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| March 17, 2007 | Saturday | Safar 27, 1428 |
Wages of poverty
Banning polythene bags
The judiciary at the receiving end
SINCE General Musharraf’s takeover on October 12, 1999, there have been a large number of judicial casualties. The first blow was rendered by the Oath of Office (Judges) Order No.1 of 2000 that required judges to take an additional oath, to “abide by the provisions of the Proclamation of Emergency”. There being no such requirement in the Constitution of the country, nearly half of the judges of the Supreme Court correctly refused to take this oath. More then half a dozen judges of the High Courts took a similar stand.
GOING by the government’s behaviour, what the nation should worry about is not so much the outcome of the ‘non-functional’ chief justice’s case as the fate of civil society. Some of the developments appear to be portents of a darker scenario with a possible flashback to Ziaul Haq’s days. The media stands in danger of becoming the regime’s whipping boy: a popular talk show on a TV channel has been forced to discontinue, yesterday the channel’s offices and those of The News in Islamabad were ransacked by the police, and two TV channels were made to go off air on Tuesday because they showed scenes of a police baton charge on protesting lawyers in Lahore. The protests were later allowed to be aired but without the ‘objectionable’ footage. The shot showed a bleeding lawyer being removed from the scene for medical treatment. The Lahore High Court has also issued notices to the Pakistan Electronic Media Regulatory Authority to explain its position with regard to two TV channels which a petitioner alleges were bringing the army and the judiciary into disrepute while covering the chief justice’s case. What objection the government could have had to the event’s normal coverage is beyond comprehension.
The situation would not have taken the dramatic and unfortunate turn it did on Tuesday if the government had behaved normally and let due process run its course. According to its own version, Chief Justice Iftikhar Mohammad Chaudhry had never been under house arrest, and that the stories about his telephone and cable TV being cut off and the children’s forced absence from school were fabricated by the press. However, the government either kept his status as a free citizen deliberately vague or took actions that left no doubt in the minds of neutral observers that Chief Justice Chaudhry’s freedom had been curtailed. Come Tuesday, the authorities lost all sense of balance and proportion when Chief Justice Chaudhry was to go to the Supreme Court to present his case before the Supreme Judicial Council. If the government had not lost its nerve, his going to the SJC hearing would have been a non-event, and the focus would have been on court proceedings. The government should have realised that the legal community was bound to be jittery irrespective of how one looked at the personality of Chief Justice Chaudhry. Instead, for reasons that defy common sense, the authorities turned parts of Islamabad into a fortress. Things would have been far better if Chief Justice Chaudhry had been allowed to go to the court along with his sympathisers without any unpleasant incident, it being left to him whether he wanted to walk or be driven to the court.
The government did not anticipate the legal community’s strong reaction to the chief justice’s treatment by the army chief and head of state. Today, the country’s lawyers are showing an astonishing degree of unity that cuts across political loyalties, and it is they and not the politicians who are in the forefront of the protests. This testifies to an awareness in the legal community, the intelligentsia and the media that the CJ’s case is not a political issue. It is a test case where the nation should gird up its loins to safeguard freedoms that are available to it, especially since a nervous government, feeling under siege, may move to curtail civil liberties as evidenced by the recent curbs on the media and Friday’s unfortunate events in Islamabad.
THE giving away of a newborn for adoption by parents in exchange for the adopting couple’s settling the maternity hospital bill in Tando Adam the other day is an appalling reminder of the levels of poverty prevailing in the country. This was the impoverished couple’s tenth child, who said three of their children had died for their lack of means to support a family. For countless others like this illiterate, medically unwell, undernourished and utterly poor couple life, remains a daily drudge doomed to failure. The virtual absence of social and welfare services in the public sector has placed a huge number of people at the mercy of providence. They have no regular income or shelter, nor a hope of bettering their lot. Even in the big cities, the sight of hungry men, women and children jostling for a morsel of food distributed by the better off at shrines and street corners is not an uncommon sight. Conditions in the rural hinterland are far worse, forcing the young to migrate to the cities in search of a livelihood. Independent sources place the percentage of people living below the poverty line in March, 2007, at 32 per cent. Government claims place the figure at no less than 27 per cent — among the lowest even in South Asia.
Poverty not only forces the afflicted people to make harrowing choices. It also breeds crime, disease and unrest in society which together translate into depressing socio-economic indicators. The beneficiaries of the 6.9 per cent growth rate registered by the economy last year are relatively few, while many of the poor have become poorer as a result of high inflation during the same period. Even the salaried middle class and those on a fixed income have been hard hit by rising inflation. The educated youth fare no better when it comes to employment, as economic growth has to sustain itself before it can trickle down to the masses. These conditions call for creating more job opportunities as part of the government’s poverty alleviation programme if the frightening trend is to be reversed and people’s misery lessened.
THE leap from the drawing board to enforcement of policy can take a long time in Pakistan. Given the official propensity for words rather than action, it becomes doubly important to give credit on the rare occasions where it is due. Enforcement may have been late in coming, but it is heartening to note that the authorities in Karachi are finally taking steps to eliminate the manufacture, sale and use of polythene bags that are less than 30 microns thick. The crackdown that began on Thursday has already resulted in the confiscation of polythene bags from wholesalers, vendors and shopkeepers. The initial leniency shown to offenders — in the sense that nobody was arrested and locked up — is also a welcome departure from past practice. Many a public campaign in Karachi has started with great fanfare, even high-handedness, only to fizzle out after a few days. In the context of polythene bags, a more sustainable and consumer-oriented approach is required. ‘Shoppers’ have become ingrained in the public psyche because of their convenience and cost-effectiveness, and it will take a concerted drive to make the public ditch them in favour of more environmentally-friendly alternatives.
Polythene bags choke sewers and drainage lines and are partly responsible for the sanitation problems arising from overflowing gutters. When plastic shopping bags are burned along with other trash, the toxic fumes they release pose a serious health risk, particularly to the young and elderly and those with respiratory problems. Besides raising awareness among users, the government must offer manufacturers incentives to switch over to the production of paper bags and other organic alternatives. Only then can the campaign succeed, for constant policing is not a viable option. Authorities across the country would do well to take a cue from Karachi and enforce the ban on polythene bags that is already on the books nationwide.
Neither the people of Pakistan nor judges were informed why they had been removed. Judges are expected to dispense justice but the treatment they receive from the government is far worse than what may be meted out to an orderly in the army or a peon in government service.
There have also been subsequent casualties in Balochistan, whose judiciary it appears is always at the receiving end. Justice Muhammad Nawaz Marri was gunned down in broad daylight while going to the high court, the first murder of a sitting high court Judge in Pakistan. His family lodged an FIR against certain sardars, but the army was then supporting sardars (a legacy of General Zia) and a lackadaisical investigation that continues to grope in the dark followed while the killers roam free.
Justice Tariq Mahmud, as judge of the high court who was also a member of the Election Commission, questioned whether the election laws sanctioned the referendum which General Musharraf decided to hold in April 2002. As a result, a situation was created compelling Justice Mahmud to resign. Incidentally, the general himself later stated that the referendum was a mistake.
Chief Justice Iftikhar Mohammad Chaudhry took the loyalty oath and was one of the two remaining judges of the Bench who granted General Musharraf the right to govern for three years, yet the general has now proceeded against his benefactor. If he succeeds in ousting the CJ he would have the trophies of two Chief Justices of Pakistan, five Supreme Court judges, eight High Court judges on the wall of his Army Camp Office. He will also leave a legacy of failing to bring to justice those who murdered Justice Marri.
The famous meeting of March 9 with the Chief Justice shows General Musharraf in military uniform. This act alone taints the entire process of judicial accountability. The foremost issue and one going to the heart of the matter is the constitutionality of General Musharraf in army uniform summoning or meeting the Chief Justice. The army chief has no constitutional position and is subordinate in protocol to the Chief Justice of Pakistan.
The treatment meted out to the Chief Justice is a litany of abuse, maltreatment, persecution and basic violations of his constitutional fundamental rights. Every law student knows that no citizen of Pakistan (including chief justices) can be “deprived of life or liberty” (Article 9), “detained” (Article 10), “denied the right to consult and be defended by a legal practitioner” (Article 10). The Constitution also guarantees to every citizen, “inviolability of dignity” (Article 14), “freedom of movement” (Article 15) and “freedom of speech and expression” (Article 19).
It appears that the Chief Justice has been punished before the process of hearing the case against him even began and is now being subjected to torturous treatment. “First he punished before he heard, and when he heard his denial, he compelled the party accused by torture to confess” (Virgil, Aeneid, c.19 B.C.).
The details of the alleged misconduct by the Chief Justice continue to be under wraps in the era of transparency, ‘soft image’ and ‘enlightened moderation’. The reason why such matters are not publicly disclosed and the Supreme Judicial Council’s hearing to be held in camera is simply to protect the reputation of the person being inquired into. In this case the Chief Justice himself claims no privilege nor insists on in-camera proceedings, but instead wants an open hearing of his case. Under such circumstances the government’s inexplicable insistence on in-camera proceedings is a telling comment.
The timing of the reference is also significant. Justice Rana Bhagwandas, the next in seniority after the Chief Justice, and whom the Constitution requires to be part of the SJC is out of the country for a short period. The government knew the dates of his departure and return, but neither submitted the Reference before his departure nor waited for his return. Surely an explanation is due from the government but none has been forthcoming. “It is the duty of a judge to inquire not only into the matter but into the circumstances of the matter” (Ovid, Tristia c.9-17 B.C.).
Since the government is not disclosing the contents of the reference, no comment can be offered, which in any case would not have been appropriate. One may however comment on the “Open Letter to the Chief Justice of Pakistan” written by Naeem Bokhari on February 16 and which appears to be the precursor of the reference.
Is Naeem Bukhari a very courageous man or did he have the support of the government and the president before he wrote the letter? Let us give him the benefit of the doubt, even if he does not give the Chief Justice any, and marvel at his courage and resolve because one has yet to come across a practising lawyer who would attack the person of the Chief Justice and in such a manner. But then the plot thickens.
One Moulvi Iqbal Haider filed a contempt petition against Naeem Bokhari alleging that his letter amounted to contempt of the Supreme Court. He describes himself as the “head of General Pervez Musharraf Himayt Tehrik” and is widely known as an agency man. Now the question that arises is, why of all the people did he file the petition and having done that, why did he withdraw it? One plausible explanation is that he was unaware of the planned reference and probably wanted to curry favour with both the Chief Justice and the president. If his petition had proceeded, the reference would have stumbled because the subject matter of the reference (which presumably borrows from Naeem Bokhari’s open letter) would then have been before two forums, the Supreme Judicial Council and the Supreme Court of Pakistan. This probably would have effectively wrecked the reference.The Supreme Court has judicial powers which the Council does not. The Supreme Court’s decisions are “binding” on every person and every court (Article 189) and all “executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court” (Article 190). The Council, on the other hand, has no judicial powers and is simply required to “inquire into the matter” of the judges’ misconduct and submit its report to the president, who then “may remove the Judge from office” (Article 209(5)(b) and 209(6)(b)). The Supreme Court has previously held that, “Most judges may feel that by having good terms with the government in power they can become the Chief Justice. This will destroy the institution and public confidence in it. It is, therefore, very important that the Chief justice should not be pliable and he should act independently”.
The Chief Justice and his brother judges in their generosity and probably with a view to building a more tolerant society by examples chose to ignore Naeem Bokhari’s outburst, not knowing then about the planned reference.
Naeem Bokhari’s open letter accuses the Chief Justice of “discrimination in your court” and cites incidents in support of his contention. Firstly, he states that the Chief Justice had announced that the petition filed by Federal Minister for Parliamentary Affairs (Dr. Sher Afghan Niazi) had been dismissed in court but when the written order came he had been granted leave. Secondly, he takes umbrage because the Chief Justice shows “aggression” to most lawyers but such “aggression is not for everyone” and “when Mr Sharifuddin Pirzada appears” the Chief Justice’s “demeanour is not just sugar and honey” but “obsequitious to the point of meekness.” Even if these allegations are presumed correct they damn the government as it establishes that very senior members of the government have misused their position. At the very least, if the government believed in the allegations, Dr. Sher Afgan Niazi and Mr. Sharifuddin Pirzada should have been sacked. And to further ensure that in future such indulgence is not shown, private practice by lawyers who either represent the government or hold cabinet positions be forbidden to do that.
Naeem Bokhari also joins issue with the Chief Justice on using police escort and expresses his “belief that the Chief Justice would rise in the eyes of everybody if he walked from his residence to the court”. It appears that in this matter the Chief Justice took Naeem Bokhari’s advice. But everyone saw what happened to the CJ on Tuesday at hands of his police escorts when he tried to do that.
The government has destroyed Pakistan’s image in the comity of nations and made the country a laughing stock. What a sad fate to befall a country founded by one of the greatest legal and constitutional minds of the time.
The government’s attack on the judiciary is an attack on each and every citizen because it seeks to subjugate laws to the whims of autocrats. “Unlimited power is apt to corrupt the minds of those who possess it; and this I know, that where law ends, tyranny begins!” (William Pitt, 1770)