Restoring the rule of law

December 05, 2021

The need for a dynamic judicial system can hardly be overemphasised

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The superior courts have been under the spotlight for some weeks recently for reasons of public interest, ranging from an audio recording, ostensibly of a conversation between a former chief justice of Pakistan and another person, demolition of Nasla Tower and the country’s dismal showing on a rule of law index.

An audio recording, introduced by Fact Focus, a US-based digital media platform, insinuated that Justice Saqib Nisar (retired), the former chief justice of Pakistan, tried to ensure that the three times prime minister Nawaz Sharif and his daughter Maryam Nawaz Sharif were kept behind bars till the general elections of 2018. The former chief justice has said that the said recording is a fabrication. It has since been claimed that a forensic labortary has found the recording ‘untampered’.

In a related development, lawyer leader Ali Ahmad Kurd mentioned the matter at the Asma Jahangir Conference and had someharsh words for the superior judicary. Chief Justice of Pakistan, Justice Gulzar Ahmad, who was present on the occasion rubbished the suggestion that the courts were being dictatedor could be dictated by other state institutions. He maintained that the courts were free to conduct their business.

Asma Jahangir Conference concluded with a speech by former prime minister Nawaz Sharif. Soon afterthe the PML-leader started his speech, the internet connection snapped. The curiosity generated by this may have resulted in more people listening to the former prime minister’s speech on various social media platforms.

The government’s response to both the audio recording ‘leak’ and Sharif’s speech at Asma Jahangir Conference was largely unhelpful. The matter should perhaps have been left to the higher judiciary to sort out. Instead, severalspokespersons for the government joined the fray with a rather predictable narrative. Some, including Federal Information Minister Fawad Chaudhry, alleged that Asma Jahangir Conference was “foreign funded” and that PML-N’s Maryam Nawaz group had formed several teams to produce fake video and audio clips to bring senior government officials and judges under pressure.

No government spokesperson has, however, responded to the statement by Garrett Discovery, a US-based firm that conducted a forensic analysis of the recording, that its staff had received threatening calls. An individual reportedly pressured the firm to change the result of their forensic analysis.

It may be recalled that during a recent standoff with the Tehreek-i-Labbaik Pakistan, several government spokespersons had claimed that the TLP was funded by India. However, subsequently, some state institutions intervened and the TLP leadership was given a reprieved. TLP leader Saad Rizvi too was released on mainly the TLP terms.

Some sections of the media also contributed to the confusion. Despite the former chief justice’s denial, some TV news channels, widely seen as sympathetic to the PTI government, claimed that the recording had been pieced together with mala fide intentions. However, these channels could not run some parts of the recording.

The government’s response to the surfacing of an audio recording and proceedings of the recent Asma Jahangir Conference was largely unhelpful. The matter should have been best left to the superior judiciary to sort out.

Irrespective of whether the audio recording was genuine or otherwise, there is no gainsaying that the judicial system requires an urgent overhaul.

Considering the Rule of Law index is largely based on public perceptions, Pakistanis have made an emphatic statement about the awful state of rule of law in Pakistan (as shown by Pakistan’s 130th position on a list of 139 countries). However, it is generally not understood that the international ranking goes much beyond the functioning of the judicial system and includes the overall security situation and the quality of political institutions in a country in the development of the Rule of Law Index. So, a holistic approach must be followed to identify the causes of the pathetic quality of the rule of law in Pakistan and rectifications made accordingly.

It is time for the state institutions to bring about a change in terms of rule of law. The recent reiteration by the incumbent chief justice that the courts are working without any external pressure makes it all the more imperative to bring about the long-awaited changes. Pakistan has suffered intolerably because the rule of law was repeatedly compromised in the past.

The issue of audio leaks needs to be considered in a broader context. Ever since the 2018 general elections, misgivings about the reliability of the election process have persisted. Why, it has been asked, was there unprecedented haste in disposing of the case against Nawaz Sharif but no corresponding urgency in proceed against others whose names werelinked to the Panama Papers?

Pandora’s Papers leaks have since left Pakistanis guessing about the course of action the higher judiciary might take with regard to the individuals mentioned therein. The slow pace at which the “foreign funding” case against the PTI is proceeding has also been a caused of misgivings in the public mind. The ECP’s damning report on Daska by-polls has only reinforced the impression that the 2018 elections were not entirely free and fair. If those responsible for the abduction of election officials during Daska by-election goes unpunished, questions will continue to be raised about the quality of state institutions.

The role of the opposition in the current mess has been no less intriguing. Hardly a day passes without some opposition party member alleging massive rigging in the last general elections. However, the onus lies on the opposition to explain how Upper House has been voting and why some opposition members were missing from the joint session when 30-odd bills were passed in a hurry.

The PDM fiasco had earlier made it amply clear that there were clear divisions in the ranks of the opposition and that the various leaders were unable to rise above their narrow interests to safeguard the interests of the public. A recent quip by former federalminister Amir Liaquat Hussain about being brought to Islamabad for the joint session of the parliament may be viewed as hilarious but it may equally be seen as deeply problematic.

The need for a dynamic judicial system can hardly be overemphasised. Rule of law is the only known mechanism to force all state institutions to work within their constitutionally-mandated spheres. When one the institutions encroaches on the domain of another, intractable problems often follow. The TLP saga illustrates this point. Why did law enforcement agencies fail every time in dealing with the TLP? Why did the establishment have to intervene to troubleshoot the crisis? Why was the TLP allowed to protest under the full glare of the mainstream media during the Sharif government, and why was it blacked out from the mainstream media under the PTI regime? Why was Imran Khan the most vocal voice for the people killed in action against Qadri’s sit-in in Model Town, and why has the government shown no sense of public outrage at the death of several police officers during the reent TLP protests?

Pakistan has the potential to accommodate extreme paradoxes. The state may look the other way when some elements challenge its writ and endanger public life and property, but may come down hard on an individual for writing a witty social media post.

The writer is an assistant professor in the Department of Economics at COMSATS University Islamabad, Lahore Campus

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