| September 14, 2002 | Saturday | Rajab 6, 1423 |
The general’s audience
Within five years, the judiciary itself has thrown the much-orchestrated Judges Case out of the window, and has reverted to the pre-Judges Case era when the policy of pick and choose was in vogue, senior members of legal fraternity have said.
Mohammad Akram Sheikh, senior Supreme Court lawyer, who was the president of the Supreme Court Bar Association when the apex court, headed by indomitable Justice Sajjad Ali Shah, had presided over the bench, which delivered the Judges Case, said the recent judicial appointments were “unfortunate”.
He said the Supreme Court, which had delivered the judgment on March 20, 1996, should decide whether to keep it or not. He was of the view that if the case law laid down in the Judges Case was impracticable, it should be wrapped up to avoid embarrassment to the judiciary as appointments were made in violation of that case.
The appointment of Justice Chaudhry Iftikhar Hussain as chief justice of the Lahore High Court, superseding Justice Fakhrunisa Khokhar, long serving woman judge of the LHC, negated the Supreme Court’s recent ruling on the principle of seniority, he said.
The Supreme Court in the Judges Case had buried the ad hocism by holding that no ad hoc judge could be appointed, he said. Now Justice Karamat Nazir Bhandari has been appointed an ad hoc judge when there are already 17 judges on the bench.
On July 5, 2002, he said, the Supreme Court in its decision on the petition of Supreme Court Bar Association and others, challenging the appointment of junior judges of the LHC to the Supreme Court, had held that the principle of seniority as enunciated in the Judges Case, was only applicable to the appointment of chief justices of Pakistan and the chief justices of high court.
He said just two months had passed when the executive had again violated it by appointing a junior judge as chief justice. He asked that as to where the “legitimate expectancy” of the senior judge to be appointed as chief justice had gone.
In the recent judgment, the Supreme Court had held: “We are of considered view, the scope of the principles of seniority and legitimate expectancy enunciated in those cases (Judges Case and Malik Asad Ali Case) is restricted to the appointment of the chief justice of a high court and the chief Justice of Pakistan and these principles neither apply nor can be extended to the appointment of judges of the Supreme Court.”
Habib Wahabul Khairi, on whose petition the Judges Case verdict had been delivered, also said time had come when the full court comprising all the judges of the Supreme Court should sit and look into the violation of the Judges Case.
He said it was unfortunate that the case, which had laid foundation for real judicial independence, was being flouted by the executive.
Mr Khairi, head of Al-Jihad Trust, said that the appointment of a junior judge of the LHC as chief justice, was a blatant violation of the Judges Case. He said the executive was reasserting itself with the support of elements in the judiciary.
The present chief justice of Pakistan, he said, had become the chief justice only because of the Judges Case and if he continued succumbing to the desires of the executive, the applicability of the seniority principle would also be abandoned in the Supreme Court as well.
QUESTION Time Pakistan’s audience, by virtue of the programme being conducted in English, has to come from a relatively limited pool of people. Other than that, since the programme is filmed in Karachi, that pool is not even a representative sample of the country’s urban centres of population.
Then there is also the issue that its moderator — the Cambridge and Harvard educated Mahreen Khan — seems critical and sceptical of the abilities of Pakistan’s political parties but does not have the same views as far as the military is concerned.
At least, that’s the sense she seems to give off when conducting the programme. Now there is probably nothing wrong with being critical or even overly critical of politicians in Pakistan — specially if you look back at what has happened in the past 14 years — but it gets to be a problem when this view completely ignores the shenanigans of the men in khaki.
The BBC, which has commissioned this 13-part series from Pakistan, modified its usual Question Time format for President Pervez Musharraf’s appearance on the show. He was the only guest, and there were no other panelists or moderators other than Ms Khan.
According to press reports prior to the show, the audience members were thoroughly screened for security reasons. The quality of the questions was not bad at all, with several pointed questions asked of the president. However, in many cases the answers left a lot to be desired, though the audience sitting there didn’t think so.
For example, a very valid question from a young man asked the president on the interfering role of the ISI in the country’s political system to which Gen Musharraf replied that the governments should be blamed for this since the ISI worked under their direct control. Now it is true that Zulfikar Ali Bhutto was the first one to make the ISI responsible to the office of the chief executive but there have been numerous reports — some even by former prime ministers — that the agency was responsible not to any civilian but rather to the army chief. In fact, the reputed think-tank International Crisis Group recently said in a report that if anything, the ISI was subservient to the army chief.
One young woman sitting in the audience was then allowed to ask a question. But instead of doing that she, in a rather emotional voice, went on a diatribe against the politicians saying — in fact asking the audience — that what had people like Benazir Bhutto and Nawaz Sharif given to the country and that we all (Pakistanis, that is) should be happy to have someone like Pervez Musharraf around. The audience’s democratic credentials, or lack thereof, can be gauged from the fact that many applauded warmly as this young woman finished off her ‘question’.
True, Benazir or Nawaz perhaps didn’t give the country much but nothing could have been worse than what Ziaul Haq did to the country, a point that was conveniently ignored. In any case, just because a set of politicians is bad does not mean that a country’s military should keep taking over because if that were the case then many European nations would till be military dictatorships.
Perhaps some sociologist or anthropologist in America or Europe can do a thesis on what causes an individual who is otherwise socially progressive and quite liberal or moderate in his or her thinking, to become so appreciative of a military dictator. It is precisely such people who will be the first to also point out to you that the press or the electronic media has never been freer and if it weren’t for Gen Musharraf, journalists wouldn’t be criticizing the government with such abandon. However, they forget that such criticism could be found in the country’s press during either Ms Bhutto’s or Mr Sharif’s government. In any case, the issue isn’t: look how tolerant a military government is of media criticism but whether we should at all have a military government.
The gist of what the president said was that politicians were the ones to blame because they kept going to the army, asking it to intervene to overthrow the elected government. It seems that what the general was also saying was that in such cases the army never had any choice but to acquiesce to the demands of these most unworthy politicians.
Well, why did the army chiefs who did eventually intervene have to listen to and act upon, what the politicians were telling them? Why couldn’t they tell Benazir or Nawaz (both hypothetical examples) or whoever went to them that ‘look, you please sort out your problems yourselves and leave us to defend the national frontiers’? And because of these pestering politicians — because that’s the way he constantly seems to talk about them — Gen Musharraf has deemed it fit to set up a national security council and in one day amend the constitution 29 times. Clearly, the mess wouldn’t have been exacerbated had the army — whenever it was approached by the politicians — chosen to stay out of the fray.
Gen Musharraf almost sounded flippant when in response to a question on why his government had chosen to do nothing about the controversial and much-maligned Hudood Ordinance, he said that he only had three years to reform the country and if he were given seven more (and here one is to assume through further PCOs and constitutional ‘packages’ he could do a lot more). Even to this, many in the audience laughed as if staying on for ten years as unelected president of a country was something to laugh about.
Question Time Pakistan comes every Friday at 10.30 pm on BBC World.—OMAR R. QURAISHI
(Email: omarq@cyber.net.pk)