Judicializing Politics in Pakistan: Choudhary Vs. Zardari

(An interview with Tausif Kamal)

Tausif Kamal

“I think the present Chief Justice is embarked on a path of vendetta and partisanship against the PPP government. Also the Chief Justice seems to be tainted by family corruption, incompetence and he is a plain power grabber”

The current political crisis raises several valid questions within the context of political stability and the growing judiciary’s power in Pakistan.

Is this a personal conflict between the president of Pakistan and the Chief Justice? Does the trend reflect a growing shift all over the world where judiciary is becoming more powerful than other political institutions? What is a functional and acceptable balance of power between state institutions that could ensure survival and continuation of democracy in Pakistan?

To get answers to these and other questions, Viewpoint interviewed an experienced lawyer currently based in the U.S. who has also worked in Pakistan.

Attorney Tausif Kamal, based in Houston, has a keen eye on the current crisis in Pakistan and has published articles on the situation in several Pakistani newspapers. As an author, freelance writer and analyst, he is a former Legal Head of BP Pakistan and General Counsel of SEPOC Inc. He is also a member of the American Bar Association, U.S. Supreme Court, and Federal and Ohio State Bars.

 

How do you define and differentiate between judicializing politics and politicizing judiciary? Can you give any examples within the context of Pakistan and other countries?

Good question. I would say that Judicializing politics and politicizing judiciary are two sides of the same coin that is, mixing of politics and judiciary. Ideally speaking these two elements should be kept separate but in actual practice in the real world they often collide and are used and exploited with each other. In judicializing politics, political parties and political leaders resort to seeking judicial mandates or rulings on various issues in the public arena that suits their purpose rather than going to the people and seeking their support on various issues. One example in Pakistan of this phenomenon is the PML-N’s use of and resort to filing petitions on various issues of political nature   before the high courts to seek to seek a favorable verdict that benefits the party politically.

As far as politicizing judiciary is concerned it basically encompasses elections of judges and political parties influencing judiciary by getting their nominees elected as judges. This practice is common in the USA, as various judges in local and state elections are elected based on their party affiliations. At the federal level, the party in power ensures that candidates of their own ideology are appointed as judges in the federal courts as well as in the Supreme Court bench. politicizing the judiciary.

Judiciary in Pakistan has become extremely powerful in recent years assuming the role of a legislature and making highly political decisions. What are the reasons, historical and circumstantial both, behind this trend?

It seems that one reason for this trend is that historically in Pakistan judiciary has been subservient to the executive in power. For instance during the rule by military, army generals dominated and scuttled the independence of the judiciary. So may be the present posture is a way of the judiciary trying to assert their power and independence.

 

Some say judiciary has assumed a powerful role in the aftermath of World War II all over the world. It was the U.S. judiciary that interceded the Bush vs. Gore election and declared Bush as a winner, for example. Do you see similar trends in Pakistan as part of the global shift?

 

There’s a huge difference between Pakistan and U.S. judicial practices. In U.S. the case of the election of President Bush came before it on appeal from lower courts. The US Supreme Court did not grab this case on its own volition. In Pakistan, however, this Chief Justice is simply seizing political issue on his own, on the basis of the suo moto loophole in our Constitution and that’s a sheer abuse of judicial power. The Supreme Court in Pakistan has become a super chief executive or a super prime minister. You can say that this is a virtual judicial dictatorship.

 

Do you think this trend of politicizing judiciary is positive for the future of democracy in Pakistan?

 

This trend, in my opinion, would be disastrous for Pakistan and its fledgling democracy.

 

Historically, personal vendetta, political short sightedness and egos have played a bigger and destructive role in the body politics of Pakistan than a rationally derived political vision. Do you think this is the case in the current conflict between the judiciary and executive?

I think the present Chief Justice is embarked on a path of vendetta and partisanship against the PPP government. Also the Chief Justice seems to be tainted by family corruption, incompetence and he is a plain power grabber.

If you are the Chief Justice of Pakistan, how would you resolve the current crisis?

The Chief Justice of Pakistan has created a complete mess and has put the entire democratic order of the country at risk by his improper and unconstitutional court orders and verdicts, which were capped by his illegal order of dismissing an elected and constitutional head of the government on the pretext of contempt of court, which has got to be the first in the annals of democracy.

Can you imagine the U.S. Chief Justice John Roberts firing President Obama on account of contempt of court? Doesn’t t sounds crazy and laughable? In his actions and orders, this errand chief justice has violated many provisions of the Constitution and fundamental principles of law. He has usurped the expressed and clear separate powers of the Executive and Legislative branches, either because of his lack of legal knowledge or because of his authoritarianism.

Perhaps, the present crisis could be resolved if the full bench of the Supreme Court reverses his order of disqualifying Prime Minster Gilani and reinstate him. After that, the Pakistan Supreme Court goes back in earnestly performing its sworn and constitutional duty of adjudicating thousands of pending cases before its docket, and then focusing on reforming and improving our dysfunctional, corrupt, inefficient system of justice.

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