WHEN one is feeling somewhat down in the dumps one tends to remember old friends, and particularly the wise ones who are no longer around.
Of late, much on my mind has been my old friend Amir Chinoy, a soft spoken and amiable man who was dispatched by his father, Sir Sultan Chinoy, from Bombay to Karachi – to Jinnah’s Pakistan – to get going and start his life afresh.
For years he marvelled at the way things happened in this God-gifted man-made country and almost every day he would be prompted by some odd incident to shake his head and murmur, “Nothing you can do; Allah meherban tau gadha pehlwan.” This was said entirely without any derogatory feeling towards that most lovable animal in question.
And from my late lamented eccentric friend, Abo Kureishi came a most excellent piece of advice: “Never consider a politician dead, even if you have seen him buried, until you attend his chehlum.”
Both these men were intelligent, realistic, and pragmatic with whom anyone could have a reasonable, enlightening discussion.Repeated and repeated in my columns over the many years is the first advice Mohammad Ali Jinnah gave to the members of his new country’s legislators when he addressed the constituent assembly on Aug 11, 1947: “The first observation I would like to make is this. You will no doubt agree with me that the first duty of a government is to maintain law and order so that the life, property and religious beliefs of its subjects are fully protected by the state.” As we all know too well to our chagrin, for 60 years the state has never been able to protect its citizens, their property or their religious beliefs – in fact, on the contrary, they have often come under attack by the state. Such is the psyche of those who have ruled this land.
President General Pervez Musharraf’s woes began on Mar 9, 2007, the day he attempted to humiliate the Chief Justice of Pakistan who he himself had chosen and appointed and who had taken the oath under his PCO, and continued on after he later allowed the servants of the state to physically rough up the good judge. Since those sorry days he has stumbled and bumbled, and whatever he may say about the now dismissed Chief Justice the world at large will not believe him.
Now let us see how our lords and masters in Pakistan deal with the appointment of their judges. They are all appointed on a personal basis, based on the personal whims of the appointer, and they can also be removed in one moment if they do not live up to expectations. We can learn, and we should learn from how judges are appointed by our mentor, our provider, the mighty US of A.
As we are informed, under Article II of the American constitution the President has the power to nominate justices who are then appointed “by and with the advice and consent of the Senate.” As a general rule, presidents nominate individuals who broadly share their ideological views. In many cases, a justice’s decision may be contrary to what the nominating President expected.
One famous instance was the case of Chief Justice Earl Warren. President Dwight ‘Ike’ Eisenhower thought he would be a conservative judge, but Warren’s decisions are arguably amongst the most liberal in the history of the US Supreme Court. Eisenhower later called the appointment ‘the biggest damn fool mistake I ever made’.
The Constitution does not set forth any qualifications for the appointment of judges so the president may nominate anyone to serve. However, that person must receive the confirmation of the Senate, meaning that a majority of that house must find the person, man or woman, to be a suitable candidate for a lifetime appointment to the highest court of the land.
Musharraf’s misfortune now seems to be that he will at some stage be forced to sound the retreat. Let it at least be a glorious one!
Now a word for the likeable born-again fortunate Mian of Lahore (does he still hanker after the title ‘amir-ul-momineen’?) His years of living a luxurious life in the Holy Land may have taught him something and with his new handsome head of hair maybe has come a new form of wisdom. He is all for restoring the judiciary – that is bringing back the removed judges who took their oath under Musharraf’s PCO of 2000 and removing those newly appointed under Musharraf’s PCO of 2007.
In his zeal to bring in an ‘independent judiciary’ has he forgotten how in 1997 he suggested to Gohar Ayub that the then Chief Justice of Pakistan, Sajjad Ali Shah, be arrested and imprisoned? Has he forgotten how later that year, he had his own Supreme Court raided by his party goons because CJ Shah had brought a contempt case against him?
The Mian’s record as to governance and corruption is not shining (perhaps marginally less dismal than that of Asif Zardari). Do he and his brother Shahbaz Sharif remember how they borrowed money for their Hudabiya Paper Mills from an investment fund in England? In their arrogance they had signed a loan agreement which was governed by English law. When the Al Towfeek Company asked for its money back, the Mians procrastinated and employed the usual delaying tactics as applied in their native land.
Al Towkfeek went to court in London in 1998 and the order of a master (the masters of the various divisions of the high court deal with routine matters without a judge having to be bothered) was served upon the Mians of Lahore asking them to pay up. They filed an application against the order, this was set aside by a high court judge, the laws of England prevailed and without any further hesitation (total time involved some 18 months) the lenders’ claim was satisfied. Millions of dollars were repaid by the Sharif family, but extraordinarily they asked, and the lenders and the court agreed, that the mode and manner of repayment of the millions of dollars not be disclosed. Apparently, a ‘friend’ obliged with the repayment.
The point here is — have the brothers learnt a lesson from English law? Have they learnt that the law must apply if there is to be justice, fair play and equity. They could easily have been on the other end – they could have been the lenders.
If Nawaz is all out to restore whatever judiciary we did have he will need to also do a lot of reforming if we are to get anywhere near democratic standards of an independent and free judiciary. European and American judges set themselves quite different standards from our judges because the leadership of the country expects it of them. Our judges are so browbeaten and insecure, as matters stand, that it would not be fair to expect such standards of them.