By Ayesha Siddiqa

Did the movement bring a fundamental change in the state and the society and the relationship between the two?

The protests, rallies and demonstrations by the legal community from 2007 to 2009 took everyone in and outside Pakistan by surprise. People were impressed with the perseverance of the lawyer's from around the country in the face of a military dictator and in forcing a political government to ensure that the chief justice of the Supreme Court Iftikhar Muhammad Chaudhry was restored. However, it is worth asking whether the movement brought some fundamental change in the state and society and the relationship between the two?

The above question cannot be answered without retrospectively, though briefly, looking at this event in history that got labeled as a movement. There are scholars who did not consider this as a movement even then. It did not qualify as a movement, perhaps, in comparison to what Pakistan witnessed during the late 1960s when the under-privileged people from all walks of life came together to protest Ayub Khan's military dictatorship. The movement of the 1960s included the farm labor, factory worker, students, and people like the small-time chaiwala who were willing to sacrifice their meager earnings for long-term political benefits.

On the other hand, the political action spearheaded by the legal community, in which others such as the media, civil society and ex-servicemen and some other groups took part, had an urban and middle class character. A lot of them such as some members of the ex-servicemen association had immense dislike for Musharraf (but not necessarily the military). This was then an event where personal interests and biases got compounded with a cause.

The real dispossessed Pakistani did not come out on the streets for two reasons. First, the lawyer's protest did not until the very end establish any link between security of the judiciary and empowerment of the legal community, and socioeconomic uplift in the country. The economic explanation for a free and fair judiciary was a point raised in Aitzaz Ahsan's speech at the end of the long march but it had the impact of being too little too late. Second, the legal community failed to convince the general public of their earnestness to improve the fate of the common man who sees that lawyers and the judicial system as much a part of overall elite exploitation. A visit to the katchaihrey in any big or small town bears witness to the might of a system that exploits people. The black coats were not able to distance themselves from the image of the exploiter that they become in their own sphere.

Thus, the entire notion of the lawyer's protest representing the strengthening of the society versus the state requires a serious reassessment. Surely, the idea is not to take away the achievements of that time as it was the first fairly massive right-wing movement after the PNA movement against Bhutto in the late 1970s. The decade of the 70s marks not only the relative and systematic weakening of the left in Pakistan but also the gradual strengthening of the right-wing. The bulk of the legal community, the mainstream media and key civil society groups may have differing views on the use of religious ideology in state politics, but these are fairly centrist or right of center forces. An urban-middle class setting means a natural inclination towards the state as a symbol of power that must be controlled for furthering of personal interests. The legal community, in any case, as is very obvious from Stanley Kochanek's work on power groups in Pakistan, is inclined towards the establishment from the early years after independence.

It can be concluded from the socio-political nature of the legal community and its behavior after the end of the 2007-2009 protest that a strengthening of the system of justice for the benefit of the common man was certainly not the core purpose. It was a means to an end denoted by the empowerment of the legal community, building up of its nuisance value and membership as a secondary partner of the powerful establishment. The lawyers in general did not demonstrate a willingness to apply the rule of law principle to themselves. For instance, in one particular case in which a lawyer tortured his 12 years old Christian house maid to death, the lawyers in general were forced not to represent the victim's family. Similarly, lawyers resorted to physical abuse of those with opposing views and gross misconduct in the premises of the superior courts. Some of the starts of the protest also benefited by building up their personal fortunes as people were attracted to them due to their close connection with the chief justice during the lawyer's movement. Thus, perceptions built during the protests were of great value.

The legal community-media partnership, in fact, worked out to be a great combination that created new heroes and pitched the two communities as ultimate beneficiaries of the political struggle. This is not to suggest that the struggle did not bring any change in the country. However, it did not necessarily denote a transformation of the mindset and change the overall system of governance as there was hardly any introspection by the legal community of its attitudes.

Referring to the ideological bent of the protest, it indicated a further step towards strengthening of the right wing. As a matter of fact, some of the lawyer's used their newly acquired nuisance value to exhibit their ideological power as was obvious from the trial of Mumtaz Qadri for the murder of Salmaan Taseer. The middle class traders from Islamabad and Rawalpindi, who were also on the forefront during the lawyer's protest, were there on Qadri's side as well along with hundreds of lawyers.

Religiosity and militant-nationalism are two of the key traits that have evolved amongst Pakistan's middle class in the past couple of decades. This is laced with authoritarian tendencies and inclination towards strengthening of kleptocracy. As the dust settles on the 'lawyer's movement' we will realize that it ultimately resulted in further solidification of the establishment. The military, for one, is no less out of business than it was before November 2007.

Source: The Friday Times: Pakistan's First Independent 20120323 Paper

By Yasser Latif Hamdani

Independence of judiciary cannot be achieved by protest marches and burning buildings as we naively thought five years ago. It requires a systemic change in the state's self identification as well as in society

A frightening rumour - which was confirmed by a source that at least this author considers quite reliable - is making rounds in legal circles of Lahore. A nominee for the post of a High Court judge who it is said is otherwise known for his financial probity and legal competence has been turned down after the "intelligence agencies" vetted him and found him to be a "non-believer".

Besides the obvious question of discrimination ie are non-believers barred from becoming judges of the high court which is not the subject of this article, the real question is, how can a judiciary that has to be vetted by the "intelligence" agencies be independent? What, may one dare to ask, constitutional or legal role do agencies have in determining the credentials of judiciary? Does it not amount to executive interference into judicial matters and therefore a violation of the principle of separation of powers that is said to be central plank of our system of government?

A mirage was created by the Lawyers Movement five years ago and we -optimists about this country's bright future - have been travelling in wilderness since. We were led to believe that once the judges are restored there would be an impartial and independent judiciary that would stand for rule of law and equality of all citizens. Given the complex power structure and the influence the deep state enjoys in this power structure, an independent judiciary is an impossible undertaking. The role of the judiciary in any civilized democracy is to safeguard the rights of the weak and marginalized sections of society - who have been kept weak and marginalized by the deep state in the first place. To expect justice, equity and impartiality from such a judiciary is to fool ourselves.

So what is the report card of our so called independent judiciary? It makes for sober reading indeed. With two exceptions ie the PCO Judges case and the ongoing Asghar Khan petition, many believe that the judiciary has proved itself to be more conservative than expected. Here one does not even need to revisit the NRO case which was mishandled on all sides - or any of the ongoing political cases -since all of them are highly contested. The legislature, executive and the judiciary blame one another for undue infringement on their respective constitutional jurisdictions.

In terms of civil liberties and rights of the people, the present judiciary has to do more to show Pakistanis that it is the protector of citizen rights irrespective of religion and creed. The Supreme Court has practised what at best can be termed selective judicial activism. No suo motu notices have been forthcoming on many issues that plague the country. In August 2009, when the Christian minority in Gojra witnessed one of the worst pogroms in the country's history, the Supreme Court's silence was deafening. When in May 2010, 95 worshippers belonging to a "minority" community were slaughtered during Juma Prayer, the Supreme Court failed to act. It was the same story all over again when this forced minority community faced repeated instances of discrimination and outright persecution in educational institutions and when their places of worship were closed down. Shias are hounded and killed almost every other day. Hindu women are abducted routinely and forcibly converted to Islam. It seems that unless you are a male, Sunni Muslim, your constitutional rights are not a priority in Pakistan.

Sadly, there is also a perception that the superior judiciary has been a proactive guardian of the civil rights of accused whose cases should have received more scrutiny. In the now notorious Mukhtaran Mai judgment, the Supreme Court ruled 2 to 1 to acquit alleged rapists overturning established jurisprudence and setting a new standard of evidence for divorced women seeking to prove that they were indeed raped. In doing so, the honourable judges of the Supreme Court reinforced the already heavily male dominated society's prejudices against women. Maulana Abdul Aziz of the Lal Masjid, who was a main character in an open armed rebellion against the state, was also released by the apex court. Meanwhile banned organizations continue to hold rallies in the name of the defence of Pakistan. Such lawlessness thrives while the judiciary turns the other cheek.

In May, 2010 a staunchly independent Justice Ejaz Chaudhry of the Lahore High Court, who has since been elevated to the highest court of the land, banned Facebook for two weeks. This ban further emboldened the regulator of telecommunications industry to keep browsing services on certain smart phones banned for more than one and a half years, violating the constitutionally guaranteed right to freedom of expression.

For the sake of fairness it is important to state here that not all is bleak. Thankfully there are still those amongst the judiciary, even if few and far between, who are possessed of reason and commonsense.

Unfortunately the present system shows no signs of change until and unless competent people of all shades of opinion are allowed to be elevated without being vetted by the intelligence agencies for their personal views. The right-wards tilt of the deep state which is heavily dependent on extremists as instruments of coercive state policy ensures that most reasonable people would be excluded from superior judiciary for times to come. Even if one or two fall through the filters, they would remain marginalized and helpless. So long as that happens, the judiciary and other unelected institutions of the country will continue to support each other as guardians of the deep state and its outdated ideology that is drifting Pakistan towards disaster.

Independence of judiciary therefore cannot be achieved by protest marches and burning buildings as we naively thought five years ago. It requires a systemic change in the state's self identification as well as in society. Both these things are unlikely to happen in our lifetimes.

Source: The Friday Times: Pakistan's First Independent 20120323 Paper

By Shahzad Raza


General Pervez Musharraf was probably unaware of the tragedy of Julius Caesar and the Shakespearean cliche of the ides of March. Even if he wasn't, he chose to make a quick kill in March 2007. The general thought removing Chief Justice Iftikhar Muhammad Chaudhry would be as easy and simple as to fire his kitchen staff. He was wrong.

That one bad decision shook the very foundation of his authoritarian rule. It was the beginning of a movement that led to his downfall and the rise of the black coats and the black robes.

By now, hardly anyone remembers or would like to remember that Chief Justice Iftikhar Chaudhry was a member of the bench that validated the Musharraf-led military takeover in October 1999. He was also among the judges who took a new oath under Musharraf's Provisional Constitution Order.

But this event cannot be looked at in isolation. There was a chain of events that led to the fateful meeting between President Musharraf and Chief Justice Chaudhry on March 9, 2007. In fact, the general was contemplating discarding a reference against the chief justice five days before he was forced to resign.

Lt Gen (r) Hamid Javed, who took notes of Musharraf's meetings as his chief of staff, says Chaudhry's removal was not a spur of the moment decision. The chief justice had not been summoned to the Camp Office, he said, but asked to meet the president two days prior to the March 9 meeting.

Lawyers from all over the country began protests against Musharraf's decision to sack the chief justice, and his handpicked government certainly underestimated the public anger. Intentionally or unintentionally, they were oblivious to the writing on the wall.

"It is a wrong notion that Gen Musharraf was worried about his own case (simultaneously holding two offices of the president and the army chief) pending before the Supreme Court," Gen (r) Hamid Javed said. "In fact he took bad advice from some hawks in the government and got carried away."

Then prime minister Shaukat Aziz was among those who were complaining against the chief justice, especially after an adverse court decision in the Pakistan Steel Mills (PSM) case. The apex court had turned down the government's decision to privatize PSM because of lack of transparency. The presidency was shocked at the decision too. Musharraf and his aides were looking for a favorable verdict after a meeting between the president and the chief justice on the issue. It had been decided in the meeting that the Supreme Court would act against any corruption in the deal, but would not stop the privatization of the steel mill. Although Musharraf was surprised by the verdict, he decided to avoid a possible confrontation with the chief justice.

According to Gen Hamid Javed, the presidency received the reference against the chief justice two weeks before it was shown to him on March 9, 2007. "I read and examined the reference, but there was nothing important and concrete against the chief justice in it. The federal government had failed to build a solid case against him. I wanted to let the president know how week the reference was," he said.

On March 4, 2007, he says, he spent an hour persuading Musharraf that any further action on the reference would backfire. The president agreed and said he would not forward it to the Supreme Judicial Council.

Before his encounter with the chief justice, Musharraf met his cabinet to make a final decision. To Gen (r) Hamid Javed's disappointment, the hawks prevailed. The cabinet decided to get rid of the chief justice as soon as possible.

On March 7, the chief justice had asked to meet the president so he would invite him for tea at his residence, according to Gen Javed. Musharraf thought it would be an appropriate occasion to talk to the judge about the reference against him.

It was Friday, and Gen Musharraf had to be in Karachi in the afternoon. He mentioned the allegations at the outset of the meeting, followed by strong denials from the chief justice. Musharraf did not want to stretch himself any further. He left director generals of the Inter-Services Intelligence, Military Intelligence and Intelligence Bureau to deal with the chief justice and flew to Karachi. What happened at the Camp Office behind him changed the course of Pakistan's history.

Shahzad Raza is TFT special correspondent based in Islamabad. He can be reached at s79r@hotmail.com

Dr A Q Khan
Monday, April 02, 2012

According to national and international reports, corruption is highest in the police and the lower levels of the judiciary. Thanks to the laxity of the lower courts, ordinary cases drag on for years, often until the complainants have passed away. There is no justice for the poor. Many crimes are recorded but still these cases drag on. Considering all this, one is reminded of the quick justice that used to be provided to the needy by a few qazis at a cost of no more than their meager salaries and a room, with a carpet to sit on.

A qazi, or munif, is a person ruling in accordance with the Sharia. He is appointed by the ruler. Since Islam does not differentiate between the religious and the secular, qazis traditionally had jurisdiction over all legal matters. His judgements were based on the Quran and Sunnah. This system was started during the lifetime of our Holy Prophet (PBUH) and continued in all Islamic countries until a few decades ago. In those days, Muftis and Fuqaha elucidated the principles of jurisprudence and laws and the qazi ensured that justice was done accordingly. In order to assist the qazi in enforcing his judgements, some Muslim rulers provided a small force (Shurtas), who had wide powers and nobody could disobey them.

The Abbasid Caliphs introduced the office of Qazi-al-Qazzat (chief qazi). He was not only advisor to the ruler but also kept an eye on the performance of the qazis. Besides judicial functions, the Qazi also administered religious endowments (awqaf), the execution of wills, the accreditation of witnesses, guardianship over orphans and supervision of enforcement of public morals.

The formal institution of qazi was established in 705 AD during the reign of the Umayyad Caliphs. By 750 AD religious laws were firmly defined for the qazi to follow. Essentially he was to be a Muslim, sane, not convicted of slander and educated in Islamic sciences. There was no exploitable system like nowadays and the qazi’s word was final. An institution known as “Muzalim” functioned like an appeal court to help parties settle their disputes. The shurtas enforced the decision of the qazi and were sometimes allowed to hear and decide criminal cases. The law-and-order situation during the reigns of Hazrat Umar (RA), Umar bin Abdul Aziz (RA), Caliph Harun-al-Rashid, Sultan Mahmood of Ghazni and Sultan Alauddin Khilji are golden chapters in Islamic history.

Hazrat Umar (RA) was the first to establish the office of qazi on a solid foundation. He defined qazis’ education, training and suitability in detail. His letter to the governor of Kufa, Abu Musa Ahsari, is detailed but brief and describes the functions of a qazi in providing justice to plaintiffs. During Hazrat Umar’s reign, Muslims ruled an area of about 500,000 square miles. The qazi system was such that there was never a whisper of the non-availability, or miscarriage, of justice and it was freely and instantly dispensed. (Please read Hazrat Umar’s judicial system in detail in “Al-Farooq” by Maulana Shibli Naumani.) There was hardly any burden on the state treasury. Most important of all, there were no cases left pending. A qazi-like system functions in China today. Justice is immediate and culprits are dealt with effectively and instantly. Saudi Arabia also has a highly efficient qazi system – no delays, no non-availability of justice and no favouritism!

Our present judicial system was introduced in 1861 with an Act to establish High Courts in Calcutta, Bombay and Madras, and, in 1866, in Lahore and Allahabad. There followed the appointment of session judges, magistrates, deputy commissioners, etc. The tail became a thousand times longer than the body itself, resulting in the present judicial mess. Judging by the functioning of this system, it is apparent that it is a total failure. The influential, the rich and those in authority manage to be cleared of all crimes or, after having served five or ten years in jail for corruption and bad governance, manage to get the highest posts. They openly ridicule and insult the superior judiciary and are not taken to task for doing so.

Those who embezzled millions are well able to pay lawyers of disrepute who drag cases on for years or see to it that their clients cleared of all charges. Taxpayers are paying billions to maintain the system and yet there is no law and order in the country, nor is fair and quick justice available to the common man. We have the examples of the Steel Mills, PIA, the Railways, NICL, the murder of two young boys in Sialkot, the murder of innocent foreigners in Kharotabad, kidnapping, torture and murder of innocent citizens by rogue intelligence agencies, the unlawful increases in gas, petroleum and electricity prices, the cancer of adulteration of edibles and medicines (especially life-saving drugs) and the open mockery and ridiculing of the superior courts before us. None of these issues have been dealt with in a stern manner. We, the older generation, witnessed British rule and how a Commissioner or a Deputy Commissioner kept law and order and provided quick justice. No cases were left pending and nobody dared ridicule the judiciary or disobey the law enforcing agencies.

Worst of all, punishment for Contempt of Court is just six months in jail. No wonder this is no deterrent – the looting can continue again afterwards. Contrast that to the punishment for other simple crimes.

• Bouncing of a cheque – three years with fine (Pakistan Penal Code 489-F).

• Disobedience to/obstruction of duty of a police officer – three years plus fine (152).

• Damaging a child’s milk tooth – one year (337-U[3]).

• Uprooting the hair of any part of the human body – three years (5).

• Theft of a motorcycle or scooter – seven years plus fine (381-A).

• Cheating – one year plus fine (415).

• Hurting, killing or maiming an animal of the value of ten rupees – two years plus fine (428).

• Damaging or removing land markers – one year (434).

• Commitment for trial or confinement by person having authority who knows that he/she is acting contrary to law – seven years plus fine (220)

Contrary to these crimes, contempt of court should be punishable by lengthy jail terms and disqualification from all public/private offices for life (and not six months in a bungalow with VVIP facilities). If the present system is maintained, and that too with laxity and delays, people will lose faith in the judiciary and we would be right in thinking that the old qazi system was a thousand times better than the current one, which is costing us billions of rupees every year.

Email: dr.a.quadeer.khan@gmail.com
The News

Ikram Sehgal
Thursday, April 05, 2012

A friend of mine who chooses to remain unnamed forwarded an SMS message making the rounds these day: “A question in the minds of every Pakistani to the chief justice of the Supreme Court is: is your task only to give sermons to the public?

Why has judgment not come in any high-profile cases? Steel Mills, PIA, Railways, HBL, BoP cases, NRO, Memogate, Mehrangate, missing persons, LPG, NLC, Babar Contempt, Gilani contempt, Shahbaz Sharif cases, Haj scandal, Karachi killings etc.? All cases are pending for unknown reasons! The nation is losing confidence in the judiciary. “Justice delayed is justice” denied, is that right?”

The aforementioned SMS is factually incorrect, the Supreme Court has given judgment in most of the cases, both comprehensive and unambiguous in terms of substance and content. And without any question one is proud of these judgments. What is agitating the public mind is that the implementation of those judgments is less than satisfactory. The present government has successfully filibustered and prevaricated to frustrate the Supreme Court’s diktat. As a result, both the superior judiciary and the army are rapidly losing their credibility in the perception of both the intelligentsia and the masses.

Will anything ever happen to “Raja Rental,” aka Pervez Ashraf? The NAB seems to have put some luminaries on the ECL more for public consumption and to muddy the waters, clubbing those clearly innocent with the absolutely guilty, dragging into the process outstanding citizens and entrepreneurs like Shaukat Tareen. Can anyone ever believe that this outstanding Pakistani, who gave us the nearly impossible NFC Award, has anything to do with RPP malfeasance? It is Shaukat Tareen who resisted the RPP idea tooth and nail.

The prime minister’s associates, “Sahib, Bibi, Betay aur Ghulam,” have been “mentioned in dispatches” in different cases of malfeasance and outright corruption. Vocal (but politically adrift) Awami Muslim League leader Shaikh Rashid says: “The rulers have made a mockery of court verdicts. Such examples were never seen in the past. The Prime Minister is a ‘habitual criminal,’ as he has spent jail terms in the past and once again ready to go for another.” Instead of being nervous or contrite at being possibly convicted for contempt of court, Gilani revels in being contemptuously defiant.

The Supreme Court’s failure to enforce its judgments reminds one of Joseph Stalin’s scornful response when told about the Pope’s anger because of the ruthless Stalinist suppression of dissent within Russia. “How many divisions does the Pope have?” While the Supreme Court should be able call on all the institutions of the state to its aid, including the instrument of last resort, the armed forces, for the implementation of its judgment, for whatever reason the khakis have been rendered “deaf, dumb and blind” to the ongoing wholesale loot and plunder. Was there a message conveyed to the Supreme Court not to expect any consideration under Article 190? How many divisions did the chief justice possess when he defied Gen Pervez Musharraf, who incidentally had quite a few?

The chief justice’s ouster force-multiplied the frustrations of the common man, along with the perceived corruption of the government. Mian Nawaz Sharif seized the moment to break the shackles imposed on democracy in March 2009, but the “long march” sputtered to an end at Gujranwala because of the famous telephone call from Kayani to Mian Sahib. What actually transpired remains a matter of conjecture. The army have only itself to blame for its present predicament as far as image is concerned, if they thought they would get gratitude for not allowing the PPP-led government to be toppled in March 2009 they were sadly mistaken.

There is enough in the memo scandal to indicate that our constitutional rulers have made common cause with our detractors in the whole world. The rank and file in uniform are paying a horrible price to sustain the perversion that goes in the name of democracy. Kayani’s conscience must prick when he sends to their deaths in fighting counter-insurgency while the rulers he salutes revel in their corrupt luxury, all in the name of upholding our Constitution.

MIT economist Daron Acemoglu and Harvard political scientist James A Robinson state in Why Nations Fail that “nations thrive when they develop ‘inclusive’ political and economic institutions, and they fail when those institutions become ‘extractive’ and concentrate power and opportunity in the hands of only a few. Commenting on the book, Thomas L. Friedman in a recent article argues that “the key difference between countries is “institutions”, unfortunately the institutions the govt is supposed to preserve have instead been systematically attacked to purposely erode the ability and the credibility of these institutions. Acemoglu and Robinson say, “Inclusive economic institutions are more conducive to economic growth than extractive economic institutions that are structured to extract resources from the many by the few.

Inclusive economic institutions, are in turn supported by, and support, inclusive political institutions, which distribute political power widely in a pluralistic manner and are able to achieve some amount of political centralisation so as to establish law and order, the foundations of secure property rights, and an inclusive market economy. Conversely, extractive political institutions that concentrate power in the hands of a few reinforce extractive economic institutions to hold power.” In utter contrast to the rest of the world feudalism has actually flourished and expanded in Pakistan after the British left, whoever says democracy can survive in a feudal system is a hypocrite.

Hopefully emerging leaders like Imran Khan should have learnt lessons from our horrible state of political and economic affairs. “You can’t get your economics right if you don’t get your politics right.” The many layers of local government were not conducive for either good governance and/or the effective distribution of funds. Only the actual users can decide the priority of their basic needs of education, medical facilities, water, sewerage, etc.

One believes Pakistan Tehrik-e-Insaf is working on a revolutionary modus operandi to ensure money meant for development is not siphoned off by intermediaries, the community directly receives funds to themselves build the necessary infrastructure. Development money will then be a force-multiplier to strengthen democracy at the grassroots level.

During this regime’s incumbency, Pakistan’s crises have multiplied and deepened manifold and on many fronts. Can the rule of law prevail when the chief executive of the state defies it at will, and is contemptuous about his defiance? While the army has been sacrificing their young men in Swat, Fata and countless other places, the civilian casualties in Balochistan, Gilgit, Karachi, etc., are frequently in the news for all the wrong reasons.

As fuel prices keep increasing and electricity gets scarcer (or non-existent), the summer will become longer and hotter, in all senses of the word. If the Supreme Court fails to act, the effort to rid the country of its problems will move to the streets of Pakistan. This will force the army to act, with the Supreme Court’s request under Article 190, or without it.

What this country really needs is leader-shedding, not loadshedding.

The writer is a defence and political analyst. Email: isehgal@pathfinder9.com
-The News

April 6, 2012
Asghar Ali Engineer

LAST month in Vienna there was a seminar on multiculturalism and religious pluralism. Among other issues a discussion was held on the concept of justice. What is justice, it was asked, and participants gave their opinions.

Among the participants were professors of philosophy, sociology, political science, as well as theologians and rights activists. It was an interesting discussion but there was no consensus as usual as to what justice is. I, too, gave my opinion and said that Plato had recorded for us the discussion Socrates had with his young disciples on justice and when no one could give a satisfactory definition, he (Socrates) concluded that justice is what the powerful think justice is and we have the famous saying ‘might is right’.

There has been no change till today in this definition of justice by Socrates as justice plays itself out on the world stage. Even in the 21st century it is the mighty who decide what justice is. America is the most powerful nation in the world today and if America decides justice lies in invading Iraq or Afghanistan, the whole world endorses it as a just action. Even the UN Security Council endorses it almost unanimously.

Some whimpers of protest are naturally ignored. Our modern and civilised world has not gone a centimetre ahead of the classical definition and yet justice seems to be a most important value in the world today. But do we then have to live with Socrates’ definition even today when we claim we have progressed so much? Weaker sections can only dream of getting justice; or will they ever get justice?

In Islam, justice is a most fundamental value; it connotes one of Allah’s names also. Allah’s name is Aadil (Just). The Quran repeatedly emphasises justice and even goes to the extent of saying justice is closest to piety (taqwa) and so “do justice”, it commands, as it is closest (aqrab) to piety. But many of our theologians think piety lies in offering prayers and fasting alone whether it results in just conduct or not. They say all Islamic laws are most just but then differ, like others, on the definition of justice.

Take for example, the question of justice and multiple wives. The Quran permits polygamy but verse 4:3 emphatically says, “If you fear you cannot do justice, then (marry) only one”. It is a different thing that for our jurists the number (four wives) is more important than justice which the Quran actually emphasises. Generally when a man takes more than one wife the only inquiry made is whether he has less than four wives and not whether he would be able to do justice between them.

Also, if at all inquiry on this line is made, the question arises what is just treatment amongst wives? Generally it is thought giving equal maintenance and allotting equal time to all wives constitutes ‘justice’. But there is no unanimity on this concept. The Mu’tazila theologians (who are considered rationalists) maintain that equal maintenance and equal time cannot constitute justice and going by verse 4:129 equal love is also necessary which is not humanly possible.

In doing justice, the context also plays a role. It could be social, political, economic and also depends on the kind of social structure one has. For example, in a tribal society equal retaliation is considered meeting justice. The Quran calls it qisas (retaliation in equal measure) and since Arab society was tribal in structure it declared al-hayat fi’al-qisas) i.e. life consists of retaliation (in equal measure). Many theologians ignore the context and declare it as an eternal principle of justice. If we ignore the context, justice may become injustice. Today, when human rights and dignity are of great importance, such tribal retaliation would be unjust.

We should not be under the impression that the Quran pronounces retaliation as an eternal principle of justice. Not at all. Many Islamic scholars assert that it was in the context of that tribal society, and as an accepted (ma’ruf) principle that the Quran had approved of it; otherwise it considered pardoning as a higher principle and instructed believers not to insist on qisas. Most Islamic countries have since abolished the law of retaliation and adopted other forms of punishment more in keeping with the principles of human dignity today. Thus it will be seen that context plays a very important role in dispensing justice.

It is for this reason that while principles and values remain unchanged, the law must constantly evolve so as to be as close to these eternal principles and values as possible. Many tribal societies of yore have changed into modern democratic societies today and so laws framed for tribal societies cannot remain static and if one insists, as many theologians often do, they will result in injustice violating the very fundamental principles of the Quran. And this is what is causing widespread gender injustice in many Muslim societies today.

Principles and values are much more fundamental than the laws framed in the past when the concept of justice was very different from what it is today. In the past weaker sections of society were treated very differently to meet the ends of justice but today it would be considered undignified and against the principle of human rights and human dignity. Today if we want to do gender justice many old laws will have to be re-examined as they have become unjust by today’s standards of justice.

Thus the concept of justice evolves with time, though the most powerful may think even today that what they believe is justice is, in fact, justice.

The writer is an Islamic scholar who also heads the Centre for Study of Society & Secularism, Mumbai.
-Dawn

Dr A Q Khan
Monday, April 09, 2012

In my column of April 2 I stressed the differences between the old Islamic judiciary system and the present one. Today I would like to further discuss this topic. While appreciating that it would not be feasible to enforce the old qazi system in toto, I do believe that if we used the spirit of this golden system, we could still apply it in present times to provide quick and cheap justice.

In one of my previous columns I had also mentioned the historic letter (advice) written by Hazrat Umar (RA) to Abu Musa Ashari (RA), governor of Kufa. It contained the golden principles of quick justice without fear or favour. I am reproducing the whole letter here.

1. “The duty of adjudication is a well-established and consistent practice in Islam that has been followed throughout the ages; therefore, try your best to understand with depth and wisdom whenever you are appointed as judge, on the basis of evidence and proof, and enforce the right, if it is established, because it is useless to talk about a right which is not enforceable.

2. “And make sure that you do full justice between the litigant parties, not only through your judgments, but also through your facial expressions and body language, so that an influential man never hopes for any kind of injustice from you, nor a powerless person need question you fairness, nor an enfeebled one gets hopeless about your justice.

3. “Remember that the burden of proof is always on the plaintiff and the complainant and the obligation of oath is upon the defendant and the respondent. Reconciliation is allowed between Muslims, provided it does not permit what is prohibited or prohibits what is permissible.

4. “Your earlier judgment should not deter you from reviewing it if you are guided to the right path by your senses and reason, because truth is eternal and it can never be abolished. And to revise decisions for the sake of upholding the truth is far better than persisting in something that is null and void (not correct).

5. “And you must be perceptive and judicious regarding whatever comes to your mind which is not revealed in the Holy Quran and the Sunnah. Then search for earlier, similar examples from the Quran and Sunnah.

6. “And compare your unprecedented thoughts and ideas with what you have discovered and then base your judgment upon what is closest to the guidance of the Almighty and nearest to the truth.

7. “And set a deadline for a complainant who is asking for a right and accept his claim if he/she manages to produce evidence. This will leave no room for any excuse.

8. “Muslims are equal before you as witnesses unless someone is convicted in a Hadd (adultery) case or proved guilty of fake testimony or is seen as serving the personal interest of a friend or relative. Almighty Allah takes responsibility of secrets and will relieve you of your responsibility if you decide a case on the basis of evidence and proof.

9. “And beware of showing anger, getting annoyed and upset, hurting people and shying away from deciding a case. Do not forget that adjudication with justice and truth will entitle you to some great reward from the Almighty in this world and the hereafter as the one who makes his intentions pure regarding what is between him and other human beings. But whoever presents himself falsely to others, pretending to be what he is not in Divine knowledge, then Allah will surely disgrace and dishonour him, because Allah never accepts any act from His servants except that which is done purely for Him.”

Hazrat Umar (RA) took extreme care in the selection of judges and those chosen were of the best character and most knowledgeable in the whole Islamic world. He also organised tests for them. Even though judges were appointed by the governors in their respective domains, Hazrat Umar (RA) still used to personally meet them and approve their appointments on the basis of their knowledge and experience. Besides, he also personally appeared before judges many times in disputes, in order to ascertain their competence and neutrality.

Our judicial system was established in 1919. It was modified in 1935 and again in 1945. As a layman, I am not aware of the details of those changes. I got my first taste of law in 1983 when a court in Amsterdam sentenced me to four years in jail in absentia. I was not aware of the court proceedings, nor had I been given a chance to defend myself. I was blamed for attempting to obtain so-called “classified” information from my colleague, which was, in fact, openly published information. I immediately contacted one of Pakistan’s most prominent lawyers and a former law minister, Mr S M Zafar and asked him to defend me.

There were some who tried to be wise and said that the government would never agree. I told them all that, come what may, I would do whatever it took to clear my name. Permission was given and I appointed two Dutch lawyers, Dr W Russells and Dr Den Drijver to assist Zafar Sahib. We won the case and the Dutch prosecutor general agreed that there was no substance in the accusations. In order to assist Zafar Sahib, I read through the Dutch Criminal Code and the international laws covering such cases.

I am fully aware of the fact that the old qazi system cannot be enforced in toto, but we can definitely adjust our judicial system to encompass the spirit of that golden age. Unfortunately, our current system is a legacy of the British. On April 12, 1936, Quaid-e-Azam said that the 1935 Act was worse than the Versailles Treaty, which had turned Germany into a subordinate state (resulting in the Second World War and the deaths of almost 55 million people). In his letter dated May 28, 1937, to the Quaid-e-Azam, Allama Iqbal had also criticised the 1935 Act.

In Britain the legal system functions well, but our disfigured system is not providing quick and fair justice to the people. The reason is that those who are supposed to obey the law are of a criminal mindset and make a mockery of the judiciary.

A word here about Maulana Fazalur Rahman and Maulana Shirani, chairman of the Islamic Ideology Council. Our Constitution states that no law will be against the Quran and Sunnah. Why then are they not doing or saying anything about Article 148 which gives protection to looters and the corrupt? They should remember what Allah has ordained in Surah Zarriat, Ayat 55: “Do, however, keep exhorting them (to do good), for exhortation benefits those endowed with faith.”

Email: dr.a.quadeer.khan@gmail.com
-The News

April 17, 2012
By Saeed Qureshi
Exclusive Article

Human beings cannot be perfect but they can excel in virtues and be embodiment of a thoroughly upright conduct. There is a perennial tussle going on between the generally acknowledged vices and virtues within a man. One can be repository of an exemplary character and vice versa one can be as sinister as a proverbial Satan.

Chief justice Iftikhar Muhammad Chaudhry is regarded as a shining symbol of uprightness and a true custodian of the supremacy of law. Cast in a mold of probity and with a soul aflame for truth and justice, he is waging a lone crusader’s war for a civil society. He is the beacon for a civil society, and for a pluralist and accountable democracy, where all should be equal before the law from prime minister even to a rape victim.

I find myself handicapped for want of appropriate plaudits and commendatory diction to befittingly portray the sublime personage of the incumbent Chief justice of Pakistan. The Honorable Iftikhar Muhammad Chaudhry, the 18th Chief Justice of Pakistan, is creating a glorious judicial history in a country like Pakistan that otherwise is beset with a pandemic of moral and legal aberrations.

Let us for the sake of contrast and comparison put Zardari and chief justice Chaudhry on two extremes then the former would be a custom made model of dark side of human beings and the other a magnificent monument of righteousness and absolute integrity. Chief Justice Iftikhar Chaudhry has been putting up a brave fight and upholding the finest tradition of an impeccable judiciary against formidable challenges that can be likened to the morning star appearing in a predawn phase of darkness.

There is long litany of stupendous cases that the incumbent chief justice has dealt with and did not dither while handing out a verdict that was outright in the public interests and was absolutely untainted. It could have been only a lion hearted person like him to be countenancing a crowd of hardened goons and ripened thugs and award them the verdicts and sentences that they deserved. In fact he is a man whose life is enriched with unselfish service.
He has been dispensing justice in a murky atmosphere of utter disregard for law, pathetic violation of the constitution and apathy to the mounting grave problems of the country by the leaders, the parliamentarians, the bureaucrats and minions of government departments.

It was a giant step towards rebuilding a civil society and bolstering the honor of Judiciary, when undeterred, he told on the face of a reckless and desperate dictator that he would fight out with him a judicial battle in case he was sacked. That was a turning milestone that inspired and emboldened the civil society, the lawyers, the intelligentsia, the students, the youth, and politicians to unfurl a sustained campaign that resulted in the ouster of the self-deluded dictator.

It is manifest all along the judicial journey of CJ Chaudhry that barring one or two minor occasions, he stood like a rock in face of visibly heavy odds and burgeoning pressures and rebuffed offer of perks and material enticements to be partisan. He sternly spurned all temptations that could detract or derail him from the chartered path of dignifying the institution of judiciary.

Chief justice is blessed with a dauntless perseverance, a piercing acumen, and unfaltering devotion to duty. By displaying an unimpeachable honesty and a dogged spirit, he has firmed up the rule of law and cornered the rogues.
Zardari was reluctant to reinstate Chaudhry Iftikhar fearing that the judge would repeal amnesty granted to him under the NRO by the ousted president Pervez Musharraf. It was under inexorable public pressure and the historic march from Lahore to Islamabad that the Prime Minister Gilani had to impromptu announce his reinstatement.

That refusal on the part of the PPP government to restore Chief justice Chaudhry to the promised position brought at par the ousted president Musharraf and the one who was his successor, Asif Ali Zardari.

A cursory glance at the cases disposed off or being heard by the apex court would lead to an utter amazement, as to how the chief justice has been braced against the crocodiles of corruption and retrieving the embezzled or looted money back to the national exchequer.

The judgments or the proceedings on several cases are watershed and would be written as historic in the judicial annals. Some of these gigantic cases are Pakistan Steel Mills privatization, rental power plants, missing person cases, Hajj scandal involving the elder son of Prime Minister Yusuf Raza Gilani and also his younger son in a 7 billion gas rip off.

Besides the Swiss Banks case, the Memogate case and several other gubernatorial cases would be the blazing land mark and eloquent testimony to the courage and abiding conviction of the chief justice for the ascendency of the justice system in Pakistan.

These mammoth cases too would go down in the judicial history of not only Pakistan but also that of the world at large as monumental. The constitution of Abbottabad Commission is yet another decision that speaks for the tenacity and steadfastness of the Chief justice for championing the paramount cause of a fearless and fair judiciary.

In a jungle of dacoits and burglars, CJ is the one glittering hope to drive out the betrayed Pakistani nation safe and unhurt, to shore up the sinking boat of good governance and to establish and restore the supremacy of law and glorify the contours of a civil society.

The lofty conduct of apex judiciary might become harbinger for a Pakistan where justice would not be manipulated in favor of rich and powerful, and where a common man would stand face to face with feudal lords in the court to seek justice as an equal citizen of Pakistan.

May be CJ’s example would serve as a trailblazer for other deliverers of justice. During the heat of the second world, the then British Prime Minister Winston Churchill remarked that “if our courts are working normally, then we have nothing to worry” (I do not remember the exact words). The same exquisite comment is so relevant to Pakistan as well.

The writer is a senior journalist and a former diplomat. He is also a regular contributor to pkarticleshub.com

By Saroop Ijaz
Published: May 5, 2012

As we wait for the other shoe to drop in the Prime Minister’s contempt proceedings there is continuing talk in elevated and high minded tones of ethics and how statesmen conduct themselves in mature democracies, etc. The gist of all of this is the rather plain notion that the Prime Minister should now resign from office on moral grounds. There is nothing inherently unreasonable in the demand if viewed in isolation; however, it should not and cannot be viewed in isolation.

The Chief Justice of Pakistan recently made the public statement that for hearing the appeal of the Prime Minister’s conviction, a larger bench has to be constituted and three judges of the Honourable Supreme Court have displayed the intention to recuse themselves necessitating the appointment of one regular and two adhoc judges to the Court. Again there would have been nothing wrong with this statement but for one minor problem, namely no appeal has been filed yet. Actually in the case of this particular statement it is not a minor problem but rather a fairly major one. Firstly, the anxiousness displayed by the Chief Justice to get everything in order before a detailed order has been made public and mentioning the need to appoint adhoc judges to hear the case, one might say — with caution — is unbecoming. Secondly, since no matter is pending before the Supreme Court the consultation or perhaps, more accurately the inquiry would have been made from judges who intend to recuse themselves outside of the court. Whereas some might take a favourable view of the Court and the Honourable Chief Justice working overtime, there is something that makes one uneasy.

Finally, there is the obvious and what one felt was already-decided question of adhoc judges. The practice of appointing retired judges to the bench on extension is a thoroughly graceless one and should be very strongly discouraged generally, and particularly, in cases such as the Prime Minister’s contempt appeal. The impression that the Chief Justice wants to handpick his loyalist judges, even if retired, to hear a matter where the Court is quite evidently one of the parties to the dispute might be completely untrue, but why give that impression in the first place? The Chief Justice, I believe, was aware of this and had to punctuate his statement with the apologetic yet robust assertion that he is constitutionally empowered to do so. The complete absence of any dissent on any of the constitutional cases is quite remarkable, even fantastically incredible. Not one judge in these four years has disagreed on a single point of law in a major constitutional case; this convergence of opinion should make us slightly wary. Hence, the sceptic might say that this fuss about number of judges etc is unnecessary since only one judge is all that is really required, the rest just have to sign the dotted line.

There are two possible explanations for this front of solidarity. Firstly, the Honourable Judges trust the wisdom of the Chief Justice uncritically with almost a military-like discipline (no innuendo intended) or perhaps, are too overawed or at the risk of crossing a red line are afraid of him. Tempting and dramatic as it is, I don’t think that explains the whole story. The second and more likely explanation is that the Supreme Court feels it has to present a united front if it has to tackle and defeat a government, which the Court quite evidently feels to be corrupt and incompetent and keeping in view the Memogate proceedings, ‘unpatriotic’. I am sure they are driven by the most noble of motivations yet ‘unbiased’ does not seem to be a usable word here.
One thing that our Supreme Court cannot be accused of is suffering from an excess of modesty. The desire to set everything right (excluding only ‘sensitive’ matters involving military high command) while being nominally laudable is almost without exception an extremely dangerous one. The lawyers’ movement and restoration has embedded a feeling of public representatives to the judiciary, a feeling that now has to be fought off. Protests in favour of the Supreme Court and vowing to stand behind it at every instance should be of concern. I agree the same concerns should have been raised and properly addressed during the lawyers’ movement; in any event they need to be addressed now. The lawyer community is not the foot soldiers of the judiciary and should not seek to be a part of every minor institutional balancing exercise.

I have a feeling many fellow lawyers don’t bring most of this up because of the fear of being labelled as an apologist for the Prime Minister — banish that thought, one can want the PM to resign and still feel that some actions of the Court cannot be termed ‘proper’. My objective here is not to put up a defence for anyone, yet I hope it is not too much to apply same standards of propriety and morality on all institutions across the board. The hatred and contempt displayed for judges who took oath under the PCO makes one slightly queasy especially when it comes from those who not so long ago committed the same folly. The army and the intelligence chief remain secure in their jobs with no clamour for resignation after the most horrendous of failures. The argument should not be misinterpreted as advocating lowering of standards for everyone but precisely the contrary. The slightly clichéd precedents from Roman and British democracies would seem more relevant and sincere if resort is also made to the even more clichéd phrases such as “a judge speaks only through judgments” or the puritanically phrased “sober as a judge”, etc.

One expects the realisation is present of what is really at stake here. The employment of the incumbent Prime Minister is not the significant issue; the real contention is, are we willing to relax the rules and compromise the perception of impartiality, even if driven by good faith — actually especially if driven by good faith. The answer should be a categorical and resounding ‘no’.

-The Express Tribune

May 11, 2012
Syed Imad-ud-Din Asad

THE notion of judicial independence and impartiality has always been an integral part of Islamic law. Regarding the administration of justice, the Quran declares: “Surely, We have revealed the Book to you with truth so that you may judge between people by means of what Allah has taught you. And be not one pleading the cause of the dishonest.” (4:105)

It is agreed that the occasion of the revelation of the abovementioned verse was a dispute between a Jew and a Muslim. The Muslim, supported by his tribe, had falsely accused the Jew of theft. Based on the evidence the Prophet (PBUH) decided against the Muslim.

At a time when help was sorely needed for the defence of Islam, such a verdict meant the loss of that tribe. But such considerations did not carry any weight with the Prophet and he cleared the Jew of the charge. Thus, the verse lays down that dishonesty must be punished, and the balance of justice must be held equal between friends and foes and between Muslims and non-Muslims.Muslim judges are required to be upright and not to be swayed by ties of relationship or by considerations of fear or favour. The Quran says: “O you who believe, be maintainers of justice, bearers of testimony for Allah, even though it be against your own selves or (your) parents or near relatives whether one be rich or poor….” (4:135); “… And not let hatred of a people keep you from acting equitably….” (5:8); “… So judge between men justly and follow not desire….” (38:26)

The Prophet was known for his fair and impartial administration of justice. He strictly implemented the Quranic instructions regarding equality before the law, and never made any distinction between litigants on the basis of faith or relations. Besides Muslims, non-Muslims would also come to him for the settlement of their disputes and he would adjudicate in accordance with their laws.

Most importantly, instead of claiming any legal immunity, he laid down the rule that even the head of state may be challenged, in both official and private capacities, in a court. His following statement demonstrates it all: “Verily, those who were before you were destroyed because when a man of stature from among them committed theft, they passed no sentence on him.”

The successors of the Prophet also ensured the implementation of judicial independence and impartiality. Caliph Umar once went to a judge for the settlement of a dispute. The judge, on seeing the caliph, rose in his seat as a sign of respect. Hazrat Umar, considering this act as an unforgivable weakness, immediately dismissed him from office.

Another example that shows how just and impartial the Islamic judiciary must be is when Caliph Ali went to court regarding a piece of armour in the possession of a Jew. As the evidence submitted by Hazrat Ali was apparently insufficient, the judge gave his verdict in favour of the Jew. The Jew was so impressed by the fairness of the Islamic justice system that he immediately returned the armour to Hazrat Ali and embraced Islam.

The following portion of a letter, written by Hazrat Ali to one of his governors, eloquently explains the status and role of the judiciary in Islam: “Select as your chief judge one from the people who by far is the best among them; one who is not obsessed with domestic worries; one who cannot be intimidated; one who does not err too often; one who does not turn back from the right path once he finds it; one who is not self-centred or avaricious; one who will not decide before knowing the full facts; one who will weigh with care every attendant doubt and pronounce a clear verdict after taking everything into full consideration; one who will not grow restive over the arguments of advocates; one who will examine with patience every new disclosure of facts; one who will be strictly impartial in his decision; one whom flattery cannot mislead; one who does not exult over his position.“But it is not easy to find such men. Once you have selected the right man for the office, pay him handsomely enough to let him live in comfort and in keeping with his position, enough to keep him above temptations. Give him a position in your court so high that none can even dream of coveting it, and so high that neither backbiting nor intrigue can touch him.”

Thus, we see that Islam provides for an independent and impartial judiciary. As law in Islam stands at the apex of social organisation, those who administer the law must likewise be elevated and kept independent of executive control. Also, it is the duty of the judges to stand firm for justice, though doing so may become detrimental to their own interests.

Unfortunately, judicial systems in many present-day Muslim countries rarely show the independence and impartiality required by Islamic law. This is not due to some inherent fault in the teachings of the Quran and Sunnah. A dishonest government never prefers an efficient judiciary and, therefore, competent persons are never appointed to judicial posts.

And when a competent person somehow does get appointed, his actions are neither supported nor encouraged. Of course, an upright and capable regime has nothing to fear and does not need to resort to such tactics.

The writer is a graduate of Harvard Law School and director of the Centre for Law and Policy, Lahore.

syed_asad@post.harvard.edu
-Dawn