Judicial Crisis and the Missing Good Governance

On Saturday, the clash between the judiciary and the government was surfaced once again despite the fact that on various occasions earlier both the Prime Minister and the Chief Justice denied publicly of a confrontation between the judiciary and the government. As this drama unfolds, the Chief Justice of Pakistan, in a sou motu action, has suspended two Presidential orders pertaining to the elevation of Chief Justice of Lahore High Court Khawaja Sharif to the Supreme Court and of appointing Justice Saqib Nisar as Acting Chief Justice Lahore High Court.

The prime reason for this suo motu action is that the presidency has not ‘consulted’ Iftikhar Chaudhry, Chief Justice Supreme Court prior to the issuance of aforementioned presidential orders and therefore is a violation of Article 177 of the Constitution of Pakistan. Nevertheless, the government’s stand is that the formal consultation was held with the Chief Justice and judges’ appointments were as per constitution. So far, government has failed to provide a documentary proof of any such ‘consultation’ on the issue of appointment of judges of the superior court. 

The above-stated news has already become the ‘lead’ story of all the Pakistani national newspapers. Different newspapers have used different vocabulary to the nature and severity of this incident. For instance, one English daily newspaper calls the Supreme Court’s verdict as a ‘stinging rebuke’; another English newspaper discusses it as ‘dangerous escalation’ and an international newspaper calls it as a “simmering power struggle”. Undoubtedly, it is a worrisome development for the nascent elected government in Pakistan, who presently is also confronting the looming security threats within the country and a Taliban insurgency on country’s western border. Many political parties have already reacted strongly by categorically calling the presidential act as “unconstitutional”. However, some opposition leaders such as Mr Nawaz Sharif (Chief PML-N), is using it as an opportunity to pressure the government, particularly Asif Ali Zardari. The News on Sunday reports PML-N Chief as saying:

“It is the biggest disservice to the democracy by a person who claimed to be a democrat and happens to be the elected president”.

PML-N Chief has been very vocal for the past two or three years on ‘independence of judiciary’ despite the fact that in 1997 in his term as Prime Minister, he also made a disservice to democracy by ordering an assault on Supreme Court building. Certainly PML-N Chief’s above stated comment elucidates that he is using a different yard stick to check incumbent government’s performance relating to independence of judiciary.

This whole judicial crisis highlights the need for a crucial missing element which is called ‘good governance’. Good governance which as defined by the OECD is “the management of government in a manner that is essentially free of abuse and corruption, and with due regard for the rule of law”. But do our institutions comply with the principles of good governance? Our history suggests that good governance is either used in elections to win people’s votes or the term appears in political speeches of opposition leaders, meant to destabilize the ruling political party.

One of the slogans of our elected government was certainly ‘good governance’ in February 2008 elections. But the current situation of the country (price hike, electricity shortage, security situation etc) has already nullifies the claims made during February 2008 elections by of our elected representatives. The worse of it is that the elected officials and appointed officials, legislatures and executive, at the moment are at war against each other. The recent politico-judicial turmoil is a clash between two personalities, Asif Ali Zardari Vs Iftikhar Mohammad Chaudhry’, which has been shaped up by now as a clash between the ‘executive and the judiciary’, and as rightly said by Asma Jehangir in her article dated December 19, the clash which began after the Supreme Court’s NRO judgment, has resulted in disturbing the equilibrium of power and an imbalance has been created in favor of judiciary.

Regardless of Prime Minister’s assertion that the country’s institutions will work within their respective domains, political experts of the country view it as “escalating political tension’ in the country which could have dangerous consequences for the incumbent elected government. Mr. Hussain Haqqani, Pakistani Ambassador in the US has been reported as saying that Pakistan would experience massive economic set-back if the democratic process is derailed in the country. This implies that to prevent Pakistan from going through another series of crises, both the legislatures and the judiciary should focus on constitutional provision, responsibilities and institutional integrity.