the old regime to retain power. Egypt’s Supreme Court bench is filled entirely with judges appointed by Mubarak, a group with an obvious interest in blocking the Muslim Brotherhood from taking power. Even though Muslim Brotherhood candidate Mohamed Morsi was announced as the winner of the election on Sunday last, it’s still not clear how much authority he will be allowed by military authorities and presidential allies on the court. Critics around the world have joined the Brotherhood in chalking up the court’s rulings to a soft military coup”.
About the Israeli Supreme Court, the Foreign Policy article writer says: “A longstanding example of judicial activism, the Israeli Supreme Court recently delivered a controversial ruling that declared 30 Jewish apartments that had been built on privately held Palestinian property in the West Bank to be illegal. The court ordered the settlements be torn down by July 1, rejecting the state’s petition to the delay the demolition. The government is also currently petitioning the court to delay the razing of another West Bank settlement outpost that has been declared illegal. These cases are yet another phase of the ongoing battle between the Likud Party and the judiciary, which has often ruled in favour of Palestinians in the occupied territories”.
The writer comments: “The Israeli Supreme Court is one of the only judiciaries in the world that allows non-citizens to petition against acts of the state and the military. For example, in 2004 the court ruled in favour of Palestinian claimants who argued that a security barrier around North Jerusalem would disrupt the ‘fabric of life’ for residents of the West Bank. Israel has had a fairly active judiciary since its founding and as the country has no formal constitution, the court can decide on the legitimacy of almost any law the Knesset drafts”.
In her analysis, writer Katie Cella views that the activism of the Israeli Supreme Court has led to numerous confrontations with the government on issues of national security and Palestinian settlements. Prominent cases included the court’s 1999 ban on torture in terrorism interrogations and its prohibition of targeted assassinations in 2008 — although leaked documents suggested that the army ignored that ruling.
Lastly, this is how the Foreign Policy magazine writer has critically scrutinised the working of Kuwait’s apex court: “While the spotlight was on the Egyptian Supreme Court’s recent disbanding of parliament to prevent Islamist control, Kuwait’s Constitutional Court did almost exactly the same thing on June 20 in the politically deadlocked Gulf state. Following a somewhat convoluted chain of events, Emir Sabah al-Ahmed al-Sabah’s hand-picked court protected his grip on power by ruling one of his earlier decrees invalid”.
She writes: “Since the emir was reinstated following the Gulf War, Kuwait has been politically liberal — by Gulf standards — and the elected parliament regularly criticises the government. But the system has become unworkable in recent years as the parliament, increasingly dominated by Islamist parties, has clashed with the cabinet picked by the emir. The emir has dissolved parliament four times since 2006 and his cabinet has resigned eight times”.