Pakistan's judiciary bites
back By Syed Fazl-e-Haider
KARACHI - Pakistan's highest court reacted
firmly to claims by the country's anti-corruption
chief that it overstepped its judicial powers by
putting pressure on officials investigating
allegations that last week prompted the court to
order the arrest of Prime Minister Raja Pervez
Ashraf.
The Supreme Court on Wednesday
declared that it would not allow anyone to
interfere in proceedings, just as it did not allow
a military dictator to do so in the past. Chief
Justice Iftikhar Muhammad Chaudhry directed
authorities to submit to it a verified copy of a
letter from the head of the National
Accountability Bureau (NAB), admiral (retired)
Fasih Bokhari, to President Asif Ali Zardari.
Chaudhry said the letter amounted to "criticizing
and pressurizing" the court.
"We want to
determine whether the letter was written in an effort
to pressurize the court or
to spread hatred against the judiciary," the chief
justice said, while hearing a case concerning the
"rental power projects" (RPP) scandal, in which
Ashraf is one of the accused. "We are very serious
about this and will not allow the judiciary to be
maligned by anyone. We did not allow a military
dictator to interfere in the court's proceedings.
How we can allow the NAB chairman to do so?" Dawn
newspaper reported Chaudhry as saying.
The
Supreme Court has already removed two NAB chairmen
and two prosecutors general through its judgments
in the past three years. Political observers say
Bokhari, who was appointed to the role of
anti-graft chief by Zardari in 2011, has taken the
first step in stirring controversy over the role
of the judiciary with an aim to saving the skin of
powerful people.
His letter to the
president is seen as a move toward filing a
reference against Chief Justice Chaudhry at a time
when the court is hearing a number of high-profile
cases including that of the RPP, a US$5 billion
scandal linked to the award of special power
projects to alleviate Pakistan's electricity
shortages.
Former president General Pervez
Musharraf in March 2007 virtually suspended Chief
Justice Chaudhry, sending a reference under
Article 209 of the Constitution to the Supreme
Judicial Council to investigate allegations of
misconduct. It was widely believed that
Musharraf's decision to file a reference against
Chaudhry was the direct result of an "open letter"
that leveled serious claims against him. The
letter was signed by a Naeem Bokhari, a lawyer of
the Supreme Court, but observers believe Fasih
Bokhari was behind it.
Dawn newspaper
commented:
Is President Zardari somehow
supposed to come to the rescue of the allegedly
besieged Mr Bokhari and NAB? In writing to the
president, was Mr Bokhari evoking shades of
Naeem Bokhari's open letter to Gen Musharraf
that led to the dismissal of Chief Justice
Iftikhar Chaudhry in 2007? That these questions
need be asked at all in this moment of growing
controversy and crisis is itself a testament to
the unnecessary and regrettable politicization
the NAB chairman has stirred up.
The
NAB chief turned against the Supreme Court when
earlier this month it ordered the arrest of
Asharaf and criticized Bokhari for incompetence
over the RPP investigation. Then the court took
notice of the mysterious death of NAB investigator
Kamran Faisal, which has brought work on the
investigation to a virtual standstill.
The
NAB has raised an objection to the Supreme Court's
suo motu (of its own accord) proceedings in
the death of Faisal. NAB Prosecutor General K K
Agha along with Bokhari appeared before the court
on Monday, expressing their lack of confidence in
the court. While an NAB investigation into
Faisal's death has concluded that it was suicide
as a result of depression, Faisal's family has
rejected the report and insists that he was
murdered, claiming there were bruises on his body
inconsistent with death by hanging.
The
News in its editorial on the Bokhari letter, said:
The letter is aimed at saving the
prime minister who is in danger of going the way
of his predecessor, although not for a failure
to write the Swiss letter. He is accused of
old-fashioned and very traditional corruption in
the Rental Power Plant (RPP) case. Not only is
the chairman of NAB feeling the judicial heat,
there is mutiny in his own ranks as well because
of the mysterious death - allegedly by hanging -
of NAB investigator Kamran Faisal.
It
will be recalled that Kamran Faisal conducted
the investigation into the RPP case, the upshot
of which was that the SC [Supreme Court] ordered
the arrest of the prime minister. Kamran Faisal
had been under pressure from, among others, his
own chairman to make changes to the report to
the favor of the PM.
More important is
the fact that NAB's open refusal to obey the
SC's orders has created a legal and
constitutional void as action on all cases and
orders of the SC is now practically stopped,
including the arrest of the PM and many others
in the RPPs case. If the NAB chairman resigns,
the government will get many more days of
well-calculated and smartly calibrated relief as
the system faces another
setback.
Bokhari mentioned in his
letter that he had resigned his commission as
Chief of Naval Staff just prior to a military coup
(led by Musharraf in October 1999) rather than
violate his oath to the constitution. He also said
that he was a part of the Pakistan Ex-Servicemen
Association contingent that took to the streets to
protest against the November 3, 2007, emergency
imposed by president Musharraf.
Bokhari's
allegations against the Supreme Court has also
triggered a new debate about the role of
judiciary. Daily Times commented:
The sum total of the NAB Chairman's
charges against the SC revolve around
overstepping its juridical powers as the supreme
appellate court, interfering in and pressurizing
investigations in what appears to be a
pre-determined direction, and consciously or
inadvertently producing an impression of bias
against the government. These are very serious
charges, and invite questions about the conduct
of the court.
There is no denying that
disquiet has been growing about the manner and
direction in which the SC appears to be moving.
Some legal minds are even of the opinion that
the court is veering towards judicial tyranny...
the SC must not only do justice (without the
heavens necessarily falling), but also be seen
to be doing justice. An overbearing posture or
intervention in areas beyond the purview of the
court has the unintended effect of bringing the
court under a cloud of suspicion and
controversy, something undesirable for the
judiciary.
The allegations have
triggered speculation in media and political
circles that the government is prepared to
confront the judiciary, which continues to tighten
the screws on the outgoing government.
The
government is poised to launch a counter-attack on
the court in the run-up to the dissolution of
national and provincial assemblies in March and
the executive-judiciary tussle is likely to take
new twists and turns that could fuel a political
and constitutional crisis. The political turmoil
may result in postponement of polls, paving the
way for military intervention and derailment of
the democratic process in Pakistan.
Syed Fazl-e-Haider
(www.syedfazlehaider.com) is a development analyst
in Pakistan. He is the author of many books,
including The Economic Development of
Balochistan (2004). E-mail
sfazlehaider05@yahoo.com
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