Wednesday, December 23, 2009

'Behaving Like Judges'

This news item , titled "Kurd Unhappy Over SC Verdict on NRO" caught my eye from today's Dawn. It begins:

"Ali Ahmed Kurd, the firebrand leader of the lawyers’ movement and former president of the Supreme Court Bar Association, who has been keeping quiet for quite some time, surprised a lot of people on Tuesday with his blunt criticism of the way the Supreme Court was behaving. Judges should “behave like judges”, he said."

The Unhappy Kurd

We've recently also had Ms. Asma Jahangir also criticising the National Reconciliation Ordinance (NRO) judgement in both a Dawn op-ed piece and on a talk show on Dunya TV (the written piece being much more well reasoned - though flawed - than her verbal arguments on tv), claiming that the Supreme Court had overstepped its mandate. Her basic argument was that the decision seemed like a "witch-hunt" and if the NRO was going to be declared illegal for being against the constituion, what was the point of referring it to the parliament to enact as a law if it could, that by doing so the court had tried to mock the parliament. That of course assumes that the Supreme Court had made up its mind before hearing the case that it would strike down the law. Her arguments that the court had overstepped its mandate by ensuring a monitoring process are actually also quite legally flawed since the court has long exercised the power to monitor the process of justice, not least in the case of accountability and anti-terrorism courts which also operate under the same principle. In the above news report, Ms. Jahangir is quoted as telling a seminar in Islamabad that the Supreme Court decision "appeared to be a decision pronounced by a 'jirga'."

The same report goes on to report say:

"Mr Kurd said that an independent judiciary had been restored after a great struggle, adding that the country would become stronger if the judiciary acted in the manner expected by the nation during the struggle. “If it does not happen, it will cause a blow to national security.” "

Call me a cynic but isn't telling judges that 'they should behave like judges' and that they are 'over-stepping their mandate' and 'endangering national security' EXACTLY what General Musharraf had been doing and against which both these legal activists had raised their firebrand voices?

It would seem that everyone, including the activists of an independent judiciary, are actually only interested in getting judgements that suit their interpretation of the law. Anything else and they get sulky.


SAP Arbeiter said...

You can criticize the attitudes of these people but there is a difference b/w Musharraf and them. They are not in power and did not put a gun to the Supremo's head to have the court act the way they want. There is a need to acknowledge that.


Anonymous said...

Just because there is a similarity in the arguments they are making does not make them birds of a feather. Musharraf was also saying that we need to fight terrorism... does that mean all people who make this case are birds of a feather with Musharraf??

sana said...

you're not being cynical, you're making an inaccurate accusation (albeit a subtle one) by ignoring two very important points:

asma jehangir and kurd quite clearly have very different reasons than musharraf had for telling the judges that the shouldn't over-step their mandate than.

also, the judges "over-stepping their mandate" means two different things when said by musharraf and jehangir/kurd.

Bolshevik said...

"The same report goes on to report:"

Why! :-(

XYZ said...

@SAP Arbeiter: I agree. Acknowledged.

@Anon343: No, it does not make them birds of a feather. But I do think it's important nevertheless to look at the end results of people's arguments, not just their ideology or their affiliations. In the same way, some of the loony left in Pakistan sounds exactly like Zaid Hamid and Imran Khan in their prescriptions, though they ostensibly come from a very different positions.

@Sana: Would have to disagree with you. Asma Jahangir and Kurd having "very different reasons" is 1) not entirely true, since in both (Musharraf's and their) cases the concern is for the stability of the 'system' - one may disagree with or question the legitimacy of a particular 'system' - but the motivating factor is the same; and 2) extrapolating their intentions is as wishy washy as talking about the nee'at of someone. What matters is the end result of their statement.

Secondly, I fail to see how "over-stepping their mandate" means something entirely different in the case of Musharraf and Jahangir / Kurd. Even during Musharraf's tenure - before he actually went ahead and took drastic action against Iftikhar Chaudhry - there were many people who felt the Supreme Court was over-stepping into the realm of the executive and thus making administration difficult. However, our populist legal activists were all holding this up as superb judicial activism at the time. I should clarify that I am not arguing that the Supreme Court never over-steps its mandate (I actually believe that in both times, certain court decisions DID go beyond the job of interpretation of the law, recently for example also in the case of fixing sugar and attempting to regulate oil prices). All I am arguing is that the internal logic should be consistent. You cannot condone the courts for interfering in administrative matters during Musharraf's time just because you didn't like him or felt the ends justify the means, and then whine about it when the courts do it in a civilian set-up.

@Bolshevik: Ha! Sorry, was dashing to complete the post. Have corrected it.

MrLongWar said...

@ XYZ:

Pakistan has a loony left? After all these years of anti-communism?

Where in Cyber-Pakistan do these brave souls exist?

Anonymous said...

XYZ: How can the "end result" of Musharraf telling the judges to "behave like judges" possibly be the same as the end result of Asma Jehangir and Ali Ahmed Kurd saying the same thing? We all know what the end result was in Musharraf's case: two attempts to force the CJ from the bench, the first was ruled illegal by the SJC, and the second made history in its own way. I don't think Jehangir or Kurd telling the judges to "behave like judges" can POSSIBLY lead us to the same result!

Rabia said...

"since in both (Musharraf's and their) cases the concern is for the stability of the 'system'"

that's an incorrect understanding of Jahangir's argument. The Asma Jehangir article clearly says:
"While, the NRO can never be defended even on the plea of keeping the system intact"

In fact in the first article cited by you this is what Asma Jehangir says:
"She was of the opinion that the NRO could have been declared null and void by merely declaring it as repugnant to Article 25 of the Constitution, but a Pandora’s box had been opened by the court."

She elaborates on this point in her own article by discussing her objections to the use of the ziaist article 62(f). IA Rehman's main objections to the judgement are also based on the use of article 62 & 63.

Rabia said...

I think it's also really wrong to equate Kurd's call for more judicial restraint to Musharraf's illegal actions against the judiciary. There is simply no comparison unless you are working on the assumption that Kurd's objections to the NRO judgment are purely in the interests of a particular political outcome.

gugu said...

The proceedings in the NRO case were marred by perceived bias in so far as the judges singled out the PPP leadership in alleged cases of corruption. The court went beyond the scope of the case in so doing, but even that might not have been perceived as titled against one segment of beneficiaries of NRO, had the court dealt other kinds of alleged crimes involving e.g. MQM evenhandedly. Then the court chose to press into service articles 62 (f), 227 making many an independent lawyers and analysts see the order with suspicion. 62(f) Article 62(f) is particularly sticky in as much as it requires the members of parliament to be "sagacious, righteous and non-profligate, and honest and ameen", qualifications which no court of law can ever judicially determine. It raised eyebrows because it seemed that the court might be thinking of going to the extent of making some remarks in the detailed order as to the standards on the basis of which sagacity, righteousness and non-profligacy, and honesty and amanat, concepts that are judicially indeterminable i.e. no enquiry can enable a court of law to render an objective standard. Pressing article 227 into service has not helped either especially in view of the Supreme Court’s past consistent stand that no law can be declared unconstitutional on the touchstone of the Objectives Resolution and article 227 (prescribes that no law shall be enacted which is repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah).

Asad Jamal

gugu said...

The most intriguing aspect of the short order is, it seems to me, is the pressing into service doctrine of basic structure when it was wholly unnecessary and farfetched. The NRO was simply a discriminatory law and the only thing the judges needed to do was to rely on articles 4, 8, 25 and perhaps the argument of legislative judgment that NRO was tantamount to interference in judicial sphere as it proposed to dispose cases pending before courts without their permission. It should not have taken more than three or four days' hearing. ut the court chose to drag on the case and made it look biased, though intention may not have been so.
Para 14 of the order reads:
"14. In depth examination of the NRO suggests that it has not been promulgated to provide reconciliation on national basis as this nation has seen reconciliation in 1973, when a Constituent Assembly gave the Constitution of 1973 to the nation, guaranteeing their fundamental rights, on the basis of equality and brotherhood, as a result whereof, .....
It goes on to say:

However, salient features of the Constitution i.e. Independence of Judiciary, Federalism, Parliamentary form of Government blended with Islamic provisions, now have become integral part of the Constitution and no change in the basic features of the Constitution, is possible through amendment as it would be against the national reconciliation, evident in the promulgation of the Constitution of 1973, by a Legislative Assembly. Therefore, promulgation of the NRO seems to be against the national interest and its preamble is contrary to the substance embodied therein. Thus, it violates various provisions of the Constitution..."
The Indian Supreme Court first acknowledged this principle in Kesavanada Bharati case [AIR 1973 SC 1461]. In Pakistan, the courts have been uncertain and reluctant as to adopt the doctrine. The SC in Mehmood Khan Achakzai’s case [P L D 1997 Supreme Court 426] did not clearly adopt the doctrine when it dismissed the challenge to the Eighth Amendment in a somewhat questionable manner. The argument was also pressed in the Zafar Ali Shah case, however, without practical success.
In Kesavananda Bharati case, which the short order indirectly relies upon [when it cites Indira Gandhi case], there were thirteen judges who came up with as many views on the basic structure of Indian constitution. There was no unanimity. One hopes to see a more reasoned judgment by the 17-member bench that will treat the subject as it deserves to. Bringing the basic structure doctrine under discussion was unnecessary and adopting it in such certain terms can have seriously adverse consequences for an already garbled constitution. This doctrine is a controversial one and better not be adopted in Pakistan.
What exactly is the SC up to when its seventeen judges reaffirm the doctrine of basic features/structure of the constitution in such terms as they have and with such unanimity? And how come they overstretch the argument to declare the NRO against national interest? It could be unconstitutional in as much as it creates false and discriminatory temporal distinction and proposes a mechanism which smacks of interference in judicial sphere, but what prompted the judges to declare it against the national interest? Was it really so? Is this really the realm judges need to assume?
Experience teaches us and it's been recognised in the internationally established principles that if a majority of judges is under the influence of certain judges or a senior judge (who controls them in any manner whatsoever, legally sanctioned or otherwise), then the judiciary cannot be said to independent. Is it that some of the judges are influencing others in decision making? One only hopes, that is not the case, but evidence will have to come from the seventeen judges of the apex court."

Asad Jamal

XYZ said...

So, I had actually spent a lot of time a couple of days ago responding in detail to some of the comments but then committed the cardinal sin of not making a back-up of my typing and saw to my horror that when I posted the comments they just disappeared into thin cyberian air. I was too dispirited to type them out again immediately but I will make an attempt once again, though they may now be a bit rough around the edges, which I hope you will excuse... In any case, here goes:

@MrLongWar: Are you being serious? They are all over the place, the ones I like to refer to as "Facebook Revolutionaries"... you know, the ones who think they are in the vanguard of some movement when they post status updates. To be oblivious of them you would either have to be not clued in to the cyber scene OR actually be a part of them in which case you would think there is nothing surreal about them.

However, I should clarify, in case you were simply offended by my usage of the term 'loony left', that I am not referring to the entire left, only a small fringe element within it.

@Anon743: Please re-read my earlier comment. The "end result" I am referring to has nothing to do with their (Musharraf's / Kurd-Jahangir's) actions or their respective powers to enforce their point of view, only to their logic and their mindset.

@Rabia: I have a huge amount of respect for I.A. Rehman's (and Asma Jahangir's) rationale for pointing out the consequences of referring to the Ziaist articles (though in my opinion the reference was only tangential and cursory at least in the short order and legally -i.e. not talking politically here - perfectly valid as long as the clauses remain in the Constitution.)

However, Asma Jahangir's point that the Supreme Court should have limited it's order to "merely" striking down the NRO is 1)presumptious and prescriptive and 2) does not take into account that this would have led to further confusion about the meaning of its consequences and in all likelihood further litigation asking the Court to clarify its position. The Court, by dealing with the possible questions likely to arise because of its judgement (some of which were already being debated), was merely attempting to preempt them, which is well within their right.

Secondly, in the Dunya TV talk show, Asma Jahangir never referred to what you claim as her central point - the reference to the Ziaist articles of the Constitution - and instead focused inordinately on the monitoring aspect of the judgement.

With respect to Kurd: first of all, I NEVER equated Kurd's call for "judicial restraint" to Musharraf's actions. There is a nuance here you either are not getting or deliberately ignoring. As I said earlier, I was only pointing out the similarities in the mindset that would like to see judges behave as one wants them to, whatever the political motivations behind it be.

But yes, I do believe Kurd's call is motivated by a desire for a particular political outcome. That is Kurd's political right and I have no problem with that as long as it is not garbed in the guise of neutrality and the desire to see judicial propriety. He was at the forefront of those defending judicial activism when Musharraf and his minions were telling judges how they should behave.

Ok, enough for now, Asad Jamal's comments will require a separate commentary.

E said...

Ever wonder what and how to tell the administration if it can't do its job right.

Stability of this system?? If you need an NRO to save it from crumbling, you better let it break down, dude.

Of SC orders on sugar prices: when Governments fail to deliver, Justice takes up arms. There is nothing new.

Asma was never the initiator/ pioneer of lawyers struggle. It was Munir Malik's brainchild since day one. I remember, when the wagon hit the road, she merely jumped on it. So do all shrewd activists! Kurd is honest, but his speeches during the movement turned out funny firecrackers, no?