The chief justice and democracy
The Chief Justice’s response to the grave accusations made in the media was courageous and honourable. He took the bull by the horns and through suo motu action hauled up his own son before the Court so that justice may be done without fear or favour. Having initiated the proceedings against his son, the CJP with due propriety withdrew from the bench so that justice may be served. This conduct is becoming of his exalted station and in the highest traditions of justice.
As the case unfolds, on the face of it, the matter seems simple: if the accusations made publicly by some prominent media persons are to be credible, then they would have to be substantiated by evidence. The so-called dossiers documenting Dr Arsalan’s wrongdoing and which the accusers claim are in the possession of Mr Riaz, would not only have to be produced, but would have to stand scrutiny as admissible evidence. Even if the allegations are proved, the question remains, how can a father be held responsible for the follies of an adult son? They would have to show whether, and in what way, the son influenced the judgments in Bahria cases that were or are before the Supreme Court.
Yet, legal matters are seldom so simple when they are situated in the heat and dust of political struggle. Consider the political context of the present case. The Chief Justice by earlier defying a dictator had inspired a historic citizens’ movement that restored the judiciary to a position of independence, a necessary condition for democracy. At the same time, the people demonstrated through their blood and toil that they stand ready to preserve, protect and defend the Constitution. It was what Rousseau called the ‘general will’ that was manifested with such intensity and heroic sacrifices from unknown citizens to a former prime minister: Benazir Bhutto.
Chief Justice Iftikhar Muhammad Chaudhry, having inspired a popular movement for democracy, in turn, drew strength from the popular will as he led the judiciary with a boldness, clarity and sense of justice not seen before in Pakistan’s history. Some of the most powerful elements within the state structure were held to account under the Constitution: the military and intelligence agencies on the missing persons’ case and the Mehran Bank case of graft to political parties coordinated allegedly by the military; the contempt case against the prime minister, the rental power companies case involving powerful local and foreign interests, and the Reko Diq case to recover national and Baloch rights over copper and gold deposits, which were apparently being given away for a song.
The assertion of judicial independence was inseparable from the heightened contention between various organs of the state. The contention arose from the attempt by some political forces to bring the power structure into alignment with the Constitution, in the actual practice of governance: the elected civil authority, the military, parliament, the judiciary and now parts of the media are the protagonists in this power play.
The power struggles within the state structure, as well as the activism in civil society, constitute the dynamics of democracy in Pakistan. We may be moving towards a new balance between the executive, parliament and the judiciary, a ‘trichotomy of powers’ that is envisaged in the Constitution. For this positive outcome, however, it is necessary that the judiciary should not be made the terrain of political conflict.
Let the Supreme Court maintain its hard won moral authority. Let the various organs of the state eschew conflict to save this hard won state.
Published In The Express Tribune, June 12th, 2012.
COMMENTS (19)
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@Author
A.The Chief Justice by earlier defying a dictator
Correct me if I am wrong, my understanding is that the Chief Justice became Chief Justice only under the Dictator having taken an oath of loyalty under the LFO and not under the Constitution of Pakistan. Yes, the CJP did refuse to resign, violating his oath of fealty.
B. Having initiated the proceedings against his son, the CJP with due propriety withdrew from the bench so that justice may be served.
Again, my information seems to be at variance with your assertion. It seems the idea of CJP hearing this case had to be opposed vigorously before the CJP decided to follow, what you call 'due propriety'.
The thing is there are too many wrong doings happening in Pakistan. There is only one CJ and 180 million people. How many Suo Moto can he take?? The CJ instead of changing or revolutionizing the Courts so that every one gets Insaaf on time is busy in point-scoring and increasing his public support.
I know many murder, rape, robbery, arson cases that have been in courts for decades yet the victims do not get any justice. Read the Mukhtar Mai case the judges comments were pretty shameful, just look at the number of terrorists released by the courts recently or look at the performance of lower courts. Our courts are pathetic.
If a common man who has been wronged has to create a halla in the media so he should be noticed by the supreme court which will then supposedly take Suo Moto to get justice then what's the point.
If the Chief justice really wants to do something he should try and change the courts.
The author gives the impression that CJP withdrew from the bench voluntarily. The fact is that he withdrew after repeated reminders from the Attorney General. While withdrawing he quoted from the holy Quran saying that parents cannot be punished for the actions of their children. This in my opinion was highly unnecessary.
Chief Justice is a very big name supported by Political Parties and Lawyers. Brother Judges will unquestionably be under lot of pressure when the case starts unfolding. In such circumstances, can justice prevail.
@Falcon: I accept your logic, and agree that there is likely to be some over-compensation in such a case. However, I feel (and I could be wrong - my knowledge is largely from Dawn/ ET) that this is more personality driven (and each person comes with an agenda) and hence subject to the same vagaries of justice that exist in the executive/ legislature. At the same time, I've mentioned in my comment that this is not yet one of the critical problems that Pakistan faces - the ones that you mention probably are.
the judicial activism is crippling the governance and economy. CJ is directly responsible for blocking privatisation of Steel Mill that is a burden on economy. and the suo moto action is only directed at government and playing in the hands of opposition. the selective treatment of mansoor ejaz and hussain Haqqani, victimisation of Haqqani's wife, farahnaz Ispahani.
@BlackJack: May I ask why everyone talks about institutional domains but very few in the intellectuals talks about moral legitimacy? If you have worked in any complex organization you would agree that in case of leadership vacuum, there is always a compensating mission creep, which might be damaging in the short-term but at least tries to keep the system together while the elephants are busy soothing their egos. I agree judicial activism is not healthy but wouldn't it be great if even half of the critique directed at judiciary could be diverted by our enlightened folks towards the current state of governance???
Well said. Second your thoughts.
Malik sahib housing schemes are all on forest reserve land of Pakistan
@BlackJack: The executive and parliament of Pakistan is full of frauds. They do not represent the will of the people, rather the will of the moneyed people of Pakistan.
Sir Things are simple Was CJ influenced by his son or not? This should be assesses by some one else not by brother judges. If yes he should be prosecuted and dismissed. Was he approached by son and he did not oblige then he should have submitted case against Malik Riaz in session or high court. But he admitted that he has no clue. What is left then arsalan was blackmailing Malik Riaz and extortorated 350 million rupees over three years Malik Riaz trapped a baby boy so he should be punished . As no case been decided so for against him so there is some thing fishy.
I am very happy that Malik's empire is crumbling. He should be sent to jail forever for trying to influence CJ of Pakistan.
The Chief Justice has once again earned the respect of the nation by acting judiciously, promptly, and boldly to address the issue.
It is obvious the accused have not been able to influence the Chief Justice, and the independence of the judiciary was not compromised.
However, this sordid affair raises many other questions : How was this phenomenal amount of money earned? Were any tax or money laundering laws broken? Who else illegally benefitted from Mr. Malik Riaz’s largesse? Again, were any laws broken? These are the questions that need to be addressed. And culprits brought to justice.
With regard to our system of government, let's be honest, it is anything but democracy. The best we can describe our current system is “kleptocracy” (a rule by psychopathic plunderers and looters) . It is quite obvious that no one is working in the national interest. Almost all politicians (with few exceptions) have focused their undivided attention firmly on their own self-interests, at the expense of the nation.
In any case: Democracy is supposed to be a means to an end, and not an end in itself. The end should be wellbeing of the citizens. If the system fails to deliver on that promise, rather causes widespread sufferings to the people, then it is no different than any other system of repressive and unjust governance that must be overturned.
One hopes the people will exercise their "general will" and thow out the blighters, viciously foisted on this long suffering nation.
Facts are not reflected truthfully, CJ was asked to withdraw from the bench by AG and in the court CJ refused and said "we will note your objection in our order", later under pressure CJ withdrew himself from case. CJ is CJ since 30th June, 2005. Despite public demands for opening Mehran Bank Case, he only did in 2012 under pressure again. Dr. Akaml Hussin, you loose your credibility by misstating facts. Will I read any article from you in future? Nope.
I am not sure if Suo-motu is the right answer for everything happening in Pakistan. The issue is not only intra-elite struggle for popular support but deinstitutionalization of state institutions. I have never seen apex court acting like a trial court. No day goes by when the honorable populist CJ does not issue suo-motu for every small thing happening in Pakistan. I am not questioning his integrity but someone need to tell the respected justice "Sir! you are going too far and this will jeopardize the legitimacy of the institutions and in turn of the state. Everyone knew it that Mr Bahria Town was a corrupt and crooked person, so why not to avoid any interaction with such people? Arslan Iftikhar, a doctor on the front, on the backside, on the left and right and does not have the faculty to make a judgment about someone crookedness? Looks like the whole nation (if there is one) and its power elite are adding to misery of the state. So when I say, it the nation started on the wrong foot, people get upset.
Riaz Malik is cunning person.
GreAT!
I am afraid I do not agree. The constitution defines the balance of powers between executive and judiciary, and the Chief Justice appears to be continuously transgressing those boundaries through selective suo moto action, and thus becoming an alternate power centre - you can see that opportunistic political formations are already trying to take advantage of this by proclaiming their support for him (an individual) from the rooftops. The CJP is setting a bad precedent which will come to haunt Pakistan (I agree, not one of the top 10 issues that currently plague the nation) some time in the future. Further, I could be wrong, but I find his action of pulling up his son to be theatrical in the extreme.