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By Muhammad Amir Rana
THE PML-N-led coalition wants to introduce a judicial reform packagethrough a constitutional amendment in order to extend by three years the retirement age of the judges of the Supreme Court. Meanwhile, a country in North America is making waves by revolutionising its own judicial appointment mechanism and coming up with unique reforms.
The appointment of judges in our country has been a contentious issue for decades, but particularly before the Judicial Commission of Pakistan was established in 2010. This forum was created to nominate judges to the high courts and the apex judiciary. However, the appointment process remains a subject of debate within the superior judiciary: should the judges be appointed on the basis of the ‘seniority principle’ or simply on the basis of merit? The formalisation of objective criteria for assessing judges’ merit is still under debate.
It is easy to understand why both the executive and judiciary seek to reform the judicial appointment mechanism. Whatever the reasons behind these reforms, they could be a blessing in disguise if they serve the broader public interest and ensure timely justice.
On the same day that a press release was issued by the chief justice of Pakistan’s secretary, Muhammad Mushtaq Ahmad, clarifying a misunderstanding about the CJP’s off-the-record conversation with journalists, Mexico introduced landmark judicial reforms in its parliament. The press release explained that during the Sept 9 discussion, the chief justice had stated that he had informed the law minister that if a proposal for an extension in his tenure were intended to be individual-specific, he would not accept it. Newspapers and TV channels had widely misquoted the chief justice as saying he would refuse an extension to his tenure.
On Sept 11, Mexican senators approved a judicial overhaul spearheaded by the outgoing President Andrés Manuel Lopez Obrador. The changes would mean that Mexico will become the first country to allow its voters to directly elect judges at all levels, including to the apex court. Hitherto, the appointment of supreme court judges in that country had been confirmed by its senate from a presidential shortlist.
The reform will see the election of more than 6,500 judges, magistrates, and ministers, while lowering the number of supreme court judges to nine from 11, and reducing their tenure to 12 years. It will additionally abolish a minimum age requirement of 35 years, and halve the required work experience to five years.
While the debate on the judicial reforms was underway in parliament, hundreds of protesters stormed the chamber, chanting, “The judiciary will not fall.” According to them, the plan would undermine judicial independence beside threatening the system of checks and balances. In fact, the elected judges could be in a position to be easily exploited by criminals in a country where powerful drug cartels routinely turn to bribery and intimidation to influence judges. Those favouring the reforms claim that the Mexican judicial system had become corrupt and only served the interests of certain power elites.
It is lucky that Pakistan doesn’t have powerful drug cartels that can influence the judiciary as in the case of Mexico. But there are others who are often perceived as doing so. While the motives of Mexico’s ruling party are debatable, they do carry some weight: a democratically elected judiciary would likely act in the public interest, as it would be held accountable by the voters.
There’s no knowing how long the reforms will last or if other states will follow suit. But suppose the system were introduced in Pakistan — how would it function? The implications of a democratically elected judiciary in Pakistan are intriguing.
The primary concern would be the holding of free and fair elections for an elected judiciary, requiring neutral institutions and an independent Election Commission — the latter itself might require a democratically elected leadership. If Pakistan were to have an elected judiciary, it could spark a debate about the supremacy of parliament versus that of the apex court. The current chief justice firmly believes in the supremacy of parliament, and he proved it by attending the golden jubilee of the 1973 Constitution in parliament. However, the question will remain as to the sentiments of an elected chief justice on the issue. And what about another powerful institution in the country holding veto power — how would that institution react to such reforms?
People will always dream of an ideal system, especially at times of critical challenges. In times of chaos, unconventional ideas tend to emerge. Recently, I had a conversation with an official dealing with Afghanistan, who said that the TTP issue cannot be resolved without establishing the rule of law.
His perspective suggests that there may be no military, political, or diplomatic solution to TTP terrorism in Pakistan. Even in the unlikely event that the Afghan Taliban refused to support the TTP, the group could thrive by exploiting sociopolitical fault lines within Pakistan. A similar dynamic can be observed in the case of the Baloch insurgency. The TTP has built its ideological and social capital by offering a tribal-style, speedy justice system, and in Swat, the main demand of fundamentalist elements has consistently been the establishment of an Islamic judicial system.
In this context, the official’s views are noteworthy. However, the panacea he suggested implies that the ‘mother of all solutions’ lies in fully implementing the rule of law — without which all other efforts are bound to fall flat.
As we observe Mexico’s experiment with a democratically elected judiciary, the key question is whether it can truly ensure the rule of law, meet public expectations, and remain immune to criminal influences. If successful, it may offer a model for Pakistan, a country which is in dire need of fresh ideas to address its own internal challenges.
The writer is a security analyst.
Published in Dawn, September 15th, 2024
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By Abbas Nasir
THE two concurrent sessions of the National Assembly and the Senate called over the weekend suggest that the government feels confident of reaching the two-thirds majority required in each House to pass a constitutional amendment bill aimed at making possible what it sees as a more sympathetic judiciary.
The million-dollar question that will remain unanswered is whether these changes in the Constitution, side by side with changes in the rules governing the Supreme Court such as those encapsulated in the Practice and Procedures Act, will lead to the sort of stability seen as a pre-requisite to economic development.
Such stability has eluded the country ever since the Nawaz Sharif government was destabilised around a decade ago and continued through the ushering in of the Imran Khan government in 2018 and then his ouster and the abnormally long tenure of the caretaker government. There has been little change in the ground reality since last February’s election.
As things stand, the civilian politicians in power and their backers in the military both believe that the superior judiciary (excluding the chief justice) is placing roadblocks in the path of whatever they have planned for the country and, therefore, the judges’ wings have to be clipped so they can’t do, as the hybrid set-up perceives, all that they do to help Imran Khan and his party.
For years, under the various military rulers, the superior judiciary remained largely compliant and instances of individual defiance in upholding the rule of law and the Constitution were few and far between. Therefore, they had minimal impact on the decision-making environment which remained arbitrary, whimsical and mostly driven by the autocrat’s desires.
However, when military ruler Gen Pervez Musharraf tried to get rid of the man he had handpicked earlier to be chief justice in 2007, the latter refused to resign and was suspended. This triggered a lawyers’ movement for his restoration and journalists and political parties also joined it.
There is no point in writing many paragraphs recalling what happened as events are too recent to forget. On the face of it, the chief justice’s institution rallied behind him and he was restored. This weakened Musharraf who had to hold elections that saw PPP forming a government in Islamabad and the PML-N in Lahore — though not before he sent the entire judiciary home and installed puppets in 2007; the judiciary was restored again after public protests led by the PML-N in 2009.
Post-elections, faced with an impeachment threat, Musharraf left the presidential office and was replaced by PPP’s Asif Zardari who got the most votes in the electoral college, comprising all elements of the country’s parliament including the provincial assemblies. Although it wasn’t clear then, it was not just the popular movement that saw Musharraf’s ouster; an influential faction within the military also, quietly, supported that change.
In his new life, CJP Iftikhar Chaudhry, a seemingly small man got enormous powers, and started to run all but a parallel administration and put obstacles in the path of the running of a smooth government by the PPP. His hostility to the PPP was intense and led to the ouster of elected prime minister Yousuf Raza Gilani.
Many of Mr Chaudhry’s decisions cost Pakistan dearly such as the one on Reko Diq. His critics also cite his decision on Pakistan Steel, which stopped its privatisation and eventually led to its demise. These are just a few in a plethora of judgments.
But as this particular CJP tightened his grip on the Supreme Court, he won the support of the entire bench and it stood as one behind his decisions and transgressions alike. It was surprising to see justices of immense merit, competence and credibility also agreeing with him even in cases where the opinion among the top legal experts was different.
It was during his heyday that he threatened parliament with striking down any legislation which included a meaningful role for elected lawmakers in judicial appointments, and monopolised all such elevations. This threat fitted in with his high-handed behaviour with all who appeared before him, whether politicians or senior civil servants or police officers.
If Chaudhry lowered the bar for both judgments and conduct, one of his successors, Saqib Nisar, obliterated all standards. He seemed to dance to the tune of the powerful intelligence bosses and acted obnoxiously in public with a large number of people, many of whom were left wondering as to what they’d done to deserve such treatment by the man tasked with delivering justice to all Pakistanis.
It may have been Saqib Nisar and his cohorts who finally ended up spoiling the establishment to the point that they started to take as normal total compliance with their ‘requests’. Now when the establishment has put its money on a different horse, it has been troubled by many senior members of the judiciary not playing ball. Hence, the hybrid set-up’s ‘need’ to control some outcomes by controlling who gets or keeps the top job and other key positions in the high courts and the Supreme Court.
As these lines were being written, the apex court issued a clarification on the ECP’s request to clearly spell out that 41 elected members who did not submit their affiliations after the short Supreme Court order be treated as PTI members. It isn’t clear if some of them were among those the government was relying on to reach a two-thirds majority in the National Assembly and could stymie the move.
Whatever happens, two things won’t change. The first is that the judiciary seems gung-ho in safeguarding its right to adjudicate as it deems fit. And the second is that Imran Khan and his party can’t be wished away. They remain defiant and seem even more relevant after their performance in the last election.
Against this backdrop, it is very difficult to see how Pakistan will attain the stability it so desperately seeks. If that stability remains elusive, its impact on the economy and the people can only lead to more upheaval. Could it be time to pull out the drawing board again?
The writer is a former editor of Dawn.
abbas.nasir@hotmail.com
Published in Dawn, September 15th, 2024
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Aizaz Ahmed Choudhry
FORTY days after Sheikh Hasina Wajed fled Dhaka, Bangladesh is slowly recovering from the after-effects of her government’s violent crackdown on the students-led protests, that reportedly cost over 1,000 lives. The intellectual community worldwide is curious to understand why Hasina, who cultivated her image as the ‘iron lady’, lost her grip on power so rapidly, as well as the nature of the change in Bangladesh. Since 2009, Hasina ruled Bangladesh like an autocrat, crushing all opposition ruthlessly. She also built a cult around the figure of her father, Sheikh Mujibur Rahman. Her ouster pacified widespread concerns in the country regarding the erosion of multiparty democracy under her and the attempt to impose one-party rule.
It has certainly been a peoples’ moment in Bangladesh, with terms such as ‘Monsoon Revolution’ being used to describe the change. However, it is not clear if this change is permanent and if political stability will return to the country soon. Hasina’s party, the Awami League, has lost considerable ground, but will endeavour to make a comeback, arguing that it represented the country’s secular ethos. Her 15-year rule enabled the party to spread its tentacles to every aspect of national life. Under her, the country saw notable economic development, though this was not inclusive and inequalities sharpened amidst unemployment and inflation.
In foreign policy, Hasina chose to capitulate to Indian dominance, which for the freedom-loving Bangladeshis was suffocating. For now, India’s space in Bangladesh has been squeezed, but it is evident that it will make every effort to preserve its influence. Of crucial interest to India is border security, given the 4,000-kilometre-long porous border and active insurgencies in India’s north-eastern states. However, the immediate challenge for India’s leaders is how to handle the presence of Hasina in their country. As long as she is in Delhi, the latter’s relations with Dhaka are not likely to improve. Given that the two countries signed an extradition treaty in 2013, many in Bangladesh have called for seeking her return to stand trial for the over 90 criminal cases lodged against her and her aides.
India is trying to manipulate the narrative that brought about the change in Bangladesh. Indian researchers and media are advancing a narrative that the change would nudge Bangladesh towards Muslim fundamentalism, and that the Hindus in Bangladesh were being targeted, which according to the BBC were mostly rumours. Ironically, it is India where religious persecution has risen to alarming levels. India is also desperately projecting the possible involvement of a foreign hand in the change, which appears to be totally indigenous. This is intended to discredit the change brought about by the sacrifice of the students who stood up to Hasina’s tyranny.
Meanwhile, the interim government led by Muhammad Yunus is struggling to address the politically charged environment and reboot the economy, which was slowing down even before the protests began. The country’s garment industry has taken a particular hit due to the weeks-long protests. The government has set up a task force called ‘Re-strategising the economy and mobilising resources for equitable and sustainable development’.
Politically, a healing touch is required. The student leadership wants fundamental reforms in the judiciary, police, and election commission before the polls. It appears that elections may be delayed for some time.
As for the regional setting, Muhammad Yunus has underscored the need to revive Saarc, which was established in Dhaka in 1985. He wants Bangladesh to become a member of Asean and then serve as a bridge between Saarc and Asean.
How should Pakistan respond to this change? Pakistanis care for the people of Bangladesh, and should fully respect their right to determine their political destiny in whatever way they want. However, Pakistan can take satisfaction from the fact that Hasina will no longer be able to falsely accuse it or manipulate the sad events of 1971. The poisonous propaganda against Pakistan might also stop.
Hasina’s exit from power provides an opportunity for Pakistan and Bangladesh to reset bilateral ties. However, Pakistan must have realistic expectations of what the new interim government can do at a time when it is endeavouring to set matters right internally.
Pakistan has done well by expressing solidarity with the people of Bangladesh in the face of the devastating floods that recently hit the country’s eastern region. The two countries could also encourage people-to-people contacts and youth exchanges that Hasina had blocked. It would be appropriate for both countries to move towards each other at a measured pace with realistic expectations.
The writer is a former foreign secretary and chairman of Sanober Institute Islamabad.
Published in Dawn, September 15th, 2024
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By Muna Khan
EVERY day is a terrible day for women everywhere in the world. I’m loath to rank crimes from most horrendous to least because there’s no such thing, so I’m writing about some especially horrific stories in no particular order. Although I have been covering gruesome acts against women for at least two decades and consider myself desensitised, I was stunned by the following.
Dominique Pelicot is on trial in France for the mass rape of his wife, the 72-year-old Gisele, whom he drugged; he enlisted 80 men to rape her in her own bed for a decade. Gisele only found out about these unimaginable crimes when her husband was arrested for inappropriate filming of young girls and police confiscated his computer. There he had kept meticulous records of the repeated sexual abuse of his wife, which he organised and filmed. Police say it is not possible the men did not know she was unconscious. One man charged with the crime told police he thought she was asleep and it was “part of the play”.
Dominique has admitted to drugging his wife with sleeping pills before inviting men he met on an online platform to abuse her. “I put her to sleep, I offered her, and I filmed,” he told the police when he was arrested, according to French media.
I salute Gisele for her bravery in waiving her right to anonymity, attending the trial which she asked be made public and sitting through the images and videos.
Dominique and 18 men are in custody while 32 are attending the trial as free men while one man, who remains at large, will be judged in absentia. He and the 50 men could face up to 20 years in prison if found guilty. Thirty men, however, are still at large.
Gisele told the court she was worried she had Alzheimer’s because her memory and concentration were poor. The toughest part was telling her adult children what their father had done. Their daughter, who published And I Stopped Calling You Dad in French in 2022, described him as “one of the worst sexual criminals in the last 20 years”.
Gisele has been hailed for her calm demeanour during the trial but she was quoted in the BBC as saying her face “masked a field of devastation”. The Guardian reported her saying “I no longer have an identity … I don’t know if I’ll ever rebuild myself.”
While Gisele has the support of her children and European social services, what can we expect for the woman scrap collector in Madhya Pradesh who was raped on a busy street last week as bystanders watched and filmed the incident. It was uploaded on social media and went viral. A man has been arrested for luring the woman and plying her with alcohol before raping her in broad daylight. He has admitted to the crime. Police say they are looking for those who filmed the incident.
Her case will not get the attention it deserves perhaps because Indian media is numb or this woman’s rape did not receive the outrage the rape of the trainee doctor in Kolkata did. It is a reminder of the challenges India faces with high rape cases and low conviction rates — 27 per cent between 2018 to 2022 according to official figures.
A criminal lawyer told Reuters rapists still think they can get away with the crime.
We’ve made getting away with crimes an art form in Pakistan.
You can say the most odious of things about women — on TV (dramas and news), in parliament or political rallies — and not face serious consequences. Women journalists are especially vulnerable. We saw it on Sunday when KP’s Chief Minister Ali Gandapur launched into a diatribe against women journalists using highly objectionable language. Reporters at this rally said they felt the crowd’s hostility turn towards them. This is so dangerous as increasingly people are being whipped into a frenzy and turn violent. Who would be held responsible if women journalists were attacked that night?
At the time of writing Gandapur had not apologised for those comments and after condoning them, Imran Khan told journalists in prison that Gandapur went too far. But it is because journalists protested. This is what we need to see more of: collective action like refusing to cover events where women are targeted. There must be consequences for dragging women down.
Earlier this year the World Health Organisation published a report showing that “globally about one in three … women worldwide have been subjected to either physical and/or sexual intimate partner violence or sexual violence by a non-partner in their lifetime.” It is a major public health problem.
I don’t know how policymakers can redress this issue but I know our attitudes — especially certain politicians’ — need a major rehaul.
The writer is a journalism instructor.
X: @LedeingLady
Published in Dawn, September 15th, 2024
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DAWN EDITORIAL
THE inter- and intra-institutional battles continue apace. With rumours and speculation at fever pitch, the National Assembly and Senate convened late Saturday afternoon, ostensibly to debate amendments to the Constitution.
However, soon after sessions commenced in the two Houses, it became clear that nothing dramatic was planned for the day. The opposition and treasury benches seemed more interested in trading barbs and attacking each other’s democratic credentials, while there was little discussion on the ‘constitutional package’ that was supposed to be tabled. As the day wore on, speculation picked up that the government had failed to lock down the votes it needed. Even with its allies, it seems to be short of the required two-thirds majority in both Houses. Furthermore, a Supreme Court judgment in the field on Article 63-A ensures that even if opposition legislators are induced to vote against their party lines, their votes will not count.
While these debates and discussions were playing out in parliament and on television talk shows, a bolt landed from the blue. The Supreme Court issued a long-awaited clarification in connection with its earlier ruling in the reserved seats case, directing the Election Commission of Pakistan to immediately notify all remaining PTI lawmakers as members of its parliamentary party. This gave finality to the status of 41 lawmakers that the government had been describing as ‘independents’, whose votes were up for grabs.
As things now stand, making constitutional amendments while remaining within the bounds of propriety and the law seems like an increasingly difficult task. The government should be asked why it set about attempting to change the Constitution in such a furtive manner. Few seem to know what is in its legislative package, and with the opposition accusing it of pressuring lawmakers to vote for it, it seems like a thoroughly undemocratic exercise overall.
Lastly, a word too on the ECP, one of the primary actors responsible for the growing political mess in Pakistan. Yet again, its actions have been found to be in bad faith and violative of the law. Not only that, the Supreme Court has also slammed its attempt to delay implementation of the July reserved seats verdict by seeking ‘clarification’ on the PTI’s organisational structure. The “attempt by the ECP to confuse and cloud what is otherwise absolutely clear as a matter of the Constitution and the law must […] be strongly deprecated,” the court has noted, warning it of consequences if it tries to delay issuing the notifications any longer.
Perhaps it is time that the institutions propping up the current regime realised that the state is sinking deeper in crisis not just because of the PTI, but also because their own actions are gradually robbing it of all legitimacy.
Published in Dawn, September 15th, 2024
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DAWN EDITORIAL
CHILD begging, the ugliest form of child labour, is a curse on society. Ravaged by disease, crime, exploitation and drug abuse, hundreds of poor children populate Karachi’s intersections and street corners. The Sindh Child Protection Authority informed the Sindh Assembly recently that it was, in coordination with the provincial police, planning an anti-child beggary drive to rescue these children. The social welfare minister stated that as organised beggary was a multimillion-rupee racket, it was a complicated scourge to eradicate. But the government has much to answer for. First, despite beggary being illegal in Pakistan with up to three years in jail for beggars and parents of young mendicants, what propels the menace? Second, while several campaigns failed due to the absence of comprehensive data, we continue to formulate policies and initiatives based on guesswork.
The Asian Human Rights Commission’s estimates show that approximately 2.5 to 11pc of Pakistan’s population is begging; 1.2m children are on the streets of our urban centres. Hence, it is time to adopt a multidimensional rescue and rehabilitation model that resolves prime catalysts — poverty, climate crises, domestic violence, addiction, lack of education and unemployment — for the rising number of child beggars. Beggars are an ostracised social group; over 90pc of street children are sexually exploited. Authorities, in collaboration with NGOs, health and education experts, need to institute localised monitoring methods through child protection units in urban and rural areas with trained medical, security and counselling personnel. These should serve helpless families and children as contact points for security and shelter. Child beggars are not the same as destitute minors and orphans. Emotionally neglected and deprived of food, shelter, education and clothing, they are commodities in the hands of a mafia. Often, their psychosocial growth is impaired and they either become addicts or mentally ill. Every child trapped in poverty or a criminal network has to be healed for a prosperous society.
Published in Dawn, September 15th, 2024
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