Calls for reviewing the procedure for judges’ appointment, regulating suo moto powers and setting up of Constitution Court
Lahore January 11, 2016: In a wide ranging address to the Lahore High Court Bar Association covering issues in democracy, constitutionalism and rule of law the Chairman of Pakistan People’s Party Bilawal Bhutto Zardari today called for revisiting the procedure for the appointment of judges, the setting up of a Constitution Court, regulating the use of suo moto powers, provision of speedy and inexpensive justice, legislation to prevent misuse of blasphemy law and ending the culture of sacred cows in fighting corruption. He also addressed issues in the National Action Plan describing it as “Noon League action plan” that had failed in stopping banned outfits from resurrecting under other names.
“I urge you to give a thought whether the independence of judiciary is guaranteed by vesting the power to appoint judges by the judges alone or is it best served when the power to appoint judges is diffused between the Parliament, the President, the Prime Minister and the Bar Council?”, he asked the galaxy of lawyers present at the bar address Monday morning.
He said the restoration of judiciary in March 2009 as a result of public demonstrations created some sort of euphoria that led some to believe that a new era of independent judiciary had dawned but some people thought otherwise, he said.
He said that during 2010-13 the Judicial Commission (JC) made 126 nominations of judges in the Supreme Court and the five high courts while the Parliamentary Committee (PC) disagreed with only 8 appointments. However, the Court overturned all the decisions of the Parliamentary Committee.
He recalled that President Asif Ali Zardari then filed a Constitutional Reference seeking opinion on the roles of the JC, the PC and the President in the appointment of the judges and quoted from the verdict that the role of the President and the Prime Minister was no more than mere post offices.
Chief Justice alone initiating nominations, the JC making its own rules and conducting business in secrecy while neither President nor Prime Minister nor elected representatives had any role in the judges’ appointments.
Judges alone selecting judges was not conducive for the promotion of a bench with judges of divergent world views on issues in jurisprudence. It is not the question of integrity or competence of judges but an issue of diversity of judicial minds that must adorn the bench, he said.
He said that our failures were collective. “The politicians made mistakes, the establishment has made mistakes and the judiciary also has made huge mistakes”, he said recalling past judicial doctrines of “necessity”, or ‘a successful revolution creates its own justification’, the judicial murder of an elected Prime Minister and opposing judicial verdicts in cases involving a prime minister from Larkana and a prime minister from Lahore.
But let us not dwell too much into the past and move on, he said.
About the role of the Parliament he said that the Constitution has clearly laid down the scheme of powers in which lawmaking is the responsibility of the Parliament, the judiciary interprets the laws and the Executive implements the laws and quoted Articles from the Constitution that laid special emphasis on the role of the Parliament in constitution and law making.
It was therefore surprising when it was said that Honorable Chief Justice be consulted in the process of selection of Chairman NAB or in the appointment of Chairman and Members of the Federal Service Tribunal even when the laws made by the elected representatives of the people do not provide for this.
Bilawal Bhutto Zaradri also called for the setting up of Constitution Court with equal representation of all federating unites to decide constitutional issues saying that it was unfinished agenda of the Charter of Democracy signed in May 2006 between his mother Shaheed Mohtarma Benazir Bhutto and MianMuhammad Nawaz Sharif on behalf of their parties.
Bilawal said that the Court’s power to decide alone Constitutional issues was an “awesome power”. If this awesome power if not exercised with great care and humility it can undermine the democratic process itself and easily become what many call a judicial tyranny, he said.
About the use of suo moto powers he said it would be worthwhile to make a comparative study of how many suo moto notices were taken in PPP government and how many after the PPP was no longer in power..
Quoting from the report of the International Commission of Jurists which visited Pakistan in 2011 which said that the use of suo moto led to a corrosion of the rule of law and a blurring of the constitutional separation of powers Bilawal asked the lawyers to give a thought to whether there was need to regulate the suomoto powers. He said that he was happy that the Senate Committee of the Whole has also made some similar recommendations.
Stressing the need for access to speedy and inexpensive justice Bilawal called for a poor-friendly judicial system and vowed that the PPP will provide it to the people.
Those who cannot secure their rights easily through recourse to law are actually oppressed by the law, he said.
In our system of courts, the broadest interface of the citizens with the law occurs in the subordinate courts, he said.
Bilawal said that scant or no attention is paid to the improvement of the process of the civil courts and magisterial forums where these mills grind slow and inflict maximum pain. It will be the ppp mission to introduce reform, transparency, efficiency, expedition and integrity to the legal processes in the subordinate courts of Pakistan, he said.
About corruption he said that it was a serious issue and needed to be tackled but cautioned against using it as a brush to paint black only one section of society. We must challenge the double standard in pursuing corruption cases adding also “we cannot win the fight against corruption unless we do away with sacred cows syndrome”.
It is wrong to have one set of laws for one section of society and another law for another section of the society. The Fight against corruption must be across the board and above the board, he said.
Bilawal also called for addressing issues in intellectual corruption and constitutional subversion. Those who upheld the constitutional deviations, validated military take over and dismantled the democratic structures have also to answer many questions about honesty he said and asked whether we should not pursue those who have subverted the Constitution or validated constitutional subversion through PCOs and court verdicts.
He said that the PPP was deeply concerned and condemned the growing misuse of blasphemy law for silencing dissent and for oppressing minorities and welcomed the recent Supreme Court verdict and its call for looking into this issue.
He expressed the hope that the Parliament will take note of the Supreme Court verdict and make appropriate legislation to prevent the misuse of the blasphemy law.
He questioned whether the government was sincere in implementing the National Action Pan to fight militancy and extremism. He said that the APS martyrs had united the nation which was in disarray as many asked whether the war against militancy was our war or not, the Punjab Chief Minister even asked Taliban to spare his province because he shared their world view and some demanded that Talban be allowed to open offices in Peshawar.
He said ever since the moratorium on death penalty was lifted more than three hundred executions have been carried out and asked how many of those executed were black jet terrorists and how many other ordinary criminals and asked as to why some juveniles and even mentally challenged people were hanged?
He said that the National Action Plan was in fact Noon League Action Plan as it followed the agenda of Noon League and not the national agenda. Banned organizations continue to function under other names he said and quoted from replies given to questions asked in the Parliament to prove his point.
He said that according to the replies in the parliament 61 militant organizations have been banned in the country but it did not know how many of them were working under new names nor whether any action has been taken against the resurrected organizations.
In March 2013 during the PPP government a law was passed under which a banned organization was not allowed to reappear under a different name but the present government is not even aware of it.
He said he called it Noon League Action Plan because no action has been taken against extremist militant organizations in the Punjab.
The National Action Plan called for reforming FATA but no reforms have been introduced in the tribal areas and the Prime Minister has not even acknowledged a personal letter from the former President urging him to expeditiously adopt the Bill passed by the Senate giving them the right to approach superior judiciary for the enforcement of their rights.
He said that the interior minister says that he did not want to coordinate the activities under NAP and accepted to do it unwillingly because the Prime Minister had said so.
Under the law the NACTA Board of Governors is headed by the Prime Minister and it must meet once in three months but had not met for the past one year even once.
He called upon the government to abandon the policy of running with the hare and hunting with the hound in dealing with militants and militant organizations.
After Soviet withdrawal the west disowned militant outfits but we owned them as “assets”. Later we coined words “good” and “bad” Taliban to justify state patronage of some militant outfits. He said that the Defence Minister recently said that the government will talk to Afghan Taliban for security of TAPI gas pipeline and asked whether it was state policy to out-source security of strategic economic projects to non-state militants.
Is this still the state policy?
It seems we have still not abandoned that policy and are still running with the hare and hunting with the hound and asked whether we could expect Afghanistan to believe in our pious protestations?
The survival of our country depends upon democracy he said adding it is the duty of every individual and every institution to play its part in strengthening democracy. The ethos of our people is democratic and that was why dictatorship has not been able to take root in the country, he said and paid tributes to the heroes of democracy for bearing the scars of torture on their bodies.
Bilawal Bhutto Zardari paid glowing tributes to the LHBA, the lawyers, the media and the people for the democratic struggle and ended his speech with a quote from the speech of his mother “I believe and the Pakistan Peoples’ Party believes with me that that greatness lies within our grasp and a dream lies within our grasp, a dream that can best be nurtured in freedom, in law, in respect and in dignity”.