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  #1  
Old Friday, May 25, 2007
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When a judge speaks of 'Day of Judgment'

By Anjum Niaz

"Don't scare us" said Justice Ramday to Malik Qayyum, the government's counsel, after hearing how Malaysian President Mahathir Mohammad deposed judges inimical to him. The judge who heads the 13 member Supreme Court bench on the CJ case then motored across to Marriott that Monday afternoon to preside over a lecture on religion and terrorism. "As I was coming here I thought of the Almighty ordaining knowledge for mankind at the beginning of the Holy Quran," said Justice Ramday. He recited the relevant verses in fluent Arabic underpinning the splendour of self-study and logic made easy for humans. From a heavenly discourse, the judge descended the spiritual staircase down to a flesh and blood world inhabited by ordinary Pakistanis in everyday life.

But before I spill my story of that day, let me confess to a state of consternation. I am temporarily seized by the arrangement of the honourable judge's quotations and their placement. He is an influential judge, daily making headline news. So what tone and voice does one employ? Should I tell it straight as it came from the horse's mouth (excuse the awful cliché) or hem and haw and hide behind journalistic gobbledygook?

It would be an injustice to Justice Ramday if I place him beyond the pale of human experience, etherising him as a judge whose heart and soul must not be touched. On the contrary, generous with his personal narrative, the judge provided us a multi-dimensional view of his diverse background, the telling feature being that he was comfortable sharing his life story just like any other human who himself tells about who he is, and why.

As I begin to assemble a portrait of the judge -- very much a product of the society in which we live today -- the contrarians among us may well ask why the pressing need to know Justice Ramday. Fair question. The persona of a judge -- his intellectual pursuits, mannerisms, attitudes, interests and life outside the purview of the court -- helps us frame our personal beliefs by correlating his legal arguments with his personal characteristics rather than legal precedents that he may cite. Our opinions can be over simplistic or too nuanced, fiercely dramatic or cloyingly pious, but at least we would have tried entering the judicial monastery where no ordinary mortal dare wander. Is this argument too dense? Too tangled? Okay, let me try a simpler route and come right to the point with an exclusive insight of what I'm trying to present.

Justice Ramday joked, smiled, listened, spoke as if he was one of us and not above us. A flesh and blood kind of man one can dialogue with. His moral compass pointed in the right direction; his spiritual reach was authoritative; his knowledge of Islam and other religions far-reaching. The audience, wary at first (aren't we all scared to even approach our lordships for fear of contempt of court?) drawn by his sincerity of purpose, gravitated towards Justice Ramday. Having suffered over bloated, half-literate and unsavoury 'chief guests' who are never on time, Justice Ramday was sophisticatedly humble and intellectually principled. And very punctual.

On the dais, he sat not nitpicking panellists, but wanting to be enlightened. He heard with rapt attention what Air Marshal Nur Khan said about the end of Musharraf's army rule and the beginning of democracy; he introduced the former interior secretary Tasneem Noorani as the "most handsome bureaucrat he'd seen"; he appreciated MNA Meenu Bhandara's bid to re-launch his amended bill on blasphemy; he complimented his host Ambassador Iftikhar Murshed for his excellent journal the Criterion; and he gave us a patient hearing when the audience instead of asking short questions engaged in dialectics.

Singling out two "great teachers" Justice Ramday spoke adoringly of Khwaja Masud and Nasrullah Malik sitting in the front row. "But for teachers like them, people like me wouldn't be here today." His appreciation was genuine, not symbolic, just as his interest in what we had to say was real not routine.

He reminisced of his college days, some 40 years back. Earlier parliamentarian Fauzia Wahab of PPP had mentioned her university days in Karachi and how girl students were free to roam around the campus. Justice Ramday joked about having missed all that fun for being in the "wrong place at the wrong time." He told us that he went to Gordon College, Rawalpindi, and was not allowed to talk to girls: "We had a notice saying, 'Anybody talking to a girl will be fined Rs10.'" The underlying humour was contagious and the audience began to relax, no longer awestruck by the presence of a judge presiding over 24 petitions challenging the presidential reference against the CJ.

Ms Wahab lamented the beard and burqa invading our culture. Dispelling her fears, Justice Ramday said the beard is not the sole identity of Muslims. The Jews, Christians and Sikhs too sport beards. "A beard is not the kind of curse we take it to be." Similarly, he said, we shouldn't "look down" upon women who cover their faces. He mentioned travelling the countryside in India and found Hindu women bent in veils coming down to their ankles.

Without naming the clergy, he said we should not rely on other people's "eyes and ears" to interpret religion. "In legal and judicial terms we discard such people as 'interested witnesses' because there's a motive attached to their evidence." Allah has made the study of our Holy Book so easy: "Treat it like an owner's manual, a guide." Just as a manual informs the owner how to operate the machine, "the Creator and the Manufacturer of man has given him the Holy Quran as a manual which guides man how to live."

Irrespective of Zia's "ideology", the judge said he gives credit to the general for introducing religion to the masses. "He gave Islam respectability... I remember I was in Gordon College in those days. My father would force me to offer my prayers," said Justice Ramday who today has a mehrab on his forehead.

As one deeply interested in other religions, Justice Ramday rightly observes: "What does the Old Testament, the Bible, Vedas, the Wheel of Life with 8 spokes, Jainism, Buddhism and all other scriptures speak of? They show the path for man to be a human; how to attain nirvana and salvation." Every soul worries about "accountability and stock taking… reward and punishment in the life hereafter." The venerable judge is aware of the 'Day of Judgment' hovering over all of us. He recently rebuffed Malik Qayyum saying that the Supreme Judicial Council was not above the apex court: Will a judge wait for the Day of Judgment to get justice, he asked the counsel defending the government?

As an ardent advocate of interfaith dialogue, he says "this planet would be worth a life if a Muslim, Hindu, Jew or Christian irrespective of his faith is above all a good human being."

Calling people who attack each other "narcissists" Justice Ramday gives a parable (dare one draw political parallels here?) of two people travelling to Lahore via two different routes -- the Motorway and the GT Road. Instead of "slitting each other's throats" saying their route was "better" wouldn't it be civil if both the feuding parties eschewed their differences and said to each other: "I wish you good luck. Follow the rules. Be careful with your speed."

All rise for Justice Khalilur Rehman Ramday.



The writer is a freelance journalist with over twenty years of experience in national and international reporting. Email: aniaz@fas.harvard.edu
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Old Thursday, May 31, 2007
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Together we are

NAUMAN ASGHAR

Judiciary is a vital and the most important pillar in any modern state. This institution dispenses justice among citizens and protects their rights from being transgressed by their fellow beings and state authorities to boot. But judiciary can perform these functions only when it is independent.
Unfortunately we in Pakistan have failed miserably to ensure the independence of judiciary. Pakistan's chequered history is witness to the fact that executive had had an upper hand in its relationship with judiciary. In 1954, a Governor General dissolved the constituent assembly soon after the latter passed two important bills. One of these enactments was for the purpose of repealing PRODA (Public Representatives & Officers Disqualification Act) of 1949. The other enactment curtailed the undemocratic and arbitrary powers of Governor General which he had derived from the Government of India Act,1935,as adopted for Pakistan at the time of independence.
However, Governor General alleged in the proclamation that the constituent assembly had 'lost the confidence of people and can no longer function'. The president of the constituent assembly, Maulvi Tamizuddin Khan, challenged the proclamation in Sindh High Court. The latter gave verdict in Tamizuddin's favour. But the Federal Court frustrated SHC's effort to restrain executive authority by upholding Governor General's decision to dissolve the constituent assembly. Later on the apex court, the primordial duty of which is to keep the constitution intact, legitimised all military takeovers who have made a sterling contribution towards the welfare of the country!
The present judicial crisis is the result of an attempt to shake the tradition of judicial deference to the core. CJ Iftikhar Muhammad Chaudhry had started probing into sensitive issues. He had struck down the privatisation of Pakistan Steel Mills; taken up missing persons cases and was likely to investigate into the bungling of stock exchange.
So when CJ did not resign on his own, the government filed a reference against the latter and he was sent on forced leave. All the charges leveled against him are 'seemingly minor offences'. We find no substantive charge in the reference by any stretch of imagination. Kudos to legal fraternity, that has rightly felt that it is time not to squander the opportunity but this situation should be milked for all its worth.
The warm welcome that was accorded to CJ from Islamabad to Lahore on May 5, is an evidence of the people's enthusiasm to support CJ. Infact people are not supporting one person but they have thrown their weight behind the movement for ensuring the independence of judiciary and getting rid of another military ruler. CJ has played his role in inspiring the people to an extent where they would be able to float the present current, even if he is sidelined.
On May 12 CJ per schedule, went to Karachi for addressing SHC Bar Association. What happened on that day reminds of the' massive military crackdown on June 3 and 4,1989 in Tiananmen Square of Bejing, killing hundreds of peaceful protestors. On the one hand, CJ accompanied by his lawyers, was not allowed to go out of the airport and on the other hand, 40 people were killed and 100 were injured who tried to make an awe-inspiring display of support for the CJ. This day will be remembered as the darkest day in the history of Pakistan. Times are changing, petty politics and iron-fisted methods have failed to dampen people's resistance. We as a nation should stand together and support the legal fraternity in this struggle for seeking justice. We should praise the unity shown by the lawyers' community for preserving the dignity of the most prestigious institution of Pakistan.
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Old Thursday, May 31, 2007
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A nation misled

Muhammad Mansoor Khan Mohmand

The judicial crisis and the ensuing political turmoil are the burning issues that caused violence in Karachi and elsewhere in the country. Some critics are of the opinion that the West and the US administration are observing the ongoing political and judicial crisis cautiously. For instance, the High Commissioner of Britain to Islamabad asked General Musharraf recently to separate the offices of the President and the Army Chief. The same views have been articulated by other eminent international critics. Nevertheless, both General Musharraf and Ms Benazir Bhutto, the self-exiled leader, are endeavouring desperately to attain the Western, particularly the US, support to hold the reins of power in Pakistan instead of looking towards the nation and its desires.

Ms Bhutto is reported to have hired the services of a top lobbying firm in Washington – Burson-Marsteller – for a six month period at a cost of some $ 250,000 to sway the opinion of the West, especially the US, in her favour for the upcoming general elections. Mr Nawaz Sharif, the exiled former prime minister, has termed the talks of Benazir with the military government as treason and has rejected any plans to attain political power with the support of the US. Why he specifically mentioned the US on the occasion of her visit to that country is worth knowing. An analytical study of history would give the answer of this question. Probably that is why Qazi Hussain Ahmed said that he would take care of Mr Fazlur Rehman (as he refused to apologise for supporting the 17th amendment) and PML (N) should take care of the PPP-P to create a grand opposition alliance.

On the other hand, the government has engineered the issue of Lal Masjid and Jamia Hafsa with a two-fold purpose — to divert the attention of the people from the judicial crisis and to highlight the presence of Islamic extremists in Pakistan to gain the support of the West on the issue of General Musharraf’s uniform for the next tenure. Moreover, the government has showed its strength, with or without using the governmental machinery in Islamabad on May 12, by holding folk and cattle dances when Karachi, the business hub of the country, was burning. All the law-enforcing agencies disappeared and the main artery, the Shahrah-e-Faisal, turned into a battlefield. That day might had the right to do anything it wanted in the city.

One is surprised to see that while the writ of the government is being challenged in Islamabad on the Lal Masjid issue, the government was conspicuous by its absence in Karachi where dozens of people were killed in cold blood on May 12. Is Karachi not part of the country? Does the writ of the government not apply to Islamabad? Is the use of lathi in Islamabad and modern weapons in Karachi legal? The mysterious murder of Syed Hammad Raza, additional registrar of the Supreme Court, has made the whole picture ambiguous.

Since March 9, 2007, Pakistan is in a severe judicial crisis and the whole nation, including of course the lawyers’ community, is striving hard for the independence of the judiciary and the rule of law. The unprecedented welcome of the Chief Justice on May 5 is a testimony in this regard. The movement is a ray of hope for a real and true democracy to take roots in Pakistan. The military and political leadership must pay heed to the voices of the masses, instead of looking for external support. The wishes of the people must prevail. There should be no room for the personal interests of any individual or group or a party to act contrary to the provisions of the Constitution of the Islamic Republic of Pakistan.
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Old Friday, June 01, 2007
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Cometh the hour, cometh the man
ROEDAD KHAN

I subscribe to the hero theory of history that great men do make a difference. In the history of the world those who have won have always been those who challenged the unchallengeable at the right time and at the right place. "If the individual and the situation meet", Willy Brandt told Oriana Fallaci, "then the machinery is set off by which history takes one direction instead of another". The individual and the situation were about to meet at General Musharraf's Camp office in Rawalpindi on March 9.
Iftikhar Mohammad Choudhry's appointment as Chief Justice of the Supreme Court was one of the happy accidents that changed the course of history. Had fate not intervened, he would have retired like any other Chief Justice, leaving behind an indifferent judicial record. But somewhere in the universe, a gear in the machinery shifted. As history shows, everyone must, from time to time, make a sacrifice on the altar of stupidity to please the deity. General Musharraf thought himself poised on the cusp of power, but was about to start sliding down a slippery slop whose end may be disastrous. That is for sure. He made a fateful move on March 9, a day that will be remembered as a Black day in the history of Pakistan.
No event of our chequered constitutional history will be better remembered than General Musharraf's decision to send a reference against the Chief Justice on preposterous, almost laughable grounds. But when Chief Justice Iftikhar refused to resign, and decided to defend himself, he ignited a flame that would soon engulf the country. With that simple act of courage, he changed the course of history. The die was cast. The Rubicon crossed. Suddenly, "that uneasily dormant beast of public protest" -government's nightmare, the President's greatest challenge - burst forth.
The most primary motive for this seismic event was, of course, the fury of ordinary Pakistanis at the suspension and humiliation of the Chief Justice. Suddenly the people realised that they had been betrayed, lied to, deceived, taken for fools, by a power hungry elite.
When he assumed office as Chief Justice of the Supreme Court, the court lay prostrate. He found a skeleton. He clothed it with flesh and blood. I saw him in the Supreme Court a few days before he was suspended. In the courtroom, his outstanding characteristic was the quiet, easy dignity with which he presided. I heard him pronounce the opinion of the court in a low, but modulated voice. He will be remembered in history as the Chief Justice who brought the people together, gave them hope and cemented the federation. Today he suffers so that the nation might live. He has become the focal point of a degree of support unprecedented for a non-elected official. It was as if the people felt the national peril instinctively and created a centre around which the national purpose could rally.
Today, Chief Justice Iftikhar Chaudhry presents himself before the nation as a glowing beacon against the forces of darkness. There is no sublimer picture in our history than this of the Chief Justice, facing all alone, a military dictator, serene and unafraid, refusing to resign, interposing the shield of law in the defence of the Supreme Court. It reminds one of Justice McReynolds of the US Supreme Court. "I will not resign", he said, "as long as ... Roosevelt is in the White House".
Chief Justice Iftikhar knows he is not a Hercules. He doesn't have the capacity to move the country with words or with eloquence. But he has character and character counts more than any other single quality in a leader. When the chips are down, how do you decide? Which way do you go? He tells the people to soldier on and assures them, they were going to win. So here we have - courage, fearlessness, determination - call it as you will.
When we organise with one another, when we get involved, when we stand up and speak out together, we can create a power no government can suppress. We live in a beautiful country. But people who have nothing but contempt for the people and no respect for democracy, freedom or justice have taken it over. It is up to all of us to take it back. And as Margaret Mead said, 'never doubt that a small group of thoughtful, committed citizens (in this case members of the Bar) can change the world; indeed, it is the only thing that ever has'.
In many ways the revolution triggered by the courage of one man - Chief Justice Iftikhar - is the test of fire of the constitutional system of Pakistan. It represents an extralegal appeal to the nation to settle the fundamental political issue facing the country - who is to rule this country? A General in uniform or elected representatives of the people? Ultimately, such issues are decided, not by the Supreme Court to which the resolution of such questions was confided by the constitution, but by the people in the streets of Pakistan. As so often in our history, an essentially political controversy has been converted into a legal battle, with the disputed issues being argued in constitutional terms in the hope that the crisis could be settled peacefully. It reminds one of Justice Jackson's striking claim - "struggles over power that in Europe call out regiments of troops, in America (as in Pakistan) call out battalions of lawyers.
This is the darkest hour in the history of Pakistan. If Mr. Jinnah came back today, he would say, "I am afraid I need to erase this and start all over again". Is the dark long night about to end? And has the time come for us to leave the valley of despair and climb the mountain so that we can see the glory of another dawn? The darkest hour is just before the dawn and as generally happens in history, it is at the darkest hour that a bright star arises when you have almost given up hope. When a nation is in crisis, it needs a man to match the time. "You don't create such a man, you don't discover such a man. You recognise such a man. "Cometh the hour, cometh the man". The hour has found the man who has the character, the will and the determination to speak truth to the military ruler. Chief Justice Iftikhar Mohammad Choudhry appeared on the scene like a deus ex machina and changed the course of history. 'La verite en marche'. (Truth on the march), and nothing shall stop it. And, as Margaret Mead said, "never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it is the only thing that ever has".
Our moment of truth has arrived. To borrow the prophetic words of Dostoevsky, "I have a presentiment of sorts that the lots are drawn and accounts may have to be settled far sooner than one might imagine in one's wildest dreams".
Web: www: roedadkhan.com
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Old Wednesday, June 13, 2007
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Round one to CJ


Wednesday, JUNE 13, 2007



While the Supreme Court on Monday deferred its ruling on the maintainability of a petition filed by Chief Justice Iftikhar Mohammad Chaudhry against the presidential reference he faces, it nonetheless commenced regular hearings on his plea. Justice Khalilur Rehman Ramday, who heads the 13-member larger bench that is hearing the case, said that the question of maintainability of the petition, together with its merits, would be decided later and other similar petitions judged in light of the outcome of the chief justice's case. However, for all intents and purposes, the fact that the Supreme Court already began regular hearings on the chief justice's constitutional petition questioning the composition of the Supreme Judicial Council and its competence to probe his conduct is a moral victory of sorts for the chief justice. It is also the correct thing to do given that the matter is very sensitive and hence any doubts or questions raised by any side regarding (a) the validity of the reference itself, (b) the legality of the forum that is to hear it, or (c) the authority under which it was drawn up and filed, need to be first addressed. By hearing the chief justice's constitutional petition, this will at least be done.

Just to recapitulate, the government's main defence seemed to be that the Supreme Judicial Council was the right forum to hear such a reference and that any action by the president could not be called into question in a court of law, because under the constitution the president had immunity from prosecution and/or lawsuits. The arguments put forward by the chief justice's main lawyer, that the president moved the reference without first forming an opinion, that the government violated the constitutional safeguards set down in Article 209 under which a judge of a the superior courts could be restrained from performing the duties of his office and sent on forced leave and that questioning the validity of the notification for the appointment of the acting chief justice on the same day as the reference against the chief justice was filed are all important and need the attention of the court.

In fact, Monday's developments are also good in that they come amid reports that the government intends to file another reference against the chief justice -- the law minister saying on June 10 that this would be filed at an "appropriate time, if needed”. Such a choice and use of words seems to suggest that the government will use this as a kind of threat or warning to the chief justice to bring him under further pressure. The minister has said that this second reference will be based on the activities of the chief justice since March 9 and on what he terms are the "facts” contained in the three counter-affidavits filed with the Supreme Court by the director-general of Military Intelligence, the director of the Intelligence Bureau and the president's chief of staff. Filing a second reference will be counterproductive and only serve to reinforce the public perception that the government wants to remove the chief justice by any means necessary. Besides, it may also reflect a thinking among some in the government that perhaps the reference that has been filed does not carry enough merit and needs to be supplemented by another. Furthermore, the law minister has said that "legal experts” are still being consulted on the finer points of the second reference under consideration. Then why talk about it beforehand, when, in the minister's own words, it is still being vetted? Is the purpose to scare the chief justice in particular and the superior judiciary in general? The government should allow the Supreme Court to carry on with what it is doing and should forget about filing any more references. One can only wonder when the government's penchant for continuing on a confrontational path with various institutions will subside -- that is when a semblance of stability and certainty will return and the government's own credibility -- currently at an all-time low -- will improve.


http://www.thenews.com.pk/daily_detail.asp?id=60254
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Old Sunday, June 17, 2007
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Independence of Judiciary


GENERAL (RETD) MIRZA ASLAM BEG
Sunday, June 17, 2007


Pakistan emerged as a dynamic force against all impediments that stood its way, as a testimony to the fact that Peoples' will cannot be subdued. The achievement, however, has to be sustained and jealously guarded so that the 'vision' was not lost sight of, but unfortunately the institutions that serve as shock absorbers, and lend anchor to the nation were weakened, even disgraced at the alter of expediency.
Strategic long-term objectives were sacrificed for short-term gains. Judiciary, a constitutional imperative to protect the rights of citizens, fell a victim to the infamous 'Law of Necessity'. The status quo was thus maintained in favour of the power brokers, for almost half a century and was ordained to remain so even beyond the elections 2007, but a man of conscience stood up to defy and break the status quo. He gave the message that the bruised judiciary shall be revitalised to gain its robustness, which was to be its ultimate destiny.
Pakistan was not condemned to remain perpetually under a state of stagnation. Forces, though seemingly imperceptible, steered public consciousness for dignity of law. Chief Justice Iftikhar Mohammed Chaudhry was confronted with a choice to 'resign' or face the consequences of reference against him. Had he been guilty from inside, he would not have mustered the courage to say 'No' to the demand to resign. It was the courage of one single person, bearing symbiotic relationship with the hopes and aspirations of the people of Pakistan, that caused spontaneous upsurge of the non-electoral lawyers' community, in support of the decision of their Chief Justice, irrespective of their loyalty to different political parties.
It was a simmering passion, which found expression in the defiance of the Chief Justice, and the lawyers vicariously inhaled power of their profession. It also found back-up support from other segments of the society as well, despite the crude attempt by the government to obstruct the expression of popular support. In fact, the movement led by the Bar and the Bench can be termed as the Consolidation Phase of the battle for Pakistan, won by Quaid-e-Azam, with the help of his legal fraternity and the Muslims of the subcontinent.
In fact the lawyers should have come forward much earlier to accomplish this task, yet waiting for 60 long years to intervene, is not a very long period of time in the life of the nation.
Expressing the burden of responsibility, Justice Khalilur Rahman Ramday, very aptly remarked: "It is not the trial of the Chief Justice, but each one of us is on trial," meaning thereby that the judgment of the apex court must lay down the essentials for the preservation of the supremacy of the constitution, and the independence of the judiciary. The judgment would, thus deny the advantage of the "law of necessity", to the power brokers - Military, the Judiciary and the colluding politicians - who brought about regime changes in the past and held power, in one form or other and debased the very institution of democracy. How would the regime change take place now, particularly through the elections 2007, would be determined by the court judgment. The court may also lay down the principles for setting up the interim government for holding the general elections and the rules of business. There are several anomalies in the existing system of elections, such as over twenty million fake identity cards were used to win the 2002 elections for the PML (Q) - and many such weaknesses, which need to be addressed.
The movement for the independence of the judiciary has established the emergence of the two power bases. One is the "Bench and the Bar", which has acted as the catalyst for this independence of the judiciary. Irrespective of its political affiliations, it has demonstrated unity of thought and action, as the quintessential element of 'their loyalty to the state by supporting the system of justice'. How this 'power base' would be accommodated in the emerging political set-up, is the cardinal question. In fact, this power base would provide the core value for the emergence of the democratic order. Ignoring this 'core' may prove disastrous, as in the past, the main political party - Pakistan Muslim League - which provided the platform for the Pakistan movement, lost its strength and vitality, on the alter of expediency and self-interests of the politicians, bureaucrats and power seekers, and plunged the state of Pakistan into turmoil, resulting into serious consequences of national integrity, political system and social justice.
The second power base, is the media, which energised the movement, and unnerved the powers to be, who tried to suppress it by force but failed. The media has come to establish itself as a powerful instrument of change. It could not be tamed, through the charm of 'plots and permits.' When the call came it responded with a sense of commitment, and loyalty to the state by supporting the system of justice. Definitely it has a role destined for it in the future set-up of the government, which cannot be ignored. Together with the Bar and the Bench, it could provide the core value for the emergence of a robust democratic order.
The political parties of Pakistan, have failed to respond to the demands of the movement, because they could not fathom the new realities and the changed texture of mainstream politics that have emerged and the new power equation which will determine the future shape of the emerging democratic order. In fact the political parties still believe in the old status quo power sharing and reject the reality of independence of judiciary.
For example the present regime, holds the second reference ready, to be used against the Chief Justice, if the first reference fails. But at the same time, the reality of the independence of the judiciary seems to have dawned on the President, as admitted by him: "The matter is extremely sensitive and only the Supreme Court is the deciding authority. Decision of the court will be binding on everyone." The Pakistan Peoples Party, in the past, subordinated the judiciary for its political purposes. Chief Justice Sajjad Ali Shah became the victim of such designs. Benazir Bhutto is still running around to strike the deal, not realising that all political options would flow from the impending Supreme Court judgment. The Pakistan Muslim League assaulted the Supreme Court, because the court was not prepared to oblige. Nawaz Sharif is determined to hold the APC, whereas, he should wait for the court judgment and not allow the APC to be overtaken by events. How would these political parties reconcile to the changed realities, and accept an independent judiciary, as an essential part of the system, is the moot question. In fact, this transformation from status quo to the independence of judiciary demonstrates the power of the civil society, to bring about the change, by asserting its will.
A quiet revolution is in the making, which augurs well for the country. The judiciary will assume greater responsibility of protecting the sanctity of the constitution and the deprived segments of the society, who shall not be discriminated against and will find equal opportunities for growth and prosperity. The Executive, constituting both civil and military institutions will have defined roles, which they cannot transgress any more. Democracy is not a mere form but substance as well.
The saying of Cicero must not be lost sight of: "We are in bondage to the law and order, that we may be free."
E-mail:fr786pak@isb.comsats.net.pk

http://www.nation.com.pk/daily/jun-2007/17/columns1.php
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A landmark judgment


Satureday, July 21,2007

AFTER weeks of speculation and suspense, the judgment is finally in. Under attack on every front and getting more rattled by the day, the government suffered what could be a crippling body blow on Friday when the Supreme Court unanimously restored Mr Iftikhar Mohammad Chaudhry to the office of Chief Justice of Pakistan, ruling that the presidential reference against him was illegal as were the CJ’s suspension and the decision to send him on forced leave. The appointment of an acting Chief Justice was also declared unconstitutional. Restoring the CJ with effect from March 9, the day he was made ‘non-functional’, the apex court further held that the Judges Compulsory Leave Order 1970 was ultra vires of the Constitution. The only point on which the bench was not in total agreement was the setting aside of the presidential reference, where a 10-3 majority prevailed. The hearing of the CJ’s petition lasted six weeks and the full implications of his vindication will become clearer with time. By publicly accepting the ruling, the government may try to spin the outcome to its advantage, stressing that it allowed justice to take its course. This does not, however, alter that fact that its actions on March 9 and in the days that followed represented a frontal assault on the independence of the judiciary. If the president and the prime minister are now in an accommodating mood, it is because they have no other option. As for the Chief Justice, he stands vindicated but it remains to be seen what role he can play in future cases involving the federal government. After his lengthy court battle and public rallies, can he be fair and just to those who tried to destroy him? Would a conflict of interest arise?

The president, for his part, stands on increasingly shaky ground. Ill-advised and possibly misled, he blundered badly when he ‘summoned’ the Chief Justice to the Army House and asked him to step down. Hubris probably played a part, as may have the track record of the higher judiciary in its past dealings with military rulers. In short, President Musharraf simply could not have foreseen the consequences of his actions on that fateful day. Confronted with a bevy of intelligence officials and a huge chargesheet, the Chief Justice was no doubt expected to acquiesce meekly and fade away. Instead he stood his ground, and with that one defiant gesture altered the balance of power in the country. Until then, the beneficiaries of the engineered democracy foisted on the country in 2002 had seemed secure in their derived authority, shrugging away scandals that would have rocked previous governments and caring little that they lacked legitimacy in the eyes of the people. The president-cum-COAS made all the decisions then and it was expected that the government that emerged after the next elections would, like the present one, be entirely of his own choosing. Cronies insisted that the president would be re-elected by the sitting assemblies, and his holding on to both offices was a distinct possibility. Some of that may still come to pass but much has changed since March 9 and nothing can be taken for granted any longer.

More than the government or the Chief Justice, the last six weeks served as an acid test for the judiciary itself. In the end it acquitted itself well, choosing not to go down the route taken in the past. A Supreme Court that sanctified Ayub Khan’s martial law in 1958 and legitimised Ziaul Haq’s usurpation two decades later has now set a historic example that could help thwart any future adventurism by military men. The question on everyone’s lips is: has the judiciary finally come of age?

http://www.dawn.com/2007/07/21/ed.htm
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A defining moment for the judiciary



By Sajjad Ali Shah
Satureday,July 21,2007


I HAVE been following with great interest the proceedings of the case of the Chief Justice of Pakistan. The judiciary is an institution with two sides like that of a coin. One is external which is visible to the people and the other is internal which is not visible and is not discussed in public.

What happens inside the judiciary and to the judges as they interact with the executive is not divulged to the outside world. The Chief Justice knows better because he controls the administration and deals with the executive in that connection.

So there are wheels within wheels. The executive always tries to win over the judiciary by following a carrot and stick policy. The CJP administers the oath of office to the president and vice versa, and there are important functions in the presidency and PM House with the participation of foreign dignitaries which are attended by the CJP.

Both civil and military governments want a friendly judiciary and they don’t like decisions against the government or its policies. Even otherwise, Islamabad is a small town with a limited social life. On the administrative side, the CJP can accommodate the federal government but without transgressing the Constitution and law.

During my tenure as CJP, a request was made to me by Prime Minister Nawaz Sharif for the appointment of a particular lawyer as attorney-general of Pakistan. I consulted the CJ of the high court of the province concerned and in spite of some difficulties, we were able to make the appointment as wished by the prime minister acceptable to all relevant quarters.

In February 1997, Mian Nawaz Sharif won the elections and took oath on February 17. One or two days before taking oath, he came to my residence in Rawalpindi for a courtesy call accompanied by Messrs Wasim Sajjad, Sartaj Aziz, Chaudhry Nisar Ali Khan and Ishaq Dar.

We had a friendly meeting of 45 minutes during which he talked about his heavy mandate and expressed his interest in dispensing cheap and quick justice at the doorstep of needy people and sought the cooperation of the courts. I assured him that the same was possible under the existing judicial system if more judges and funds were provided. Our working relationship started on a happy note until a misunderstanding was created between us. His ears were poisoned by hawks in his cabinet and supporters.

Differences started with the setting up of speedy courts, which was a parallel judicial system manned by retired judges or lawyers appointed at will for limited tenures, and then over the appointment of five judges in the Supreme Court.

Punjab Chief Minister Shahbaz Sharif was not willing to let go of the CJ of the Lahore High Court and two other judges to join the Supreme Court and refused to give reasons as directed in the judgment of the Judges’ case. Prime Minister Nawaz Sharif cut the number of the judges of the Supreme Court from 17 to 12 to block the appointments.

Of course, the 13th and 14th Amendments were made in the Constitution without a debate by relaxing the rules of procedure. Cases were taken in hand for hearing against the prime minister on the grounds of corruption, abuse of authority and contempt of court.

He, his supporters and party workers resented this very much and there were camps of hawks and doves. Many well-wishers gave correct advice and were in favour of an amicable settlement but the hawks remained adamant.

President Farooq Leghari and then COAS General Jehangir Karamat intervened to defuse the situation and to avoid a conflict between the executive and the judiciary, but to no avail. General Nasim Rana, DG, ISI, was also playing an important role and they are very important witnesses.

On the other hand, the government was trying to find a legislative way to get rid of the CJP. The National Assembly and Senate were in constant session. They were debating the taking away of the administrative powers of the CJP by making a roster and assigning cases to be exercised by a board of senior judges.

Damage is always done to the institution from within. The prime minister was advised to work on the judges and isolate the Chief Justice. He had a meeting with me at his Model Town residence and in the presence of Mr Majid Nizami and Mr Shahbaz Sharif offered me a better position after my retirement as CJP if I cooperated.

In return, he wanted me not to hear cases against him. I did not agree and insisted that I would decide cases according to the law, that I had no animus against him and that he should not be fearful if allegations were false.

I also offered that if he was interested in speedy trials, then within the same judicial system, I was prepared to make the high court a trial court and the Supreme Court an appellate court to decide cases in the shortest possible time, provided he gave more funds for increasing the number of judges. He agreed first but then backed out.

I was also hearing the case of the political wing of the ISI as to under what law it was functional and the scope of authority under that law. It was under such circumstances that the government of Nawaz Sharif finally decided to work on the judges of the Supreme Court to go against me. It was also decided that first a judicial order would be obtained in any proceedings, suspending the notification of my appointment as CJP and then to dislodge me by force, including an attack on the Supreme Court.

I was not afraid of the two murder attempts on me and numerous letters threatening to kill me and my family members. I sent the copies to the president and the DG, ISI. The threats were that if anything happened to the prime minister, I would not be spared.

I was presiding over the bench hearing a contempt case against the prime minister. On his request, the bench granted one week’s adjournment during which petitions were filed in the registries of the Supreme Court alleging my appointment to be unconstitutional for the reason that I was not the senior-most judge when I was appointed CJP. I was fourth on the list. The judges who were superseded did not resign or step down as is done in the armed forces.

When General Musharraf was appointed COAS out of turn, he was number three on the list. Two aggrieved generals resigned. On November 27, 1997, the Quetta bench of the Supreme Court composed of two judges, Irshad Hassan Khan and Khalilur Rahman, passed an interim order in the incidental proceedings of a rent case that the Supreme Court was incomplete as the CJP was appointed out of turn.

The third judge, Justice Nasir Aslam Zahid, reached Quetta in the evening and he also appended his signature. Incidentally, all three judges in Quetta were inducted in the Supreme Court on my recommendation and had been administered their oath by me.Justice Saeeduzzaman Siddiqui passed a similar order in the Peshawar bench. Justice Mukhtar Junejo was also a member of the bench but refused to sit on the bench in that case. Justice Siddiqui took over powers of Chief Justice and issued his own roster and directed that the matter be heard by a full court except the CJP who was restrained and Justice Ajmal Mian who was the intended beneficiary and was conveniently present in Islamabad on one week’s leave as he wanted to defuse the tension and resolve differences among the judges supporting the CJP and those supporting the prime minister.

Orders passed by the Quetta and Peshawar benches were given coverage on TV because they were in favour of the government. On November 29, 1997, the Supreme Court was stormed by a mob. I had advance information that preparations were afoot to send a large crowd of persons from Lahore by Chief Minister Shahbaz Sharif in buses. I informed the DG, ISI, who later told me that the government was not involved.

One evening before the passing of the order by the Quetta bench, Justice (r) Senator Mohammad Rafiq Tarar flew in a private plane of the chief minister along with others and had a meeting with two judges of the Supreme Court from Lahore. He did a faithful job of winning over the judges of the Supreme Court in favour of the prime minister. He was rewarded with the post of the president.

It is surprising that the Supreme Court judges did not raise any objection for nearly three and a half years while I was Chief Justice and suddenly realised that my appointment was unconstitutional because I was appointed out of turn.

It turned out that out of 17 judges, 10 supported the prime minister and six were with me. Out of the 10, eight were appointed on my recommendation and were sworn in by me. All of them have retired from the Supreme Court and some got assignments after retirement. My only fault was that I was appointed out of turn, which was declared unconstitutional by 10 judges of the Supreme Court, who supported the prime minister and voted against their own CJP.

Rule of seniority was laid down in the appointment of judges when the process of consultation was involved. In the appointment of the CJP, there is no consultation as the president can appoint any one of the judges as Chief Justice or appoint a lawyer who has practised for 15 years as an advocate of a high court directly to the post of CJP.

The Constitution can be amended. In fact, that is the only way to remove ambiguity in the language. Nobody talks about the attack on the Supreme Court in November 1997 and how it happened and what was the conspiracy between certain judges and the government. The judges followed the directions of Justice Saeeduzzaman because the government gave its nod. These are the circumstances to be considered while evaluating the judgment in Malik Asad’s case. None of these 10 judges regretted the attack on the Supreme Court.

The whole offensive was filmed by hidden cameras fixed on the premises of the Supreme Court and was seen by the president, the prime minister and the COAS. Photographs were published in newspapers showing federal ministers leading the mob. I sent a reference to the president against Justice Saeeduzzaman Siddiqui on grounds of misconduct but the prime minister refused to act.

President Musharraf in his book ‘In the line of fire’ has stated that the prime minister convinced certain judges to take his side and they passed a resolution against their own Chief Justice and then the prime minister got his party goons to storm the Supreme Court building while the court was in session.

On page 84 of the book it is stated that this matter was discussed at the meeting of the corps commanders and the author (who was himself a corps commander) supported the idea that the president and the Chief Justice be sacrificed and the prime minister be saved. Against such a background with the backing of the prime minister, the federal government and the army, the judgment in Malik Asad’s case is to be considered. It is not fair to say that it is a matter between the judges of the Supreme Court, forgetting and ignoring the conspiracy and the attack on the Supreme Court.

The 13 judges of the Supreme Court, who heard the case of Chief Justice Iftikhar Chaudhry, can also consider the doctrine of necessity and relevant case law on the subject and bury the hatchet for ever. They can let ambiguities in the Constitution be rectified by parliament so that all the institutions mentioned in the Constitution can perform their duties within the parameters laid down by the Constitution to enable the nation to enjoy the fruits of real democracy after 60 years of political waywardness and constitutional confusion.

If they want the senior-most judge to be Chief Justice and the Chief Justice to be appointed and removed by the remaining judges of the Supreme Court or high court, let it be said specifically in the Constitution so that the workload of interpretation by the courts is decreased and time is given to litigation for the common man.

The writer is a retired Chief Justice of the Supreme Court. This article was written before the Supreme Court gave its verdict on Friday.

http://www.dawn.com/2007/07/21/ed.htm#3
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Judging the Chief Justice




By Dr Tariq Hassan
Satureday,July 21,2007

The writer is a lawyer based in Islamabad and a former chief of the Securities and Exchange Commission of Pakistan

March 9 this year may well be the turning point of Pakistan's judicial history. On this fateful day, the self-imposed President of Pakistan summoned the chief justice of Pakistan and effectively removed him from office by declaring him "non-functional". An acting chief justice was sworn in the same day and the Supreme Judicial Council (SJC or the Council), constituted under Article 209 of the Constitution of the Islamic Republic of Pakistan was summoned instantly to hear a hurriedly put together reference against the CJP. This manifestly improper action prompted an unprecedented reaction from the legal community. The ensuing legal battle that has been raging in the Supreme Court of Pakistan has raised many interesting constitutional issues. The purpose of this article is to examine both the substance and process of filing of the reference against the CJP by the president in the context of the relevant constitutional provisions.

The president is empowered to initiate an inquiry against a judge of the Supreme Court or High Court under Article 209(5) of the Constitution: If, on information received from the Council or from any other source, the President is of the opinion that a Judge of the Supreme Court or of a High Court-

(a) may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or

(b) may have been guilty of misconduct, the president shall direct the council to inquire into the matter.

The reference, dated March 9, 2007, filed before the SJC by the president under this Article (Reference), did not allege that the CJP was incapable of properly performing the duties of his office because of physical or mental incapacity. However, it did categorically state that the CJP committed misconduct by using his position to gain undue advantage for his son. As such, the reference passed a guilty verdict against the CJP prematurely. Nonetheless, it made the pretense of having the Council "inquire" into the matter:

The Prime Minister of Pakistan on receipt of information, from several sources, with respect to the conduct of Mr Justice Iftikhar Muhammad Chaudhry, the Chief Justice of Pakistan (hereinafter referred to as, "the learned judge") was pleased to advise the President of the Islamic Republic of Pakistan to "direct" the Supreme Judicial Council of Pakistan, in exercise of its powers under Article 209 of the Constitution, to inquire into the matter and report to the President whether the learned judge has been guilty of misconduct and further, whether he should be removed from office?

The President is required to act in accordance with the advice of the Prime Minister as per Article 48(1) of the Constitution. The President can require the Prime Minister to reconsider his advice but he is duty bound to act in accordance with the advice tendered after such reconsideration. Notwithstanding this general requirement for the President to act on advice of the Prime Minister, the President can act in his discretion regarding any matter in respect of which he is empowered by the Constitution to do so. As noted above, the President is empowered to initiate an inquiry against a judge of the Supreme Court or High Court under Article 209(5) of the Constitution. In fact, it appears from a plain reading of this provision that it is mandatory for the President to direct the Council to inquire into the matter if he is of the opinion that the judge may be incapable of properly performing his duties or guilty of misconduct.

In the instant case, so categorical was the premature pronouncement of guilt against the CJP by the Prime Minister that the President appears to have had no problem in following his advice:

The President of the Islamic Republic of Pakistan is of the opinion that the learned judge may have been guilty of misconduct and therefore, is pleased to refer the question aforementioned to the Council for the purpose of conducting an inquiry into the matter and after such inquiry as it may deem fit report to the President its opinion whether the learned judge has committed misconduct and whether he should be removed from the office of a judge of the Supreme Court and the Chief Justice of Pakistan.

The language used in both the above-quoted paragraphs is noteworthy. While the Prime Minister was "pleased" to advise the President, the President was "pleased" to refer the matter to the Council. One would expect that the head of state and the head of government would ordinarily be "constrained" to take such an action against the head of judiciary in the country. The circumstances surrounding the reference makes one believe that this was not only an improper choice of words but is also reflective of their mala fide intentions.

The advice of the Prime Minister is required to be bona fide. And, the President, in following such advice, whether on his own volition or otherwise, has to apply his own mind to the case and form his own opinion in the matter. There is no evidence of this having happened despite the rhetorical statement to this effect in the Reference. Unlike the Prime Minister's advice, the President's opinion is not based on any independent corroboration or analysis of the facts. No effort appears to have been made by the President or, for that matter, even the Prime Minister to relate the alleged offences to the judicial code of conduct to be observed by Judges of the Supreme Court and of the High Courts issued by the Council under Article 209(8) of the Constitution.

The fact that the President proceeded to act on the following further advice of the Prime Minister is also evidence of the lack of application of mind on his part:

That the Prime Minister was further pleased to advise the President that besides making the reference to the Council the President may simultaneously, in exercise of his constitutional and inherent powers under the Constitution of Pakistan and all other power enabling him in that behalf, direct that as a reference would be pending against the learned judge before the Council it would be neither in the public interest nor in consonance with the norms of judicial propriety that he continues to perform the functions of his office as a judge of the Supreme Court or as the Chief Justice of Pakistan. This would be in consonance with past practices as well. For these reasons, till such time that the reference has been disposed off by the Council and final orders in the matter have been passed, the most senior of the other judges of the Supreme Court shall act as the Acting Chief Justice. The President has been pleased to pass orders accordingly.

The Chief Justice was effectively removed from office by being declared "non-functional" by the President. There is no provision in the Constitution that either supports or warrants this action. The President does not have any express or implied constitutional power or inherent power under the Constitution to declare the CJP "non-functional". He only has the power to remove the judge from office if, after inquiring into the matter, the Council reports to the President that it is of the opinion: (a) that the judge is incapable of performing the duties of his office or has been guilty of misconduct, and (b) that he should be removed from office.

The unconstitutionality of the action to declare the CJP "non-functional" was later sought to be rectified by sending him on "forced leave" under a lapsed legislation whose validity has been challenged in the SCP. Sending a person on forced leave is tantamount to suspension for which there is no provision in the Constitution. The Constitution very clearly provides that a judge of the Supreme Court or of a High Court cannot be removed from office except as provided by Article 209. While under the general principles of interpretation the power to appoint given in ordinary legislative enactments includes the power to suspend or dismiss, this principle is not applicable to constitutional provisions. Not only is there no express provision for suspension of judges in the Constitution, there are also no provisions regarding the suspension of the Prime Minister or the President in case they are faced with a vote of no confidence or impeachment respectively. To hold otherwise, would not only negate the sanctity of the Constitution but also jeopardize the smooth functioning of the highest judicial and executive offices in the country.

The manner in which the CJP affair has been handled is evidence of the patent abuse of power by the President. Calling in the spooks to intimidate the CJP, having them file spurious affidavits, and later withdrawing allegations of judicial misconduct from the Reference are all clear evidence of mala fide presidential actions. What is amazing is the speed with which the operation was sought to be carried out by the perpetrators. Not only was the reference prepared by the Law Ministry, endorsed by the Prime Minister, and approved by the President in less than half a day, an "acting" Chief Justice was sworn in (in the absence of the senior-most judge who was on vacation) and a session of the Council held the same evening as requested by the Reference:

It is requested that this reference may please by taken up as soon as it may be convenient, an inquiry into the matter be commenced and the reference be disposed off as expeditiously as may be possible for the Council.

If it had not been for the unexpected reaction from the legal fraternity, the CJP would have been sent packing home within the shortest possible time. It is the resoluteness of the Bar and the resilience of the Bench that has saved the independence and integrity of the judiciary and maintained the supremacy of the Constitution. This harmonious relationship augurs well for the future.



(This article was written before the announcement of the Supreme Court verdict reinstating the Chief Justice.)

Email: thassan@ijurist.org

http://www.thenews.com.pk/daily_detail.asp?id=65202
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Judiciary’s finest hour




By Khalid Jawed Khan
Satureday,July 28,2007



WHEN the US supreme court gave its verdict on the free speech case of The New York Times v Sullivan in 1964, Professor Alexander Meiklejohn observed that it was a day to rejoice by “dancing in the streets.”

July 20, 2007, was the day when the people of Pakistan could dance on the streets too. It was the day when the Supreme Court of Pakistan finally assumed its role as the custodian of the Constitution and redeemed the constitutional pledge of an independent judiciary.

Such epochal moments occur rarely in the lives of nations. Those who are present at such transforming moments are fortunate, those who are part of it are blessed. It was a shining moment after a long period of darkness. A day posterity will cherish and look back on with honour and pride.

The immediate effect of the judgment of the Supreme Court will be limited to the issue which was raised before the court i.e. the dismissal of the presidential reference and the complete restoration of Chief Justice Iftikhar Chaudhry to his office. Besides this, the judgment may have no immediate consequences. Not much will change momentarily.

Traffic will continue to flow haphazardly on our broken roads, power shutdowns will continue unabated, water taps will remain dry, corruption in government departments and police harassment of the poor and unconnected will not cease, poverty will continue to take its toll on the majority of the populace, patients will continue to languish in government hospitals, and trains and flights will still run late. Life will go on as usual.

Yet something fundamental has changed for ever. Something happened which not only has never happened before but that was unlikely to happen in this country. Our judiciary had been providing support to dictators of all stripes. It was part of the establishment. It was not a people’s court. An independent judiciary was an aspiration.

And then it all changed most dramatically with a single gesture of defiance by a lone courageous judge who had travelled the same old path. He had taken oath under the PCO. He had sanctioned military rule. He was part of the establishment. But at the crucial moment, he rose to the occasion and with a single stroke, threw away the shackles of the past.

Overnight, he came to personify the national conscience and defiance to the dictatorship. He took the first step alone. The legal fraternity followed and then the people joined in. Today, the entire Supreme Court stands behind him. A drop evolved into a stream and the stream into a torrent.

In the past, the Supreme Court termed dictators as usurpers but long after they were gone. For the first time in our history, the judiciary has confronted a powerful dictator in uniform and called his bluff. The message from the Supreme Court is unmistakably loud and clear. Gone are days when dictators took the judiciary for granted and extracted legitimacy for their usurpation of power.

With its order, the Supreme Court has not only removed the restraints against the Chief Justice of Pakistan, it has finally restored the rule of law. The message is very clear. It is the law and the Constitution and not the individual, however, high, mighty or well-armed he may be, that will prevail. An independent judiciary is no longer a constitutional commitment or a dream, it is a self-evident reality.

The judgment of the Supreme Court and the restoration of the Chief Justice of Pakistan not only rang the death knell for the presidential reference against the Chief Justice, it has also poured cold water on the schemes hatched by General Musharraf to get himself re-elected in uniform from the present assemblies in their dying moments. Now at last General Musharraf will have to think about retirement long after the date on which he should have retired.Others with Bonapartist ambitions can forget about legitimacy from the Supreme Court.

The doctrine of necessity has finally been buried. The age of martial laws is over. The government can no longer sell national assets for peanuts. The intelligence agencies cannot pick up people and remain silent about their whereabouts. They will have to come clean. The Chief Election Commissioner can now proceed to hold free and fair elections, secure in the knowledge that an independent judiciary stands guard over his constitutional mandate.

The judgment heralding the independence of the judiciary will not only restore the constitutional balance amongst different institutions of the state, it will act as a bulwark against injustice for ordinary citizens. It is for this reason that ordinary people have a feeling that they are no longer voiceless and powerless. They know that their cries of distress will not go unheard.

Now in the remotest of villages if a girl is raped or a poor villager displaced, they would know on whose door to knock. The perpetrator, however powerful or well-connected he may be, will be summoned and called to account for his misdeeds. That is what a people’s court is all about.

This is a defining moment for the nation but like all defining moments it carries promises as well as dangers. It carries the promise that an independent judiciary will maintain a constitutional balance amongst the different organs and institutions of the state and also provide relief to the poor and downtrodden. It will hold the government to account and compel it to act according to the law and fulfil its obligations vis-à-vis the people. It will no longer sustain the usurpation of power and will rein in the intelligence agencies.

It is a moment of triumph and victory for the judiciary and the people. But it is still early. The day has still to come. It is fragile like a drop of dew. It requires vigilance and care. It is the beginning of a long and arduous journey which is full of pitfalls. Nothing is more intoxicating than absolute victory. But each victory carries in itself the seeds of destruction. Thus, prudence, caution, restraint and magnanimity are required to confer longevity on the new order about to dawn.

While the legal community and people must rejoice at this time of triumph, this moment should be captured in its essence so it lasts, lest it is lost for ever in euphoria. It should not be treated as a defeat for anyone. We need to take all the institutions of the state along.

This includes the most powerful institution of the state i.e. the army. The judgment is not and should not be treated as a defeat for anyone, least of all the army which is a national institution. It, too, needs to evolve into a people’s army, one that is not hitched to personal ambitions and to the fortunes of one man.

The army must reflect the aspirations of the people and serve them. Its strength lies not in defiance but in subordination to the Constitution and a genuinely elected civilian leadership. It must protect the borders and fight the enemy, not the citizens. It must act as a professional army serving the nation and not running it or its own business empire.

The intelligence agencies must remain vigilant and active but against the country’s enemies and should not snoop in the affairs of its judges, lawyers, politicians and citizens. The agencies have no business to interfere in politics and manipulate elections. It destroys their morale and professionalism.

All this is possible without revolt, bloodshed and violence and through a peaceful process. We don’t need a civil war to achieve it. This is evident from the judgment of the Supreme Court.

http://www.dawn.com/2007/07/28/op.htm#2
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