WHY CHIEF JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY MUST BE RESOTRED

By Shahab Usto



[This article first appeared in Dawn on April 19, 2008.]



A cantankerous debate is going on among politicians, analysts, lawyers and ordinary folk as to whether the future of an independent judiciary is contingent upon the restoration of the deposed judges, including the ‘maverick’ chief justice, Mr Iftikhar Chaudhry.



The sceptics, if not the opponents, of the restoration question the judges’ credentials as custodians of the Constitution, given their being sworn in under the PCO and their adherence to an extra-constitutional framework imposed by a military dictator.



They also refer to a long list of incidents featuring the miscarriage of justice at the hands of partisan judges, starting with Zulfikar Ali Bhutto’s ‘judicial murder’, Benazir Bhutto’s persecution, Asif Zardari’s long incarceration and the ‘perfidy’ of Justice Sajjad Ali Shah which led to the dismissal of the last PPP government. Therefore, this time round they say they don’t want to take chances with individuals and would rather bring in institutional reforms to strengthen the judiciary.



It is also pointed out that, except for his conviction in the hijacking case, Nawaz Sharif has, by and large, received political benefits from the judiciary, be it in the form of the restoration of his government by Justice Nasim Hasan Shah, the successful showdown with Justice Sajjad Ali Shah or the recent judgment by the deposed judges in the Nawaz Sharif case allowing him to return to Pakistan in the teeth of opposition by a pro-military government.



The proponents of the judiciary’s restoration, however, attribute much of the current democratic spirit to the judges’ ‘valour’ and ‘leadership’. They also cite the sizable pro-judges’ mandate received particularly by the PML-N from central Punjab, an area which matters a great deal in politics, economy and the recruitment of the army.



Looking at the divergence of views among political parties, one feels jittery about the future of the judiciary and the success of the coalition government in dealing with a plethora of political, economic and constitutional problems which require, inter alia, a robust judiciary to administer justice to the people as well as to the centre and provinces.



True, elections have set the course of democracy. But historically, elections alone have never removed injustice from society. The elected Roman senate treated non-Romans as second-class citizens, the elected Nazi government persecuted the non-conformists, and the tenets of Apartheid and Zionism have also been followed by the ‘elected’ governments.



Nor does constitutional rule ensure fundamental rights, unless of course judicial recourse is available to the citizens. Take the example of the US. The Fourteenth Amendment to the US constitution had long guaranteed ‘equality before law’, but an American student of African origin had to wait until 1954 when the US Supreme Court in Brown v Education Board finally declared ‘racial segregation in school to be unconstitutional’.



And how does a robust judiciary come into being? When the citizens remain vigilant and assert their democratic rights. Behind the supreme court’s decision in Brown v Education Board was a powerful civil rights movement which aimed at ending racial discrimination in the US



However, that does not mean that judges should always look to the gallery before giving important judgments. Their individual courage and fairness are also factors. A lone judge sometimes changes the course of history by giving a seminal judgment.



Sir Edward Coke, the chief justice of the Court of Common Pleas (1606-1616), struck a mortal blow to the jurisprudence of ‘divine right’ by ruling that ‘the common law is supreme law, even when the Crown disagrees’.



As a rule, judges are barred from interfering in the political affairs of governance. In fact, they need the government’s aid to enforce judgments. President Andrew Jackson famously taunted the US chief justice: “John Marshall had made his decision, now let him enforce it.”



However, under extraordinary circumstances, judges do transcend their arbiter/interpreter role and use the constitution as a means of achieving higher political and jurisprudential objectives. When the US was threatened with a civil war, the same John Marshall ‘saw the constitution as an instrument of national unity and federal power’.



Unfortunately, before these judges emerged on the scene Pakistan had never had judges interpreting the constitution for higher objectives. They blindly followed the dictators, notwithstanding recurring martial laws, civil commotions, emergencies and international conflicts.



It was for the first time that the deposed judges led by Chief Justice Iftikhar Chaudhry broke this tradition and dared to look beyond the window. And what they saw outside was by no means business as usual.



They saw protests against the violation of constitutional rights in the name of the war on terror; families petitioning for the recovery of their ‘missing’ relations; lawyers and civil society striving to stop the ‘hasty and improper’ sale of the ‘family silver’; the media unfolding numerous scandals of corruption; common men being reduced to a state of utter helplessness at the hands of inflation, unemployment, violence and crime; and the country at large tightly bound by the shackles of a powerful feudal-industrial-military combine.



It was under these extraordinary circumstances that the judges decided to perform their constitutional duty, namely, render justice to the people wronged by the general-led government. Naturally, their style and utterances caused a flutter in the power corridor. But their actions were well-directed and well-meaning, hence they received universal acclaim.



Seen against this backdrop, it would be wrong to presume that the judges had their political agendas to pursue. In fact, they would have never faced the steel mills or ‘missing’ persons’ cases, had there been a democratic government in power.



And suppose they had followed the tradition of kowtowing to the government like most of their predecessors, where would the hordes of helpless peasants, persecuted minorities, exploited women, victimised politicians and ‘missing’ persons’ families have gone to seek relief?



Who has benefited from their showdown with a powerful general? Obviously, the judiciary, democracy and the incumbent politicians. And who faced the wrath of the establishment? The judges, their families and numerous lawyers/civil society/the media. The rest were either sitting on the fence or operating on the fringes.



Now as a new ‘era’ of constitutional rule is about to set in, it would be a betrayal on the part of the ruling coalition to ignore the sacrifices and plight of the deposed judges. They deserve not only honourable restoration but their due role in the process of judicial reforms.



Let posterity remember them among those who helped the judiciary have its tryst with destiny so that finally an era of justice and fairplay could be ushered in — an era long promised by the founding father, yet eluding many a generation. [Courtesy Dawn]

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PACKAGING A WEAKENED RESOLVE

By Ayesha T. Haq



[The writer is a corporate lawyer, host of a weekly talk show on satellite television and a freelance columnist. This article first appeared in The News International on April 27, 2008]



According to the commitment made to the nation by the Pakistan People"s Party and the Pakistan Muslim League-Nawaz in Bhurban on March 9, the November 2, 2007 judiciary will be back in their courts by April 30 -- three days away -- or will they? At the time of writing this article there appears to be no agreement on the resolution. The committee constituted by the PPP and PML-N has for some unfathomable reason been holding closed door meetings. At the end of each meeting, and there have been at least half a dozen so far, the story is the same, there is complete accord and the nation will get good news soon. The nation, in desperate need of not just good news but delivery on governance issues, is increasingly wary of the unwillingness of these two political parties to conclude this matter. There are so many issues that need to be dealt with on an urgent basis and we are stuck on the simplest of them all. Simplest in that the mandate to resolve it is there, the method is clear and the promise to do so was unequivocal.



Why is it then that these political parties are finding it so difficult to deliver on their first promise? The all too obvious disrespect for a judiciary that has for the first time in this country"s 60-year history refused to bow to a military dictate is not just shocking it is puzzling. Are they afraid that this new-found independence will not bow to the new civilian dictate? Is this why there is no empathy for the criminal detention of those judges and their families who stood firm against a dictator? Today we have a judiciary that has done the right thing. And what does our new elected government seek to do? Rather than respect the birth of an institution it appears the intention is to victimise it.



To prevent independence from taking root it has come up with the brilliant notion of having a controlled rather than an independent judiciary. Politicians who have spent years in jail or exile should welcome rather than fear a system that will provide justice. Of course there are those not willing to take their chances on truth and justice but would rather go the Pakistani way and depend on the NRO.



In that case what hope is there for the mother who lost two of her minor daughters, six-year-old Samra and eight-year-old Sama, to gunmen as they walked home from school in Lyari? Or for 11-year-old Mohammed Salman killed by a bullet in the chest during the commission of a street crime in Karachi"s Surjani Town. Or eight-year-old Iqra who was kidnapped, raped and murdered, whose tiny body was chopped in to pieces so as to be disposed of. Or the many faceless victims of Vani, Karo Kari, religious bigotry and sectarian violence who just fall through the cracks in the system. Or the victims of corruption like the children who die as a result of drinking high cyanide content water, or water mixed with sewerage. Is this lack of empathy the reason why what we call the system is riddled with cracks?



And as a nation are we so desensitized that we don"t find the need to address all these and many other injustices. What would you do if you were at the receiving end? Where would you go for redress? If our system is based on the notion of power, privilege and influence what happens when you run up against someone who is more powerful, more privileged and more influential? Where do you turn and is it too late for you at that time?



No one is fooled by the delay and its implications. As the clock ticks we see images of the president and prime minister evolve from frosty to perfectly cordial. It"s all smiles these days and it appears that the president has much to smile about. The nation sacked him on February 18 but rather foolishly, even naively, relied on their elected representative to make sure he left the building. Unfortunately our elected representatives have done what they do best which is to act in their selfinterest as opposed to the interest of those who elected them.



Tragically for the democratic process punishment is being meted out to the judges rather than the military dictator whose illegal acts saw the destruction of institutions, the brutalization and arbitrary imprisonment of thousands of lawyers and activists. Which brings us back to the promise made on March 9 in Bhurban. The political parties now hugely engaged in collaborative politics are messing around with the psyche of the nation and need to come clean and tell us that despite having our mandate they are not willing to deliver on their first promise to put the deposed judges back in their courts.



Given the nature of the political game they are playing, why should we imagine that they will deliver on anything? Like wheat and other essentials at affordable prices, jobs for the unemployed, security for all citizens, education for all, a health care system that works and all those most basic rights enshrined in the Constitution. By putting a spin on what should have been a fairly straightforward action they have not fooled anyone, rather they have further increased the trust deficit. Despite all the rhetoric it shows a complete lack of will to deliver on the many promises made.



Restoration of the judges coupled with a constitutional package that seeks to undermine the independence of the judiciary will be as dark an action as that taken on November 3 by General Musharraf. Judicial control packaged as judicial reform will not wash. Our politicians may have wiped the slate clean with the NRO, but if we are to have any kind of future, then we don"t just need, we demand an independent judiciary so that we never have to enact another NRO. [Courtesy The News]

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COUNTDOWN ON THE TRAITORS

Dr. Khalil Ahmad



Immediately after her assassination, a much respected senior journalist, Shaheen Sehbai, wrote a sort of obituary for Benazir Bhuto. He recalled one of the numerous sessions he and his friend, Masood Haider of Dawn, had together with Benazir Bhutto. He disclosed once she asked how she could correct the perception created about her that she was corrupt. And prompt was Masood’s reply: Divorce Asif Ali Zardari. She took that without a whiff of protest but then asked them to accompany her to the JFK Airport as she was leaving and wanted to talk more. They did and she argued all the way why Masood was wrong.



Now as Asif Ali Zardari has inherited PPP, contested an election and has formed governments both in center and provinces his PPP acting as the leading party, it seems that Mr. Masood Haider was dead wrong, and Benazir Bhutto was absolutely correct. Asif Ali Zardari is proving to be a true disciple of hers, and following in her very steps. Imagine if Benazir Bhutto were alive, how she would behave in the matter of judges’ restoration. That requires no great talents to predict her overtures from her death till now, since it just needs to stretch her approach a bit on the issue of deposed judges and their restoration. Asif Ali Zardari is doing what she would be doing without an iota difference.



But how to reconcile the posture of Asif Ali Zardari, that brought him on the political scene of Pakistan as a statesman of note especially after the February 18 elections, with his present position? He was everywhere wherever he should have been and won the goodwill and support of those whom he had taken as his enemies. His conciliatory approach earned him accolades from many quarters and people started believing he was a changed man, that he was no more a man whom Benazir Bhutto was advised to divorce. Though there were streaks of doubts looming over his politics, his overall image was rather an envious one when he appeared with PML (N) leader Nawaz Sharif and signed the Bhurban Declaration before the media that demonstrated his determination to restore the judges.



Probably around this time there were various news items that purported to re-write his image as a considerate leader also. One such news talked of his personal letter to one of his neighbors in Islamabad in which he apologized for being a nuisance for them as security measures and hectic movement of dignitaries was disturbing their routine life. In Pakistan’s context, how appreciable is this point is evident from the blockages of thoroughfares for hours to secure safe movement of VVIPs.



But then the tide started turning. Or things became visible as they came up on the surface. Even before the Bhurban Declaration how arrogant was Shah Mahmood Qureshi’s attitude in a talk show when he was put a question on the issue of restoration of the judges: We have just sworn in the government and you think we have nothing else to do? We will see to it when we establish ourselves, was his answer. Then, Asif Ali Zardari himself developed an impulsive dislike for the countdown, and publicly ridiculed it and those who kept the count as well. Wasn’t it quite natural to start counting the 30 days whether left or passed after the signing of the Declaration? No one bothered him with that. Perhaps, he was quite personal about it.



Now as just a few days are left to finish the countdown and all the signals from PPP are negative, it is almost clear that judges are not going to be restored within the 30 days limit. Also, there appears to be some vacillation in the commitment of PML (N) also as one of its federal ministers is speaking the language of Asif Ali Zardari that the countdown should start from the day provincial governments came to be formed. Moreover, it will amount to not restoring the deposed judges if after restoring them through some “constitutional package” the tenure of Chief Justice Iftikhar Muhammad Chaudhry is reduced and in the name of an independent judiciary the Supreme Court is rendered inactive and dependent, i.e. totally ineffective.



How unfortunate it is for the millions of ordinary people of this country that even after 60 years they are not allowed to live under an active and independent judiciary. They are being denied justice, their fundamental constitutional rights and rule of law for which the lawyers and the civil society have been constantly struggling for more than a whole year.



How callous it is for the political leaders and elected representatives of this country that the man whom we should worship like our greatest hero is being taken as the most controversial figure in Pakistan; and how treacherous, on the other hand, it is for them that the greatest criminal is being treated as the greatest asset of this country. This is just unacceptable and acting like traitors to the cause of the people of this country.



No doubt, the people of this country who have been craving for justice and their fundamental rights for themselves and their near and dear ones own a big heart. They may pardon the generals, political and religious leaders, civil and military bureaucrats, and others who looted their tax money to the tune of billions of rupees, but they will never forgive those who will again strengthen the establishment, and will not let there be judiciary which is always ready to listen to the call of those who have no voice in the corridors of power and are humiliated everywhere in their own country.



Certainly, it proves that the greatest enemy of the state of Pakistan and the elites which rule it as their inherited estate is an active and independent judiciary. Be it military or bureaucracy, political or religious leadership, and their beneficiaries, they all are one in not letting the Chief Justice Iftikhar Muhammad Chaudhry and other judges of the Supreme Court and High Courts restored. These elites are in dark, in fact. Particularly, it is for Asif Ali Zardari to realize that one never needs to be uniformed to think and behave like a general; it is his soul, his values and his integrity that makes him a General Musharraf or a General Zardari.



These uniformed and un-uniformed generals do not know if they do not restore the judiciary as it was on November 2, 2007, they are doomed. That is why they don’t like the countdown for the restoration of the judiciary. If they restore the judiciary, their countdown will be hastened. If they don’t, it is delayed a bit. In both cases, their countdown has already begun. It’s a matter of time only.

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Issue of the Month: Strengthening the Establishment PPP Style



FEW QUESTIONS FOR MR ASAF ZARDARI AND PRIME MINISTER GEELANI

[Dr Ghulam F Dogar]



I am an ordinary Pakistani and have no access to political leadership in Pakistan. It is through all of you, I hope to get access to Pakistan's political leadership in particular to Co-Chairman Asaf Ali Zardari and Prime Minister of Pakistan honourable Yousaf Raza Gilani.



I merely want to ask them few questions, only if they care to consider and answer. I will be very grateful and obliged for your favour.



Recently Mr Zaradari has rightfully expressed his opinion regarding suspended judges. He is absolutely right when he mentions that stand of Judges has never been about democracy, and that none of judges considered his petition of bail while he was in jail........as they were under pressure from General Pervaiz Musharraf. I am absolutely behind him. But my questions are



1) Why the person who was putting them under pressure is acceptable and allowed to sit in Army House in the chair of President.



2) It is obvious what damage General Zia ul Haq did to nation of Pakistan. We are not get out of evil effects after so many years. It is also obvious the damage, this thing what we know by the name of "General Pervaiz Musharraf" and his two stooges namely, Sharif Ud Din

Peerzada and Malik Abdul Qayyum Attorney General of Pakistan, have done to whatever rule of law and constitution was left in Pakistan.



Probably damage inflicted by the precedents and examples they have set is going to be even more than Zial ul Haq and God forgive, we may suffer generations to come. Then why



a) Malik Abdul Qayyum, in spite of the fact while serving as judge in High court gave judgements against Mr Zardari and Shaheed Benazir Bhutto under pressure from officials and even was caught on tape............is still Attorney General of Pakistan and being acceptable for the job by PPP leadership.



b) Why Sharif Ud Din Peerzada is availing all facilities and enjoying status of advisor to Prime Minister?



3) Were not the politicians in the parliament who endorsed all the actions of past dictators? Are not most if not all the politicians allies of ruling coalition and is not PPP in negotiation with rest of them who have acted as right hand of dictators? If they are acceptable and can be forgiven.........can the judges not forgiven of their mistakes???



4) For how long politicians and political leadership will keep on providing safe passage to dictators? Have they not done for Ayub Khan, Yahya Khan, gave immunity to Zial ul Haq by endorsing his actions and now to Pervaiz Musharraf. If dictators can hang elected Prime Minister or take over government and send second elected Prime Minister in exile...........why can't political leadership bring dictator to court? Instead of giving safe passages and soft talks (quoting recent comments by honorable Prime Minister has said after dinner with military officials), why Pervaiz Musharraf is still occupying chair of Pesident of Pakistan with all the powers, instead of being in Jail and facing court for his crimes against constitution and state of Pakistan?



If Perzvaiz Musharraf's actions are justifiable, Malik Abudl Qayyum can be forgiven, Sharif Ud Din Peerzada is allowed to continue to provide his service, wisdom, knowledge, tricks and Magic, blind eye can be turned against politicians, Sharif brothers can enter into Brotherhood bond and MQM can be invited in coalition, I am sure suspended judges of courts can be given a chance.



I hope, with kind help from all of you, I might be able to convey my message to Prime Minister of Pakistan and Political leadership of Pakistan as ordinary hard working citizen of Pakistan.

God Bless Pakistan

Regards.