Pakistan’s National Assembly Adopts Bill to Curtail Powers of Chief Justice

The Supreme Court (Practice and Procedure) Bill 2023, presented by federal minister for law and justice Azam Nazeer Tarar, was passed hours after the Standing Committee on Law and Justice approved the cabinet’s proposed amendments.

New Delhi: Pakistan’s National Assembly on Wednesday, March 29, adopted a bill aimed at curtailing the discretionary powers of the chief justice, a day after Prime Minister Shehbaz Sharif said that “history would not forgive us” if parliament did not enact laws to curtail the powers of the country’s top judge.

The Supreme Court (Practice and Procedure) Bill 2023, presented by federal minister for law and justice Azam Nazeer Tarar, was passed hours after the Standing Committee on Law and Justice approved the cabinet’s proposed amendments, Dawn reported.

These developments occurred in light of two Supreme Court judges questioning the suo motu powers of the country’s top judge.

The bill will now be presented in the Senate on Thursday, March 30 (tomorrow), The News International reported.

Sharif addressed the joint session of parliament earlier on the dissenting judgment by Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhail of the apex court. They had vehemently spoken against the unlimited authority of the chief justice to take suo motu (on its own) action on any issue and constitute benches of choice to hear different cases.

Their judgment focused on the case of suo motu notice taken by Chief Justice Umar Ata Bandial on February 22 about elections in Punjab and Khyber Pakhtunkhwa provinces. The suo motu power is based on the original jurisdiction of the court under Article 184 of Pakistan’s Constitution. However, its usage over the years has created an impression of partiality on the Chief Justices’ part.

Additionally, Justices Shah and Mandokhail rejected the 3-2 judgment in the suo motu case, saying that it was a 4-3 judgment to reject the maintainability of the case. They also scorned the Chief Justice’s power to form a bench for important cases.

According to Tarar, the bill ensures that “every cause, appeal or matter before the Supreme Court shall be heard and disposed of by a bench constituted by the Committee comprising the Chief Justice of Pakistan and two senior-most judges, in order of seniority”. The decisions of such a committee shall be by the majority.

On suo motu powers, the draft states that any matter invoking exercise of original jurisdiction under Article 184 (3) shall be first placed before the committee of three senior-most judges. 

The legislation also allows appeals. “An appeal shall lie within thirty days from a final order of a bench of the Supreme Court who exercised jurisdiction under clause (3) of Article 184 of the Constitution to a larger bench of the Supreme Court and such appeal shall, for hearing, be fixed within a period not exceeding fourteen days,” according to the proposed bill.

All of this is taking shape as the top court is hearing the decision of the Election Commission of Pakistan to postpone the provincial election until October 8, which exceeds the 90 days deadline by the constitution to hold elections after the dissolution of an assembly.

Thus, some have argued that the coalition government under Prime Minister Sharif, which supports the ECP’s decision to delay the election in the two provinces until October 8, seems to be using parliament to curtail the powers of the Chief Justice.

Post-presentation, members demanded that the bill be sent to a committee to discuss it and report back before voting. As the law minister did not oppose the demand, the speaker announced sending the bill to a committee, anticipating a report soon. The proceedings were prorogued until Wednesday. 

This story, which was published on March 29 at 10:45 am, has been republished on the same date at 6:58 pm with an update on Pakistan’s National Assembly adopting a bill to curtail powers of the Chief Justice.

Why Imran Khan’s Civilian Govt Seems Remarkably Similar to Musharraf’s Military Dictatorship

The administration’s attempts to clamp down on free speech at last week’s Asma Jahangir Conference in Lahore showed it as anti-democratic and repressive.

Lahore: Certain anti-democratic and repressive traits of Prime Minister Imran Khan’s government in Pakistan surfaced last weekend when several attempts to muzzle free speech were made during and after the third Asma Jahangir Conference, held on November 20 and 21 in Lahore.

The conference has been held annually since 2018 in memory of Asma Jahangir, the late Pakistani human rights activist and lawyer, although the spread of the pandemic last year had caused the 2020 session to be called off.

Members of the top judiciary attended the first day of the conference, including Saquib Nisar, the former chief justice of Pakistan, and Gulzar Ahmed, the current chief justice. Foreign dignitaries such as the ambassadors of the European Union, the United Kingdom, Germany and the Netherlands opened the conference with their speeches. Everything ran smoothly – almost dully – until Ali Ahmed Kurd, former president of the Supreme Court Bar Association (SCBA), made his way to the rostrum. Then everything changed.

Speech of dissent

Kurd has been known for his blazing, passionate speeches since 2008, when the lawyers’ movement, also known as the movement for the restoration of the judiciary, took place against military dictator General Musharraf who had been in power at the time.

Former Pakistani Military Ruler Pervez Musharraf

Pakistan’s former President Pervez Musharraf speaks during a news conference in Dubai March 23, 2013. Photo: Reuters

When he spoke at the conference, it was with his usual theatrics – voice rising higher and higher, body language agitated. While the audience enjoyed the drama, it soon became clear that Kurd’s speech was too direct and outspoken: one could almost see tension rising from certain people. The chief justice of Pakistan, at whom Kurd’s criticism was directed, appeared indifferent. But there was no doubt that each line that Kurd uttered was more critical than the last.

Kurd’s panel topic centred on ‘The role of the judiciary in protecting human rights and strengthening democracy’. In his speech, he brazenly asked the organisers of the conference, “What judiciary are you talking about?” and then went on to say that the judiciary of Pakistan had one of the lowest rankings in the world.

“Out of 130, we are on number 126! A journalist asked me my comment about this deplorable ranking. I said, are you as a Pakistani not happy about the fact that we are still four places higher than the bottom?” Kurd said as the audience exploded with laughter.

He also said that there was a clear division within the judiciary and that this inefficiency is why Pakistan’s ranking is so deplorable.

Aik general (one general)!” Kurd shouted four times before the audience, delighted by what he had been saying so far and anticipating more jibes at the establishment, permitted him to complete the sentence. Only after Ahsan Bhoon, the current president of the SCBA, managed to hush a group of students chanting slogans like “Hum cheen kay lenge azadi (We will snatch our freedom)!” could Kurd continue, whereupon he said, “In this country, one [army] general was superior to the 220 million citizens”, which caused serious unease among several people in the crowd.

One day later, Kurd was charged with Article 6 (high treason). This is not new for him. He had faced the same charge in 2008 when the police claimed that after the funeral prayers of the assassinated Baloch leader Nawab Akbar Bugti on August 29, Kurd had made objectionable speeches against the state and had incited people against the government. While the 2008 charge was later dropped, it is difficult not to compare Imran Khan’s civilian government of today to the military dictatorship of 2008.

Also read: Pakistan Cricket and the Inevitable Tryst With Heartbreaks

‘A thing done by rats’

Kurd’s speech obviously went viral, leading to trolls accusing the lawyer of sedition and a backlash against the organisers of the conference. But it was on the second day of the conference, Sunday, November 21, that Pakistan faced one of its worst incidents of censorship in recent times when popular political leader Mian Nawaz Sharif, the head of the Pakistan Muslim League (PML-N), was abruptly cut off during the live video call via which he was participating in the conference.

The Pakistan Muslim League chief had been invited to the closing panel of the conference along with leaders of other political parties, including the Pakistan People’s Party (PPP) and the ruling Pakistan Tehreek-i-Insaaf (PTI).

While Senator Farhatullah Babar, senior leader of the PPP arrived readily, the PTI’s Fawad Chaudhry – ironically Pakistan’s minister of information and broadcasting – refused to come. He announced this not to the organisers, but via a tweet.

“I was invited to the Asma Jahangir Conference today. I was told that the conference would end with a speech by a fugitive accused. Obviously, this is tantamount to mocking the country and the constitution. I have apologised for not attending the conference,” Chaudhry said in the tweet.

But when the organisers did not back down from including the PML-N chief on the panel, the government used baser methods to try and stop them.

At first, cellular services went down two hours before the concluding session. Then when the video call connected, within seconds of Sharif’s address which began with a condemnation of the clampdown on freedom of speech, the call disconnected.

According to the organisers, they had been tipped off that the government-run Pakistan Telecommunications Authority would send people to the internet service providers and tell them to cut the connection. So they had made other arrangements.

“They have tried to block us off, but we are not far behind. We have always found our way round their tactics of muzzling us. Cutting off cables is a thing that is done by rats,” said Asma’s daughter Munizae Jahangir, journalist, anchor and one of the main organisers of the event.

And so a telephonic address ensued. Not much could be heard because the sound quality was bad, but the move symbolised resistance.

Also read: Ambedkar’s Warnings About Three Types of Dictatorships

‘Your regime resides in glass houses’

The Nawaz Sharif fiasco was to be expected, although the organisers had violated no laws. While a notification issued by Pakistan’s electronic media watchdog PEMRA had banned any live videos of Sharif to be telecast, the ban extends to television only, not an address to a gathering, not even to digital media.

That the government was uncomfortable about the conference’s open conversations was also felt when they did not allow visas to be given to foreign guests invited as speakers, including those from India. Journalists Barkha Dutt and Jyoti Malhotra and lawyer Vrinda Grover all had to participate online because they were not given visas. Steven Butler, the Asia Pacific head of the Committee to Protect Journalists (CPJ) was also not allowed to come for the second consecutive time. For the 2019 conference, when Butler, armed with a valid visa arrived at the airport, he was actually barred from stepping outside and deported.

The bullying by the government has not stopped. Fawad Chaudhry and others from the PTI cabinet urged an investigation into the funds of the chief organiser of the event, the Asma Jahangir Legal Aid Cell, known locally as AGHS. This was after the entire event was said to have been funded by the European Union, the German Embassy, the Embassy of Netherlands and the Canadian High Commission. The PTI government constantly issues statements against the conference, calling it a “foreign funded” event. This accusation was often made about Asma Jahangir too – but hardly anything has ever been proved.

Posting a still of Fawad Chaudhry accusing the event organisers of using foreign funding, journalist and author Nadeem Farooq Paracha quipped on social media: “Bhai, pura mulk ghair mulki funding pe chal raha hai. Kya IMF mulki idara hai, jiska head office Jhelum mein hai (Man, the whole country is being run on foreign funding. Is the IMF a local institution, whose head office is in Jhelum)? Your regime resides in glass houses, Fawad Sahib. Shouldn’t throw stones.”

On November 23, a letter was drafted by Aliya Hamza Malik, a member of the National Assembly, who demanded that the following matters be taken up in the assembly: apart from the source of funding, the work done by the AGHS and why the forum gave an ‘absconder’ a place on the panel.

AGHS was formed in 1984 by four women lawyers including Asma Jahangir and her sister Hina Jilani, both leading human rights lawyers of the country and recipients of international awards. The organisation provides access to free legal aid for all marginalised communities, especially women and children, and minorities. During her life, Asma won a plethora of cases where basic human rights were being pitilessly violated, including cases of blasphemy, bonded labour, the right to due inheritance, violence against women, rape and forced marriage. One of these cases shook the nation when a young woman who wanted to marry of her own free will was shot dead by her own father inside the AGHS’s shelter home, Dastak.

The (over) sensitivity of the PTI government regarding free speech and expression as well as a free press has been increasing of late, it seems. On November 22, just one day after the conference, the prime minister himself ordered an inquiry against a senior joint secretary of the cabinet division for posting “objectionable comments” against the ruling party on a social media platform.

The post had allegedly said in Urdu: “A similarity between the PTI and the Taliban is that both are figuring out how to run the government only after assuming power. And the centre of hope for both of them is Aabpara.” (Aabpara is where the Lal Masjid is located).

Pakistan’s governments – not just this one, but earlier ones as well – refuse to understand that it is useless to clamp down on the press. They can try and crush it, but the public still squeezes out and forms its own narrative in other ways.

If the government wants to be perceived as a democratically elected set-up, if it wants people to believe that it is honest and uncorrupt – an agenda that Imran Khan always seems to push – then it must stop muzzling the press and silencing dissent. After all, freedom of speech is a basic human right.

Xari Jalil is a journalist who reports from Karachi and Lahore. She is also co-founder of Voicepk.net, a non-corporate/non-profit digital platform for human rights. She tweets at @xarijalil.

In Pakistan, the Army Chief Got an Extension, but the Game Is Still on

The impending extension for General Bajwa has started a new round of political games instead of ending them.

This past week, the upper and lower houses of Pakistan’s parliament approved three separate bills regarding the appointment, reappointment, extension, tenure and superannuation age of chiefs of the three armed forces.

The unholy haste and the uncanny unison with which the government and opposition – barring a handful of honorable dissensions – rammed those bills through parliament, left no doubt that it was a person-specific amendment for the army chief.

After all, not a single Chief of Naval Staff since 1979 or a Chief of Air Staff since 1986, has served more than three years, but three previous Chiefs of Army Staff (COAS) got extensions in the same time period.

The incumbent COAS, General Qamar Javed Bajwa’s extension had been imperiled by a Supreme Court of Pakistan (SCP) verdict last month. The SCP had allowed General Bajwa a six-month conditional extension and directed the government to address the terms of service of the army chief, through legislation.

That an all-powerful army chief’s extension had been challenged was a curiosity but a bigger curiosity is that the outfit and its chairperson who moved the petition are perceived to be close to army. Also, the outgoing Chief Justice of Pakistan (CJP) Justice Asif Saeed Khosa taking up and adjudicating the matter days before his retirement, while previous legal challenges to such extensions were rubbished by the courts, was quite interesting.

Also read: In Pakistan, the Judiciary has Hit the Army Where it Hurts

The bigger and much more immediate concern, however, was the epic capitulation of the Pakistan Muslim League- Nawaz (PMLN) led by the three-time former prime minister (PM) Nawaz Sharif, the Pakistan Peoples Party (PPP) led by Bilawal Bhutto-Zardari and his father Asif Ali Zardari, and a few Pashtun and Baloch ethno-nationalist parties.

The biggest shock, of course, came to the supporters of the PMLN, who have followed their leader Nawaz Sharif and his daughter and political heir-apparent Maryam Nawaz Sharif’s credo “vote ko izzat do” (honour the people’s vote), which is an implied reference to the army undermining the public mandate over and over again and toppling elected governments.

Sharif had been ousted from power in 2017, through what was perceived as a judicial hatchet job, on behalf of the army. He was replaced by the army’s handpicked PM Imran Khan, who had no qualms about extending General Bajwa’s term by another three years.

File photo of Pakistan army chef General Qamar Bajwa and Prime Minister Imran Khan in Miranshah. Credit: Khyber TV

The PPP, only a shadow of its previous self under its illustrious leader the late Benazir Bhutto, was not expected to put up any fight, and it certainly didn’t. It seemed like the three main parties were falling over each other to curry favour with General Bajwa and his almighty army. While there is no doubt that the PMLN has been virtually beaten to pulp by the army, it was still seen as a glimmer of hope against the army’s overreach, by its voters, supporters, and indeed the past critics.

But it seemed like the elder Sharif and his daughter had buckled completely and allowed the party faction led by the boss’ younger brother, Shahbaz Sharif – known for his army-appeasing posture – to make peace with the junta. Sharif, who is battling serious health conditions, and Maryam are out on bail, while some of their party stalwarts, including another former PM Shahid Khaqan Abbasi, still remain incarcerated, for not toeing the army’s line.

General Bajwa and his protégé Imran Khan seem to have won this round, but have they secured the game? It may be a bit early to say, but it appears that they haven’t.

Also read: The Real Googly: More than Imran, the Pakistan Army Wants Peace With India

Unlike the previous dictators General Zia-ul-Haq and General Pervez Musharraf, who extended their own COAS terms thrice or so each, and General Ashfaq Parvez Kayani, who was given an extension by the PPP, General Bajwa’s extension not only became controversial outside the army but apparently within its rank and file as well. There is political reason to believe that another opposition leader, Maulana Fazl-ur-Rehman of the religio-political party Jamiat-e-Ulama-e-Islam (JUI) had launched a protest march against Imran Khan, at the prodding, if not behest, of General Bajwa’s detractors within the army. The maulana is an exquisitely shrewd operator who is unlikely to have bid against a winning horse.

And there is some weight in that argument. Riaz Hanif Rahi, the person who had challenged General Bajwa’s extension, is rather well-known for usually filing petitions that suit the army’s interests. But more important than that is the contemporary history which indicates that even when no petition might have been filed, the contenders to the COAS throne from within the brass, played their cards craftily to ease the incumbent army chief out.

In spring 2007, when General Musharraf unceremoniously dismissed a sitting CJP and later in the year suspended him again along with dozens of other justices of the superior judiciary and incarcerated them with their families, there was a spontaneous outpouring of support for the justices from within the legal fraternity and in the general public. It snowballed into a popular anti-Musharraf campaign, dubbed as the lawyers’ movement, within days.

Anyone who had watched that movement evolve, was struck by the fact that after an initial crackdown against the ousted CJP Iftikhar Muhammad Chaudhry, the junta did not come down hard on his restoration campaign itself. Huge rallies, bar association events and corner meetings calling for and plotting Musharraf’s ouster, went on without interruption from the military regime. It was not lost on any keen political eye that the man-in-waiting, General Ashfaq Parvez Kayani, was in no mood to stop the campaign of attrition against his boss General Musharraf.

Also read: The Political Sands Are Shifting in Pakistan

While there were multiple hypotheses at that time, including Musharraf’s overtures to India over Kashmir, which ostensibly were unacceptable to General Kayani and rest of the brass, it seems that the reasons for their inaction were more mundane and personal. Musharraf giving himself three extensions had abruptly upended many a career in the general staff. And while the army is the chief and chief the army, at times the chief might not always get what he wants. General Kayani’s laissez faire approach to the lawyer’s movement resulted in Musharraf first doffing his uniform and then stepping down as president, and culminated in restoration of the CJP Iftikhar Chaudhry.

It is well within the realm of possibility that before long, General Bajwa would quite likely be in the same predicament as General Musharraf was. Firstly, the verbiage of new legislation is rather dubious – or even mischievous – and gives discretionary powers to the president in the service chiefs’ appointments and extensions etc.

In the current parliamentary system, the president of Pakistan is a figurehead who otherwise is supposed to serve as a rubber stamp for the chief executive i.e. the PM. There is a strong likelihood that an obscure petitioner a la Rahi would challenge, in the SCP, both the text and the intent of this legislation soon after the extension is officially notified. And the wheels within the wheels would likely roll to activate political opposition to the extension and whatever else it entails in the Pakistani polity.

Also Read: Imran Khan’s UN Speech Was Aimed at Helping Pakistan’s Army, Not the Kashmiris

The informed opinion is that Shahbaz Sharif et al have presented themselves to the army brass as a viable political alternative to Imran Khan, whose governance is so wanting  that even his backers are having second, third and fourth thoughts. With a tanking economy, a volatile regional and world geopolitical scene, the brass – minus General Bajwa – might be looking for a relatively steady hand at the helm. This scenario, if it were to play out, however, would require the PMLN standing completely abandoning its honour-the-vote sloganeering and agreeing to play second fiddle to the army brass, including the ones that intend to show General Bajwa the door.

The gist of it all is that for now, the fight for civilian supremacy over the praetorian guard has been upended by domestic realpolitik that seeks to oust Imran Khan and potentially his mentor General Bajwa, in the near future.

This, however, bodes ill for the proponents of the supremacy of the constitution, civil and human rights. It doesn’t augur well for the languishing economy either, as making common cause with the elements of the security establishment is bound to augment the latter’s narrow interests, not those of the public and country at large.

Regardless, the impending extension for General Bajwa has started a new round of political games instead of ending them.

Mohammad Taqi is a Pakistani-American columnist. He tweets @mazdaki