Their lordships at the bar of history
By Ayaz AmirFriday,July 20,2007
I AM writing this on Thursday morning when Aitzaz Ahsan, lead counsel for Chief Justice Iftikhar Mohammad Chaudhry, is on his legs giving his final arguments in this most consequential of cases. When will the decision come? I don’t know, perhaps today (Friday). Time then to sum up some of its leading aspects.
In the 60 years of our tumultuous and mostly star-crossed history, nothing of greater importance has ever come before the Supreme Court. Other famous cases in the past – Tamizuddin, Dosso, Nusrat Bhutto, etc – helped legitimise one martial law after another. In doing so, the highest court in the land became a party to the twisting and distorting of our history, helping to turn Pakistan into a congenial playground for civil and military dictatorships.
In this case alone has the opportunity arisen to mend that history by putting a rein and bridle on military adventurism. For the central issue in it is not just about the person of Justice Chaudhry and the treatment he received when he defied the wishes of Army House, the source of so much of Pakistan’s many discontents.
It is about something far greater: whether Pakistan’s destiny – and this was put well by Fakhruddin Ebrahim, one of the lawyers defending the Chief Justice – is to be ruled by the power of the gun or the power of the law.
On their lordships’ shoulders thus rests a heavy burden. That their decision is set to enter the pages of our history goes without saying. But whether it will be remembered for good or ill depends upon them and their judgment and courage.
But some prognosis is justified. The government case, always resting on the flimsiest of grounds, has been torn into shreds. Aitzaz Ahsan has been brilliant and resolute throughout. Indeed, the Chief Justice’s entire defence team, including Munir Malik, Hamid Khan, Tariq Mahmood, fiery Ali Ahmed Kurd, has acquitted itself well. More glory to them all. Ebrahim I have already mentioned.
By contrast, Gen Musharraf’s legal team has cut a sorry figure. Sharifuddin Pirzada, permanent counsel to tinpot heroes past and present, was scarcely in his element, which is not surprising considering that he has always been at his best before courts of his choosing. Most of the talking on Gen Musharraf’s behalf was done by Malik Qayyum, a reflection in itself on what his team was reduced to.
As a judge of the Lahore High Court, Qayyum was the most loyal of judges to the Sharif family, all their family cases somehow finding their way to his court. Later when some compromising audiotapes became public he had to step down from his judgeship. The legal fortunes of Army House reduced to Qayyum and, for a while, to that deadliest of blunderbusses, Raza Kasuri. Says it all, doesn’t it?
The government side also had to endure the ignominy of having to withdraw the charge of misconduct from the reference against the Chief Justice. As Justice Jillani sitting on the bench observed: what was then left in the reference?
So it will be the greatest of surprises if the steps set in motion by Army House against the Chief Justice are not reversed and the Chief Justice is not restored to his post.
What will this mean for the country? We know the stuff our tinpot leadership, for all its outward heroic air, is made of. Wilting under pressure is to put it mildly. The restoration of the Chief Justice, if indeed that comes about, will be a psychological blow further undermining its already shaken confidence and composure.
But the issue in this case, as already stated, goes beyond personalities. Whatever the Supreme Court’s decision may be, this is the first time in our history that the arbitrariness of authority has come under judicial scrutiny. For three months and more, a military-led dispensation has had to endure the humiliation of having to answer for a misdeed. Such acts were never questioned before, certainly not in the Supreme Court. So whatever the outcome, history in some sense has already been made.
And all because of two primary factors: (1) the courage shown by Chief Justice Chaudhry who instead of bowing before military authority chose to stand up to it; (2) the extraordinary fortitude and unity of the legal fraternity which rose to the Chief Justice’s defence and started a movement against the military-led regime which in the steadfastness shown has few parallels in our history.
Left to himself the authorities would have made mincemeat of the Chief Justice, humiliating him and seeing to it that his deposition was upheld. Of this we should have little doubt. If Qadeer Khan, our Oppenheimer, could be humiliated, what was so special about Iftikhar Chaudhry? In those circumstances, it is not too far-fetched to imagine, even the Supreme Court would have deserted him, such being the calculus of power, and the power of precedent, in our collective experience.
But if events turned out differently it is solely because the lawyers of Pakistan – not the most well-fed or the most heavily-pursed, it must be said, most of whom kept away from this struggle, but ordinary lawyers.
They are the heroes of this struggle, they and the people of Pakistan who supported them, turning out in huge numbers to welcome the Chief Justice wherever he went, indeed showering him with more rose petals than it has been the lot of anyone to receive in this country. Such is the power of example. Justice Chaudhry said no and the people acclaimed him as their hero. Unless I am grossly mistaken, he is the single most popular person in Pakistan today.
This is where this case has broken new ground. Previously, from Tamizuddin onwards, the judiciary was all by itself, no one aroused, no one rushing to the barricades. As such, bowing to expediency seemed to be the sensible thing to do. Instead of challenging the generals, judges became their collaborators. Usurpation was no sooner set in motion than it was given the fig leaf of respectability by the judiciary. As for the legal community, some of Pakistan’s best lawyers found themselves in the service of military rule.
This time things were different. The atmosphere, as has been noted, was completely transformed. It is from this atmosphere that the judiciary has drawn strength. If the Supreme Court has been able to examine this case judiciously, and with patience, it is because of the climate outside.
We know how quickly, and with what glee, Justice Javaid Iqbal took oath as acting chief justice. We also know with what alacrity the Supreme Judicial Council endorsed Gen Musharraf’s action against the Chief Justice. The tide began to turn with the lawyers’ revolt and, later, with Justice Bhagwandas (who was away on holiday at the time) taking over as acting chief justice from the prematurely-happy Javaid Iqbal. I think it will take us some time to realise the debt we owe Bhagwandas.
As for Justice Ramday, what a pillar of calm and assurance he has been, conducting the proceedings with great composure and, often, much wit. Without him, I suspect, we might have seen a fractious bench, pulling in different directions. So it is scarcely surprising if for once people at large are hopeful, instead of cynical, about an impending decision of the Supreme Court. Long may it be this way.
So we can see where we are. Never were circumstances more favourable for the judiciary to stand up for its rights and the rule of law. It is for their lordships to read these signs across the skies. It is for them to inscribe their names in letters of gold in Pakistan’s often unhappy history.
Pakistan’s future hinges on the triumph of constitutionalism and democracy. The extremism we see erupting across the country is a product of years and years of military rule, jihad being a card which GHQ has played from one army chief to another. Only now the chickens are coming home to roost. Pakistan can know no peace unless the army does what it is supposed to do instead of doing that for which it is wholly unfit.
Terrorism will flourish as long as the military rules the country and as long as the military remains shackled to American interests. Just as Iraq was not a hotbed of terrorism before but thanks to the American invasion and occupation has become a seething cauldron of violence, our tribal areas were peaceful and no soldiers had ever to be stationed in their difficult terrain. Now thanks to American dictation, the army has been pushed to performing tasks that left to itself it would never have taken up.
Any decision of the Supreme Court’s will not bring an end to these follies. But the empowering of the judiciary if Justice Iftikhar is restored will ensure some small counterweight to military adventurism. This is an outcome devoutly to be wished for.
http://www.dawn.com/weekly/ayaz/ayaz.htm