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Posts Tagged 18th Amendment

Khalai makhlooq – the myth and reality

I read a very good piece on the myth of army interference in Pakistani politics. That piece was general in nature but I want to talk about specifics.
Pakistani politicians have made it a habit to invoke the propaganda of army intervention in every sphere of our lives. This propaganda has a two-fold purpose. Firstly, to propagate that politicians’ hands are tied and the army does not allow a free hand to them to put their program into practice. Secondly, to create a smoke screen to hide behind, for their failures in any field of political activities. The net effect that is meant is to create a false impression among the masses that all the ills afflicting Pakistan are because of the army and not the politicians.  The pseudo-intellectuals propagate this myth due to ignorance, greed, agenda and in some cases, conviction. 
The longest lasting myth has been that Pakistan army considers Afghanistan to be its strategic depth and therefore is against stability in that country. This notion has been given a negative tone whereas strategic depth is not a bad thing to have or aspire for.  The short Taliban government was the most peaceful for Pakistan and the destabilization caused by US invasion has been a nightmare for us on many counts. The fruits of a stable Afghanistan will be for all to see when and if US forces withdraw and Indian influence is reduced. Then the true connotations of strategic depth will dawn on our intellectuals. 
The army has not or has been unable to thwart the most damaging actions of our politicians, actions that have brought the country to the brink of disaster. 
The first and foremost among these actions has been the 18th amendment. This act of politicians turned our federation into a confederation. What has resulted is that the two main political parties divided the country into their personal fiefdoms and that of their cronies (provincial political parties). This amendment allowed the provinces to take international loans against sovereign guarantees. The centre or federation has become a pauper, literally, with the burden of paying for defence, foreign affairs and many other such liabilities. The real trouble will come when loans taken by the provinces (and frittered away or gobbled up through graft) will become due for repayment and the federation does not have resources to repay these. Provincialism has increased resulting in everyday squabbles between provinces and federation on one matter or the other.
Successive governments have taken international loans by pledging national assets as collateral. A good percentage of these loans has gone into personal accounts of politicians. Thus we may have a situation whereby our airports, motorways, radio stations, and other similar assets may be taken over by entities that gave us loans against pledge of these assets.
The entire political elite and most of the bureaucracy indulged in every misuse of their respective authority, accrued personal gains of titanic proportions and relegated the masses to subhuman beings through wilful neglect of their needs. 
Every institution of the country (except armed forces) was manipulated by the politicians for their personal benefits and purposes. No overseeing institution was left with the capability or will to perform its constitutional responsibility resulting in total loss of state authority over the politicians and their henchmen. Laws were flouted with impunity and self-proclaimed immunity.
The entire society was systematically politicised resulting in the creation of pressure groups and mafias immune to the writ of the state. The entire state machinery was rendered subservient to local politicians who indulged in every anti-social activity turning the country into a banana republic bereft of law enforcement, the dispensation of justice and even recognised human behavioural norms.
The judicial system was rendered incapable of dispensing justice to the poor and downtrodden through appointments of politically biased individuals for self-serving purposes. Glaring miscarriage of justice became a norm and the entire system turned into a rudderless ship at the mercy of the strongest of waves! the politicians and their henchmen in the bureaucracy and lawyer community.
A succession of ill planned and ill executed projects undertaken resulting in colossal losses to the state.
Solar power project worth billions is only operating at 18% efficiency. Monumental cost hikes in projects like Neelum Jehlum power project and others have happened. State enterprises accrue a yearly loss of hundreds of billions because of mismanagement attributable to political meddling and the list goes on. 
If the above be true, and there will not be one sane and sincere individual to deny it, there is a million dollar question! why did the army or “khalai makhlooq,” not interfere to stem the rot? There can be only two reasons, either the alien beings were beneficiaries of the rape of the state or they did not have the muscle and the will to stop it. As for the former, there have been one or two odd examples in the entire armed forces in the entire history of Pakistan. The latter, however, belies the fabricated and concocted assertions of the politicians.
In the absence of any logical and cogent evidence of the so-called interference, a new technique has been adopted. In blaming Ayub Khan, mention of Bhutto as his accomplice is purposefully omitted. Ayub was all evil hence the credit for establishing ties with China must go to Bhutto but the Tashkent agreement was all garnered by Ayub and his foreign minister had nothing to do with it. Yahya was responsible for the break up of the country in 1971 but Bhutto, Mujib, Indra Gandhi and other politicians had no role to play in that disaster! Zia was a no good dictator and no politician ever stood by him or benefitted from him. The army distributed money for creating IJI but no politician ever touched that money. The army men involved in that episode must be tried and punished but no politician should face the same consequence because they have denied taking the money. Musharraf must be tried for treason but no politician should be tried for working against the interest of the country.

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No cloistered virtue

 
 
 
Updated 2013-08-26 07:42:04

CHIEF Justice Iftikhar Chaudhry’s long-drawn-out term is winding down and in a few months we will have a new chief. While we have had one chief justice for the last eight-and-a-half years, we might see up to seven in the next eight-and-a-half.

Now that we have an independent and fiercely assertive Supreme Court, it might be a propitious time to evaluate the independence of the individual judge in view of the administrative functions of the office of chief justice that gravely impact the administration of justice by the apex court and the judiciary as a whole.

It is now settled that an essential component of judicial independence is the ability of a judge to rule without being influenced by peers, including the chief justice. Critics assert that lack of independence of the individual judge is evident in the near absence of dissent in our judicial verdicts. Can our national propensity to flatter the powerful explain this trend? Sociological inclinations notwithstanding, the prime reasons for entrenchment of the misconceived concept of chief justice being pater familias (owner of the family estate) are structural.

Lord Acton asserted that, “liberty consists in the division of power; absolutism, in concentration of power”. The civilised world through a process of trial and error has now learnt that the best defence against abuse of power is distributing it widely and making its exercise transparent and accountable by subjecting it to an institutional system of checks and balances. We have unfortunately not applied this wisdom when it comes to the chief justice’s office.

The framework of rules, procedures and traditions that enables a chief justice to establish dominion over judicial offices across Pakistan is neither in sync with our constitutional structure nor with best institutional practices. The judiciary is no army for which unity of command is a functional necessity. The chief justice ought to be the first among equals and no more. But concentration of administrative functions in the office of chief justice is such that it can transform any incumbent into an autarch with significant ability to influence judicial outcomes.

We have a federal constitutional structure that endows each high court with the power to superintend and control courts subordinate to it. The Supreme Court is vested with no supervisory jurisdiction over high courts or district courts. Other than its extraordinary Article 184(3) powers, it is only meant to exercise appellate jurisdiction in matters decided by high courts. Unfortunately, over the last two decades we have seen judicial power getting bloated at the top and ineffectual at the district level where ordinary folk interact with courts.

The authority of the chief justice as chairman of the Judicial Commission, chairman of the Law Commission and chairman of the National Judicial (Policy Making) Committee, and the manner of its exercise, seems to be transforming our federal judicial structure into a unitary one. Is excessive use of Article 184(3) jurisdiction by the Supreme Court under Chief Justice Chaudhry’s watch doing to the relevance of High Courts what liberal exercise of writ jurisdiction in the 1990s by the high courts did to the potency of district courts?

Exercise of authority under Article 184(3), especially on suo motu basis, exemplifies the lack of transparency in exercise of administrative functions by the office of the chief justice. While the Constitution vests Article 184(3) powers in the Supreme Court, the administrative procedure employed for its exercise has converted it into the chief justice’s power. There are no objective criteria to determine which of the innumerable matters of public importance involving fundamental rights ought to be taken up by the Supreme Court in its original jurisdiction, especially of its own volition.

There are no objective criteria to determine how benches are to be constituted, how many judges will comprise a bench, what will their composition be, and which cases are to be fixed before each bench. During the last months of chief justice Sajjad Ali Shah the size of the bench headed by him that heard all consequential matters began to shrink. The tradition of dispatching judges out of favour with a chief justice away from the principal seat to hear decades-old appeals as sanction is well known, as is the practice of reconstituting benches midweek should a chief justice so desire.

The 18th Amendment introduced a detailed procedure to make the judicial appointment process deliberative, transparent and vigorous, while giving the Judicial Commission the power to regulate its own procedure. And what did the commission do? It made a rule stating that only the chief justice can nominate candidates for the consideration of the commission.

In other words through this procedural rule the chief justice has been given an absolute veto over all superior judiciary appointments across high courts as well as to the Supreme Court. His overarching authority within the Judicial Commission also gives him considerable ability to determine whether to elevate a high court judge to the Supreme Court or retain him as a high court chief justice and for how long.

The obligation to act in a fair and transparent manner imposed by law on all public office holders and enforced by the judiciary, applies with equal vigour, if not more, to the office of the chief justice. We need to introduce efficient and transparent case and court management systems in the Supreme Court and high courts to replace the existing system of unaccountable discretion of the chief justices.

“Justice is not a cloistered virtue,” Lord Atkin had observed back in 1936. As we approach a change of guard at the Supreme Court we must seek wider distribution of the administrative powers of chief justices amongst senior-most judges of the court to oust arbitrariness in the administration of justice and strengthen the independence of the individual judge. It is not the fame and power of a chief justice, but the integrity, efficiency and effectiveness of the ordinary magistrate that is the gauge of a functional justice system.

The writer is a lawyer.

sattar@post.harvard.edu

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