| July 29, 2007 | Sunday | Rajab 13, 1428 |
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Our healers and soothers
THAT most foolish of exercises, universally condemned and derided for its obvious mala fide, the inspired-by-whoever move against Chief Justice of Pakistan Iftikhar Mohammad Chaudhry thankfully played itself out nine days ago and hopefully we can now regain some type of normality in our crisis-laden, chaotic existence.
It is too soon to say whether the questions that arose during that unnecessary interruption in on-going political life will ever be answered. Will they just be left hanging over our and the Chief Justice’s heads? We will have to await the detailed judgment to be delivered by the Supreme Court to know.
The whole matter of the presidential (prime ministerial?) reference against Justice Chaudhry has been given vast coverage in the international press. Once again, it has been adverse publicity for the besieged state of Pakistan and for its great survivor, President General Pervez Musharraf. He must hope that his recently appointed press spokesman, Rashid ‘Eagle’ Qureshi, can achieve some damage control and pull off a reasonably successful salvage operation. The general is in dire need of a modicum of good news.
Our large and rich neighbour has faithfully followed the travails and travels of Chief Justice Chaudhry and the consecutive 43-day hearing of Justice Chaudhry’s petition against the reference so lackadaisically filed against him. Much comment has of course been recorded after the handing down of the short order on July 20.
The Indian Express on July 24 carried a column by the former attorney-general of India, my old friend Soli Sorabjee, under the heading ‘And justice is reborn’, with the sub-titles ‘The Pakistan Supreme Court takes on the military regime, rules against a sitting military ruler. There is public acclaim for the judgment. So what are the implications?’
The title ‘And justice is reborn’ takes us back to Roedad Khan’s book ‘Pakistan — A dream gone sour’ (pub OUP 1997), chapter 14 of which is titled ‘Supreme Court reborn’ — reborn when the judgment in what is known as the ‘Judges Case’ was handed down on March 20, 1996.
Relevant now in Roedad’s book is the listing in an appendix of the seven references filed in court by President Ghulam Ishaq Khan dealing with the corruption of dismissed prime minister, Benazir Bhutto.
Back to Soli — he opens up by rightly stating that our Supreme Court “has a mixed record.” Indeed it has, yo-yoing between “sturdy independence” and “undue deference” to our military adventurers. He cites as “outstanding” the judgments handed down in matters of the dissolution of the National Assembly by President General Ziaul Haq in 1988 and the dismissal of the Nawaz Sharif government in 1993, both judgments having been celebrated in the Supreme Court of India in the Bommai case which successfully challenged the dissolutions of legislative assemblies in certain Indian states.
“In the view of some legal commentators, the Pakistan Supreme Court has of late been in the doldrums,” though that remark could be challenged in the light of Chief Justice Chaudhry’s suo motu activities with regard to our ‘disappeared’ and to the attempted further degradation of the country’s fragile environment prior to his 134 days in suspension, on forced leave, and non-functionality.
To quote one observation made by Soli: “One of the issues raised before the Supreme Court was accountability of the Chief Justice of Pakistan. The court observed that it had never been anybody’s case that the Chief Justice was not accountable and hence the issue did not require adjudication.”
Good; and this should satisfactorily answer those citizens who are perturbed as their feeling was that the Supreme Court had implied, to their minds, that the Chief Justice was out of the accountability net.
To him, interesting features of the judgment: “Justice Khalilur Rehman Ramday observed that ‘it would be the endeavour of the court to let people and the country come out victorious because individuals really mean nothing to us.’ Justice Ramday criticised an irresponsible statement by a ‘very responsible person’ that the real tussle was between the judiciary and the armed forces. He said, ‘all these institutions are very precious and very dear to us…Putting these institutions on a warpath is highly deplorable as we are not competing with each other but supplementing. The job of the judiciary is very different from (that of) other institutions. We are healers and soothers. People come to us with irritants and we remove their irritants by offering peace to the ones who suffered the most. The judiciary is not here to monitor or supervise but to supplement towards the national goals and objectives’.”
Do we know what are these goals and objectives?
What came in for great praise and the suggestion that the example be emulated by the Indian supreme court when hearing cases was the fact that the case was heard on a day-to-day basis without interruption and that the judgment was delivered with exceptional expedition.
A refreshing feature of the judgment, to Soli’s mind, was the fact that “the court did not shirk from taking on the military regime and ruled against a sitting military ruler and in effect buried the doctrine of necessity.” He refers to the “heroic struggle” of the legal fraternity, and of the “commitment and indomitable spirit” of those who stood up to represent Justice Chaudhry.
And, “the most remarkable feature is the universal public acclaim for the judgment which has renewed public confidence in Pakistan’s Supreme Court. Justice is rooted in confidence. The authority of the judiciary, the weakest branch of the state, lies in public confidence in its functioning…General Musharraf was extremely ill-advised and made a fatal mistake in taking on the Supreme Court. It behoves him to accept the judgment and fully implement it. All well wishers of Pakistan and persons who cherish an independent judiciary and the rule of law heartily welcome this path-breaking judgment. Three cheers, indeed, for Pakistan’s Supreme Court.”
To the final sentence, and so say all of us.
One question asked by the bench that heard the Chief Justice’s petition was whether the president had ‘applied his mind’ to the reference, whether he had thoroughly vetted it, checked it for veracity, verified the facts as laid out, and so on and so forth.
Now, the obvious answer to all this is no, because Musharraf is not a stupid man — he may sometimes be hasty in his actions — but over the seven years he has been in charge of this country he has shown that when necessary he can apply his mind. Whether this application has always turned out well is a moot point, considering the state in which the nation now finds itself.
However, if the general has learnt one lesson from his disastrous March 9 exercise, it must be that he cannot rely on his spooks, those he keeps about him for any sensible advice. He cannot take the word of his so-called advisers, his ministers, or his administrators without sitting back and thinking.
One wise comment made in the foreign press shortly after March 9 was that ‘good generals know when to retreat.’ But absolute power had taken its toll. He was not the same man after 3/9 who had acted the day following 9/11.
Now, may the people make an appeal to Chief Justice Chaudhry that he hear Human Rights Petition No.19 of 1996, filed in the Supreme Court by Air Marshal (rtd) Asghar Khan concerning the criminal distribution of the people’s money by public functionaries for political purposes.
He could also re-open the matter of the storming of the Supreme Court on November 27, 1997, instigated by the then prime minister, Nawaz Sharif. And lastly, inquire into the killing of some 50 people who were mercilessly gunned down on the streets of Karachi on May 12, 2007 (after all, he was the causa causon).
Email: arfc@cyber.net.pk
