At the bar of justice

IN a country where national institutions have been repeatedly undermined by military usurpers as well as elected authoritarians, the higher judiciary is now being seen as the sole custodian of public interest. The executive branch appears interested only in self-preservation and the furthering of personal or group objectives. The malaise, however, is not restricted to those now occupying the seat of power. Indeed, most governments that have held sway over the years and decades have been guilty on this score. The legislature, meanwhile, has been reduced to a raucous assembly whose members are concerned primarily with settling personal and party scores, not law-making. The standard of discourse in the houses is far from high. Mindless desk-thumping and verbal abuse are the forte of the treasury and opposition benches alike and, sadly, this state of affairs is unlikely to change even in the event of free and fair elections. Politics is a family affair in Pakistan, a matter of legacy, and the intellectual calibre of the National Assembly may remain as dismal as ever if the same old faces continue to dominate the house. As far as national institutions go, that leaves only the armed forces and the less said on that count the better.

On Saturday, the Chief Justice of Pakistan reminded the judiciary of its historic responsibility at this critical juncture in the life of the nation. Preserving the sanctity of the Constitution and ensuring the rule of law, he said, must be a priority if the popular trust reposed in the courts is to be maintained. As the architect of the judicial activism that has done the country proud in recent years, the CJ is more than qualified to exhort his colleagues to higher standards. If it weren’t for the Supreme Court, Pakistan Steel would have been sold for a pittance to the frontmen of the politicos who may have instigated the ill-advised reference against the CJ. The ‘disappeared’ and their families would still be suffering in silence had the apex court not taken notice of their plight, putting the state on notice on that count and questioning, publicly, the unbridled powers enjoyed by the intelligence agencies. This is a key area where one hopes the SC will continue to focus. The country’s intelligence agencies have become a virtual state within a state, operating without let or hindrance and pursuing an agenda to which even the executive branch is sometimes not privy. Prior to his suspension in March, the CJ had made it known that he would be looking into the all-powerful agencies to define, once and for all, their prescribed role in the affairs of the state. This pending task ought to be tackled with tenacity and vigour.

Others areas where it is hoped the Supreme Court will take the lead include social evils such as honour killings, exchange marriages, child abuse and the scourge of jirgas. Access to justice and the hurdles created in its way by the easily influenced police is another case in point. At the same time, the rapacious ‘development’ lobby with its contacts in the executive branch must be brought to book if Pakistan is not to be turned into a concrete jungle. Ideally, these are issues for the legislature to examine and rectify, but many of its members are complicit in these irregularities and succour cannot be expected from that quarter. All eyes, then, are on the judiciary.

http://www.dawn.com/2007/07/31/ed.htm

Now its the turn of judiciary

Syeda Majeeda Aqeel
"It is the spirit and not the form of law that keeps justice alive" The restoration of Chief Justice Ifthikhar Muhammad Chaudry with due respect by the full bench of the Supreme Court of Pakistan is definitely one of the best upbeat developments in the political history of the country, and many hope that, after the unique decision, the country could be steered out of the politico-constitutional problems that have bothered the nation over time. This verdict of the Supreme Court judges to upend the suspension of Chief Justice Ifthikhar Chaudry stimulated a rupture of celebration from the lawyers who had assembled outside the Supreme Court of Pakistan. Soon after the people crowded the streets and jubilation and there was a festive mood all around and people were seen greeting each other and distributing sweets. However, this may turn out to be merely wishful thinking, keeping in view the enormity of the crisis prevalent in the country. The verdict was announced with 10 judges in favor and three against. The three judges who opposed the verdict were not against the restoration of the chief justice. They differed on the constitutional point that the president was empowered to file a reference against the chief justice. The fact of the matter is that the restoration of the Chief Justice would give rise to multidimensional legal and constitutional problems, instead of offering solutions to the problems faced by the country. These would mainly include the constitutionality of the 17th amendment and holding of the two offices of President and Chief of Army Staff by President General Pervez Musharraf, besides the legality of presentation of budgets without fulfillment of the constitutional requirement of announcement of the National Finance Commission after a stipulated time, and bypassing of the parliament in all important matters pertaining to foreign and domestic policies. Indubitably, if the rule of law in the country has to be implemented and it has to be governed under any real constitutional framework, the Supreme Court has to take up all such cases pending before it since long, in addition to the ones that would be brought before it now by the concerned quarters soliciting its view. However, adoption of such a course by the Supreme Court would be commendable, no matter how full of pitfalls. As the Chief Justice had already said in Lahore before his restoration that until the 1973 Constitution is restored in its real shape the status quo would remain. The status quo definitely is a state of crisis with one state institution having no role in governance and policymaking, squashing constitutional institutions that are really responsible for policy formulation and implementation i.e. parliament and the executive. Now, after restoration of the Chief Justice, who has risen as an emblem of judicial activism and resistance to military power in Pakistan, it remains to be seen as to how he takes up the Herculean task. There can be no surprise that if the top judiciary backed by the legal community in Pakistan would try in earnest to play its main constitutional role of acting as guardian of the constitution, it has to dislodge the power-centre of the military which would be very difficult unless the military as an institution decides that it has to cede the power of use of its physical force to the constitutional institutions, instead of exercising it itself. Because the exercise of power by the military necessitates it's overtaking the other institutions and the state itself. Observers are of the view that the struggle of the Chief Justice and the legal fraternity backed by the citizens was a movement of patriots in Pakistan to save the country from total collapse in the wake of the exercise of unchecked powers by the President Musharraf-led military and intelligence agencies. Obviously, it was at the back of the mind of these people that it was a question of "now or never". By any yardstick, it was a just and rightful struggle on the part of those who launched it and drove it to success. However, it could be that the patriotic legal fraternity of Pakistan is already too late to come to the rescue of the state, as their belated response may not be able to clear the mess of 60 years and save the damage to the state in tangible terms. It is already evident in examples such as the erosion of state's writ in FATA, parts of the NWFP and most of Balochistan. The level of public distrust in the country's future can be gauged from the fact that the silent majority did not choose to take part in the lawyers' struggle. A lot of damage has already been done in the shape of implosion of the important state institutions due to lack of sustainability and support from other institutions and the resultant failure in the evolution of a democratic political culture. Due to weakness of various state institutions, linear and uniform development could not take place. Through the role of the establishment in social innovation like investing in seminaries and the clergy by giving them a definite role in the body politic of the state, we now are witnessing the ugliest manifestation of extremism and Talibanisation. These social innovations by the establishment have backfired. So, in this scenario, the revitalized superior judiciary and legal community may only have the role of minimal damage control. At the same time, it may be kept in mind that in the prevailing situation, the international factor is stronger than that of any domestic movement or public opinion in deciding the fate of Pakistan's policy. The US is more interested that Pakistan plays its role in targeting militants on its soil and is said to be unswayed by the democratic struggle of the CJ. The international factor, especially the US influence in Pakistan, is going to be the final arbiter in policies that have to be pursued by Pakistan in these decisive years of the country's future. Yet another important aspect of the judiciary and lawyers' movement is that, even if they succeed in their struggle for restoration of the 1973 constitution as it was on October 12, 1999, there would be many issues that would bedevil the future of the federation. Because, the constitution has lost its sanctity as illegal amendments by General Zia had distorted the constitution beyond repair. The removal of the infamous 8th amendment by Mian Nawaz Sharif could not stop interference by the military, while Sharif also inflicted irreparable damage to the superior judiciary by unceremoniously compelling then chief justice, Sajjad Ali Shah, to quit. Even if the original 1973 constitution is restored, the nature of issues in Pakistan is such that it cannot be resolved under its framework. The foremost is the relationship between the small provinces and the centre. Now, if the CJ really has to play a meaningful role, he has to assert himself in order to transfer power from the centre to the provinces, thus reforming the highly centralized state structure which is crumbling under its own weight. For this to be achieved, the CJ has to emulate, in reverse, the great icon of judicial activism in world history, Chief Justice John Marshall of the US, who in the 19th century only through his bold interpretation of the US Constitution transferred many powers from powerful states of the American Union to the weak federation, completely in contravention of the thinking of America's founding fathers.

http://www.thefrontierpost.com/News....cat=ar&nid=307

__________________
Time is like a river.
You cannot touch the same water twice,
because the flow that has passed will never pass again.
Enjoy every moment of life.

I have learnt silence from the talkative, toleration from the intolerant, and kindness from the unkind; yet strange, I am ungrateful to these teachers.

A ray of hope

By Anees Jillani
On July 20, the Supreme Court of Pakistan, after detailed hearings from May 15 till the date of judgment, held the Constitutional Original Petition (number 21 of 2007) of the CJ to be maintainable. By a majority of 10 to 3, the validity of the reference issued by the president under Article 209(5) of the Constitution on March 9, 2007, was set aside. The President's Order number 27 issued in 1970 relating to the judges (Compulsory Leave) Order under which President Musharraf had sent the chief justice on leave on March 15 was unanimously declared to be ultra vires.

The validity of the March 9 Order of President Musharraf and of the SJC Order of the same date restraining the chief justice from acting as a judge of the Supreme Court and/or CJ were both unanimously set aside as being illegal. As a consequence, the CJ was declared to be holding the CJ office and to have been always holding it. There was, however, a minority view on this question which found that the reference in question had been competently filed by the president; and the court, therefore, could pass a restraining order under Article 184(3) read with Article 187 of the Constitution.

The appointments of the acting chief justices through the March 9 and the March 22 notifications were unanimously declared to have been made without lawful authority. It was, however, held that this invalidity shall not affect the ordinary working of the Supreme Court or the discharge of any other constitutional and/or legal obligations by the acting chief justices during the period in question and this declaration is so made by applying the de-facto doctrine.

In the end, the larger bench of the Supreme Court consisting of 13 judges stated that it has never been anybody's case before it that the CJ was not accountable. The court accordingly did not adjudicate on this issue; and stated that all other legal and constitutional issues raised before it shall be answered through the subsequent detailed judgment.

The whole legal community is in a euphoric state since July 20. Almost all, with the exception of perhaps President Musharraf, was expecting the court to reinstate the CJ. However, few were expecting the judgment to go to this extent by even declaring the presidential reference against the CJ to be illegal. The judgment is being praised as a landmark one, and many are expecting it to revolutionise the state of affairs in the country. Many even in the presidential camp privately criticised the suspension of the CJ and attributed it to lack of judgement on the part of the coterie of sycophants surrounding the president.

The procedure for removal of a Supreme Court or a High Court Judge under Pakistan's Constitution is different from that of its Indian counterpart. Under article 124(4) of the Constitution of India, a judge cannot be removed except by an order of the president, passed after an address by each House of Parliament. The address is made by each House after a resolution to that effect has been passed by it by a majority of the total membership of the House, and simultaneously, by the majority of the two-thirds of the members present and voting on the resolution. The two Houses are required to pass such resolutions separately in the same session of the Parliament. The details of the procedure for investigation and proof of misbehaviour or incapacity of a judge, and presentation of the address by each of the Houses can be regulated by the Parliament, by law which is presently the Judges (Inquiry) Act 1968. It goes without saying that the Indian procedure is quite cumbersome and obviously has deliberately been made so to make it difficult for the executive to remove a judge of the superior court.

In the case of Pakistan, a judge of the Supreme Court or of a High Court can be removed under the Constitution's article 209. This article 209 talks about a SJC, consisting of the CJ, the two next most senior Judges of the Supreme Court; and the two most senior Chief Justices of High Court. The president can ask the council to 'inquire into the matter' as to whether a judge has been guilty of misconduct if he comes to know about the misconduct from any source; the Council can also take notice of the misconduct on its own motion.

The judge whose conduct is being reviewed obviously cannot continue sitting in the council if he is a member; and the next senior most member replaces him. Article 209(4) further says that if, upon any matter inquired into by the council, there is a difference of opinion amongst its members, the opinion of the majority shall prevail, and the report of the council to the president shall be expressed in terms of the view of the majority.

Article 209(6) says that after inquiring into the matter, the council shall report to the president as to whether the judge has been found to be guilty of misconduct; and it shall be the council that will advise the president as to whether the judge should be removed from office. If so advised, the president may remove the judge.

The constitutional provision on this subject is simple and quite basic. Firstly, it says that a judge of the Supreme Court or the High Court cannot be removed, except through the SJC. Secondly, the provision talks about the membership of the council, and says that the judge whose conduct is being inquired into cannot continue to sit on the council as a member. Thirdly, it says that if the president finds out through any source about a misconduct involving a judge he can refer the matter to the council to look into the misconduct. Fourthly, it will be the council that will find the judge guilty or not guilty, and it will only be the council that will advise the president as to whether to remove the judge or not.

The matter is thus not as complicated as it had been made out to be. The president was obviously wrongly advised that prompted him to take an unconstitutional step in the shape of `suspending' the CJ. He had no authority under the constitution to do this.

And the president has paid the price for this folly. It is nothing short of an irony that he, along with the prime minister, is so far refusing to take any action against the Law Minister, the Law Secretary, or other relevant officials. An easy way out during the midst of the court hearings was to sack all or a few of these individuals and withdraw the reference. However, the rulers had a haughty air about the whole matter.

The decision has given the judiciary immense confidence and the imbroglio has culminated in strengthening the institution in relation to the executive and the parliament. The past few months have also shown to each and every judge in the country that the people appreciate courage in a judge and give enormous respect to anyone who stands up against an unjust and unfair authority. It has given the judiciary an icon in the shape of the present and newly reinstated chief justice whom some have started referring to as the 'pir' of the lawyers. The crisis also revealed the lacunae in the constitutional provision regarding the issue of removal of a judge in the event of a genuine instance of misconduct, misbehaviour, or incapacity. One may hope that the Supreme Court in its detailed judgement would resolve this latter gap.



The writer is an Islamabad-based advocate of the Supreme Court of Pakistan. Email: aneesjillani@yahoo.com

http://www.thenews.com.pk/daily_detail.asp?id=67237

__________________
Time is like a river.
You cannot touch the same water twice,
because the flow that has passed will never pass again.
Enjoy every moment of life.

I have learnt silence from the talkative, toleration from the intolerant, and kindness from the unkind; yet strange, I am ungrateful to these teachers.

A confrontational course

By Javid Husain

THE landmark decision of the Supreme Court reinstating the Chief Justice and throwing out the reference against him has left General Musharraf with two options. The honourable thing would be to accept the overwhelming desire of the nation for a genuine democratic order in the country.

This would involve taking steps through a process of national reconciliation for the restoration of the Constitution as it was before the military takeover on October 12, 1999, the return of the armed forces to the barracks, the setting up of an interim government of national unity, and the holding of free and fair elections under a fully-empowered election commission with the participation of all political parties and leaders. This would be followed by the election of the president without uniform from the new assemblies.

If General Musharraf had followed the course of action outlined above, he would have regained the moral authority which he lost in the wake of the ill-advised reference against the Chief Justice of Pakistan and its mishandling by the general’s minions. He would have led the country to political stability and calm through the healing touch of national reconciliation and the strengthening of representative institutions, in particular, the parliament. It would also have provided him with an honourable exit from the quagmire in which he is currently bogged down.

Unfortunately, instead of national reconciliation, the general seems to have opted for the path of confrontation. His decision to get himself re-elected from the present assemblies in uniform runs contrary to the spirit and norms of democracy as well as to the people’s sentiments prominently displayed during the agitation in support of the Chief Justice.

This decision also runs the risk of aggravating the existing polarisation in Pakistani politics and may prove to be the harbinger of further turmoil, chaos and instability in the country. It is, therefore, a sure recipe for disaster for the country and for Gen Musharraf’s ignominious exit from power.

Gen Musharraf is in the habit of claiming that national interest demands his re-election as president in uniform. By what logic he has reached this conclusion is not clear to anybody except perhaps his close confidantes whose vested interests are tied with his continuation in power.

Perhaps, like many others before him, he considers himself indispensable to the stability and survival of the country. The country existed before he came on the national scene and will survive long after he is gone. In any case, the nation can do without the political instability, lawlessness, denial of justice and deprivation that his eight-year rule has brought about.

But, more importantly, no single individual, howsoever powerful he may be, has the authority to define and interpret single-handedly the national interest of the country. National interest can be defined and refined only through a process of consultation among the various institutions of the state under the guidance of a government representing the will of the people.

The way Gen Musharraf rides roughshod over the various institutions of state (his failed attempt to subdue the judiciary being the latest example) has made a mockery of the process of consultation. But above all, the general does not represent anybody except himself, a coterie of generals and the unprincipled politicians around him.

His government, therefore, lacks the political legitimacy and the moral authority to define the national interest. His constant references to national interest in support of his rule are nothing more than a clever way to disguise his insatiable desire to continue to wield power unchecked by laws and rules.

One also finds quite amusing the daily declarations by Musharraf and his supporters that the general would get himself re-elected in uniform from the present assemblies since this is the requirement of the Constitution.

Since when has the general become so fond of the Constitution? Was it after the overthrow of a democratically-elected and constitutionally-established government on October 12, 1999? Was it after he engineered the ouster of a Chief Justice and a few other judges of the Supreme Court to get his coup validated? Or was it after he pushed the Seventeenth Amendment down the throat of an unwilling nation with the connivance of some self-serving politicians with the objective of assuming unlimited powers?

Whatever the truth, it is obvious to national and international observers that democracy and a president in uniform cannot go together. In a genuine democracy, the will of the people, as expressed through their elected representatives, prevails.

A chief of army staff occupying simultaneously the office of the president and thereby controlling the various institutions of state including the parliament is the very anti-thesis of democracy. The election of a serving COAS to the office of the president, therefore, cannot be justified in a democracy, politically or morally.

Gen Musharraf’s intention to seek re-election to the office of the president from the existing assemblies whose own term is expiring is politically unacceptable and morally reprehensible. If he needs the mandate for another term, he must seek it afresh from the people of Pakistan. That can happen only if he seeks re-election from the new assemblies rather than the outgoing ones whose own mandate is coming to an end.

As for the constitutional provisions about which Gen Musharraf seems so concerned now, his legal wizards can point out ways to get them suitably amended to allow the election of the president from the new assemblies.

The movement launched by the lawyers against a blatant attempt by a military government to subdue the judiciary was not only for the restoration of the independence of the judiciary but also for a genuine democracy in the country and for putting an end to the involvement of the armed forces in politics.

The restoration of the Chief Justice was only the first step in the struggle for the realisation of these laudable objectives. One is encouraged by the statements coming from the leadership of the legal community indicating that they are aware of the battles that lie ahead.

It would, however, be unfair and unrealistic to place the whole burden for the restoration of a genuine democracy in the country on the shoulders of the legal community. The political parties have their own important role to play in this regard. These parties and their leaders, whether in the country or abroad, should come up to expectations in this national struggle to get rid of military rule and establish a democratic system of governance in the country.

They must understand that the time for “deals” and palace intrigues which weaken this struggle is past. The people of Pakistan have awakened and those parties and leaders who try to give a new lease of life to the present military-dominated government will pay a heavy political price during the next elections. In fact, it is clear that the process of taking such parties and leaders to task has already begun.

There is also another category of self-serving politicians, mostly belonging to the ruling party, who are trying to scare the people that if they persist in their demands for a genuine democracy and a president without uniform, it would result in the imposition of martial law.

However, these tactics are unlikely to work. The people are fully aware of the colossal damage that martial laws and the military regimes, including the present one, have inflicted upon the state and its institutions in the past resulting in stunted political evolution, endemic political instability and elitism that together have led to the denial of justice, lawlessness and deprivation and great income inequality.

Under these circumstances, contrary to the past, the people are not likely to take lying down any declaration of martial law. There are also signs that many political parties and leaders, except those enjoying the patronage of the present military government, have learnt from their past mistakes and will no longer play into the hands of the military establishment. Further, a martial law would amount to acceptance of a political defeat by Musharraf and might sound the death knell for his rule.

Finally, Musharraf and his minions frequently justify the present quasi-military rule on the basis of the serious external challenges faced by Pakistan at the regional and international levels. The argument couldn’t be more fallacious. In times like these, the country needs a government which enjoys the full support and mandate of the people won through fair and free elections.

A military dictatorship, lacking the mandate of the people, is a fragile structure which, as our own history shows, can crumble easily in the face of external pressures.

Ideally, General Musharraf should have shown statesmanship and chosen the path of national reconciliation for the restoration of genuine democracy in the country. Instead, it appears from his latest statements that he has embarked upon the path of confrontation. The course of action adopted by him can only lead to political turmoil and instability in the country. Since a government lacking political support is ill-placed to face external challenges, it may even lead the nation to a foreign policy disaster.

Despite the internal and external dangers looming ahead, it would be unrealistic to expect General Musharraf to change course. It appears from his past conduct, especially from the recent judicial crisis, that more than principles and scruples, the general understands the language of power.Civil society in Pakistan, therefore, must play its own role in blocking the efforts of the military establishment led by General Musharraf to prolong its rule in the country. As they say, eternal vigilance is the essential requirement of freedom and democracy.

The writer is a former ambassador.
E-mail: javid_husain@yahoo.com

http://www.dawn.com/2007/08/22/op.htm

__________________
Time is like a river.
You cannot touch the same water twice,
because the flow that has passed will never pass again.
Enjoy every moment of life.

I have learnt silence from the talkative, toleration from the intolerant, and kindness from the unkind; yet strange, I am ungrateful to these teachers.