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May 16, 2017

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Time to take pride in our judiciary

Panama case

Advocate

Our national preference for cynicism and despondency aside, the basic fact is that Panama case represents a new water mark of our judiciary’s confidence to uphold the law against the high and mighty.

This should be a source of our national pride, especially when the judiciaries of the so-called advanced countries have been travelling in the opposite direction, losing ground and failing to stand up to protect the rights of weaker minorities against the rising tide of their hateful, populist governments.

If only to preempt any impression of unrealistic naivety, it needs to be acknowledged at the outset that from a logistical standpoint, our criminal and civil judicial system still stands totally broken and till a decade ago, our judiciary did carry the unenviable badge of upholding one constitutional abrogation after another and from the perspective of judicial review as well, the last decade has not been devoid of many disappointing moments.

But seen from the angle of using constitutional authority to hold the powerful to account, Panama Judgment can be seen as a new watershed in our history that brings into sharp contrast the weakness of judiciaries of other countries that are failing to stand up to the rising, populist tide of racism and intolerance in their countries.

In fact, one wonders if instead of staying enamoured by the Indian judiciary’s golden period of 1980s, an objective international historian of constitutional law today, may not be unjustified in concluding that, against all odds and expectations, it is now the judiciary of Pakistan that is staking its claim to a unique position among the judiciaries of the world.

On a global level, for human rights lawyers, the foremost disappointment in recent years has been the US Supreme Court, the acknowledged pioneer of the judicial review tradition.

The recent much hyped suspension of a minor Trump’s temporary immigration restriction aside, the fact is that since 9/11, the American courts have deliberately refused to place any broad constitutional checks or scrutiny over their government, leaving it free to openly wage a murderous campaign on a global scale, a war the likes of which the world has never seen, with bombings, kidnappings, setting up of detention and torture centres, killing of thousands of foreign civilians with drones operated from US soil and so on.

Even when US Supreme Court opened itself for the narrowest window of habeas relief sought by individual Guantanamo detainees, it first decided that such petitions were maintainable (Rasul v. Bush), but then refused to grant any relief on the ground that since use of force was authorised by Congress and ‘detention’ was a ‘fundamental incident to war’, the detentions at Guantanamo were legal (Hamdi v. Rumsfeld). Late Justice Scalia, conveniently ignoring the macro view, stuck to his smug logic that American courts could not protect aliens in foreign lands.

But in 2013, a young man Edward Snowden, with unbelievable courage and integrity, placed before the whole world, the evidence that American government was blatantly violating the constitutionally guaranteed rights of Americans themselves, illegally collecting and recording their phone conversations, texts, and web searches.

As Snowden’s exposures deprived the American courts of their pretext for not offering legal safeguards for ‘aliens in foreign lands’, everyone now expected the courts to hold US government and its key officials accountable for what many scholars called the biggest incidence of human rights violations of American citizens in US history.

However, when ACLU challenged NSA actions in New York District Court, the court decided that the government’s actions exposed by Snowden could not be subject to judicial review because al-Qaeda threat made it imperative that government be allowed to take such drastic measures. Two years later, US Court of Appeals overturned that decision but the three judges still refused to even put a stop to the continued violation, opting to wait for the Congress to take a policy decision on the matter.

So all it took was just one terrorist attack on US soil for the US courts to give up on their two centuries’ old sterling record of protecting Americans constitutional rights.

It has now been four years and let alone holding their government accountable, the US courts have yet to take any substantial step to put a complete stop to the continuing violations. And the embarrassment continues because Snowden, refusing to be intimidated, is demanding a public trial for his treason charges in an American court before a jury.

The above stands in stark contrast to the situation in Pakistan, a country that has faced tens of 9/11s with 50,000 killed, mosques and schools, courts and lawyers getting blown up to bits, where the idea of our Supreme Court ever allowing the setting up of a Guantanamo type facility for terrorists here, with no judicial oversight, is still unthinkable.

In fact, our Supreme Court’s insistence on recovery of even missing persons, many of them hardcore terrorists, is now legendary.

Out of hundreds of examples, on February 11, 2012, under a tremendous pressure of Supreme Court, military officials had to practically fly in detainees to be produced in court during court time. The court identified those persons with the help of their mothers and sisters who were present in court, directed ISI and MI to explain in writing under what law those persons had been held and directed civilian authorities to take those detainees into custody, treat them in accordance with law and file their medical reports in court.

How long will it be before a similar scene can be witnessed in the Indian Supreme Court, with Indian military chiefs having to produce hundreds of missing youth in Kashmir being tortured and having to explain the genocide that they are conducting in Kashmir?

On the other hand, if we consider British judiciary, its remarkable traditions and history aside, and the body of principles that it refers to as administrative laws notwithstanding, the bare fact is that without a modern written constitution guaranteeing fundamental rights, judicial review has no formal constitutional backing in the UK.

This weakness became apparent for all to see when the Brexit campaign, led by the hateful and racist British Nationalist Party (BNP), won the referendum requiring the prime minister to exit European Community. This placed British courts in a serious legal quandary. The UK had joined European Community on the legal basis of the law passed by British Parliament, i.e. the European Communities Act of 1972 which was still on the statute book. It was thus for the first time in history that the British High Court, out of legal compulsion, restrained the prime minister not to commence the exit process without the sanction of her own Parliament.

In the land of laws, all hell broke loose as if the British judiciary had committed a crime. No one noticed that it was not a case of judicial activism. The court was merely asking the prime minister to avoid putting them in a legal dilemma.

But BNP leaders openly abused the judges. Daily Mail published full page pictures of all five judges with the blazing headline on top of their head pictures ‘Enemies of the People’, Daily Telegraph ran a full page headline ‘Judges v The People’, and the tabloid Sun asked the judges ‘Who Do EU Think You Are?’

The personal life of each judge was dissected and they were all ridiculed and insulted. But instead of standing up to protect its respect and that of rule of law, the judiciary just kept quiet. Not a single newspaper or politician received any contempt notice.

From what happened, it seems unlikely that the British courts would contemplate passing any such orders for decades to come.

If we look at the Indian Supreme Court now, the story is even worse and depressing.

After its glorious phase of 1980s when Indian Supreme Court won international praise for its judgments in Kesavananda Bharathi Case and Indira Nehru Gandhi v. Raj Narain Case, the last 30 years of Indian superior judiciary have been most disappointing, where it is increasingly found to tacitly accept or even side with the rising monster of Hindu extremism.

When deciding Kashmiri freedom fighter Afzal Guru’s appeal, the Supreme Court, while itself admitting that “there is… no evidence of criminal conspiracy [against him],” upheld the death sentence on the ground that the entire nation was angry and that “the collective conscience of society [read mobs of Hindu thugs] will only be satisfied if capital punishment is awarded to the offender.” It was thus that the Supreme Court sent Afzal Guru to gallows, admittedly not on the basis of law or evidence, but to satisfy the anger of Hindu mobs.

Writing in the British Guardian, Arundati Roy, the clearest voice of conscience from India, delivered her own verdict on the Indian Supreme Court and Indian secular system. “The real story [of Guru] would lead us to the Kashmir valley,… where half a million Indian soldiers (one to every four civilians) and a maze of… torture chambers that would put Abu Ghraib in the shade are bringing secularism and democracy to the Kashmiri people. Since 1990, when the struggle for self-determination became militant, 68,000 people have died, 10,000 have disappeared, and at least 100,000 have been tortured.”

“What sets Guru's killing apart is that, unlike those tens of thousands who died in prison cells, his life and death were played out in the blinding light of day in which all the institutions of Indian democracy played their part in putting him to death.”

“Now he has been hanged, I hope our collective conscience has been satisfied. Or is our cup of blood still only half full?” Roy asked.

The fact is that for India’s weak and scared minorities, facing daily threats and learning to live and work at the pleasure of the violent majority, the Indian Supreme Court no longer carries any relevance anymore. And it is the opinion of those weak minorities that counts, not that of any speaker at Harvard Law School, because it the former that the honourable judges are oath-bound to protect.

As for Roy, the Indian Supreme Court would not forgive her for embarrassing them on an international level and the next time that she dared to criticise Supreme Court, the honourable judges, who could not lay a finger on the Modis and Thackerays of India, promptly sent her to prison for contempt.

In the next door Bangladesh too, mob anger is trumping law. After what has been happening there recently, any deeper analysis of Bangladeshi judiciary’s approach may not even be called for.

In 2009, the Bangladesh government announced the setting up of a tribunal to prosecute suspects for the genocide committed in the middle of a most complex civil war, 38 years earlier, with both the accused and witnesses now old and frail, lacking in memory or sight. As white haired old men were dragged to gallows, the Supreme Court, instead of blocking the whole pantomime or offering constitutional safeguards to the accused, obliged the angry crowds and the vengeful government.

In one telling instance, when the tribunal itself refused to award death sentence to Jamaat Islami leader, Abdul Kader Mullah, the Supreme Court obliged by converting his acquittal into conviction and his life sentence into death sentence. It was thus that, on December 13, 2013, when Mullah became the first person to be hanged, it was not on the orders of the tribunal but those of the Bangladesh Supreme Court.

What has happened in Bangladesh, with the blessing and collusion of its Supreme Court, is ugly, sad, divisive and it has already spawned Bangladesh’s own brand of religious terrorism.

When comparing the relative strengths and weaknesses of different judiciaries, an important fact to be borne in mind is that, as American and British politicians and government officials have been nurtured through centuries of democratic norms and self-restraint, having a weak judiciary there is not much a practical problem.

But when living in a lawless country like Pakistan, where so many mafias, politicians and men in uniform are accustomed to treating themselves above the law and getting away with it, I would rather rely on the protection of the current judiciary of Pakistan, comprising judges that are willing to go to prison than to surrender their constitutional authority and duty to hold the powerful to account in public interest.

In moments of despair and scandals, there have been times when one questioned the historical takeaways from the lawyers’ movement.

Here is the most important one. Historically, it was the unwillingness of our civilian institutions to hold our elected leaders financially accountable that always left a vacuum, pulling in one martial law after another on the pretext of holding each unaccountable elected government, accountable.

Ten years ago, as a nation, we seem to have decided to fix that problem, and the result is that today, our Supreme Court is requiring, in front of the whole nation, a sitting prime minister to explain sources of some assets made by his family almost three decades ago. Hopefully, our prime minister will stand vindicated.

In a broader context, ‘the final outcome’ in the Panama case can never be as important as ‘the judicial process’ itself. And it is this transparent, civilian, judicial process that should make us proud, for it means that we have finally been able to provide our own civilian system of checks and balances.

From uniformed dictators to elected prime ministers, within ten years, our judiciary has come a long way in upholding the rule of law.

It is thus that instead of being cynical and insulting, we must be proud of all our five honourable judges each of whom authored the Panama Judgment purely in accordance with the dictates of his conscience, and we must also commend our honourable chief justice of Pakistan for conducting himself most appropriately throughout the case.

As a nation, seeing how other judiciaries are proving themselves too weak or collusive in the face of the rising wave of hate and intolerance in their countries, we need to celebrate Panama case as another important milestone in our continuing journey towards rule of law.

And if we want this journey to ultimately succeed, we need to accept the fact that our judiciary’s path is not going to be a smooth one nor will the journey be without mistakes and it will certainly require our patience, constructive criticism and constant support along the way.

 

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