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Not motivated by politics
(Dawn, opinion page, May 11, 2007)
By Muneer A. Malik
THE reference against the Chief Justice has placed government spokesmen in a tricky spot. Early on, they realised that a direct attack against the Chief Justice would be imprudent. It would contradict their stated position that the president had simply put certain material about the Chief Justice before the Supreme Judicial Council for assessment and determination, and that the government was entirely neutral in the matter. How then would the government go on the offensive?
It was Information Minister Muhammad Ali Durrani, that fearless defender of downtrodden dictatorships, who arrived at an ingenious solution. Why not target the lawyers instead? After all, the whole fuss had been created by the bar associations (albeit fuelled by the media). If the legal community could somehow be discredited, the media would lose interest and the opposition parties would get distracted by other issues.
Unfortunately, the resultant government-generate d propaganda aimed at discrediting the legal community has been blindly adopted by some in the ostensibly independent media. Even reputed columnists of this paper have chosen to attack the acts of the protesting advocates rather than the cause of these protests. While devoting all its energy to the single-minded defence of the Chief Justice, the legal community neglected to explain its own actions to the public and left itself open to attack. This article aims at remedying that failure.
The first charge against the bar associations is that they have unduly politicised an issue that should, more properly, be a subject of pure constitutional and judicial debate. Let there be no doubt on this score; our struggle is political to the core.Our struggle is about the independence of the judiciary and the preservation of the Constitution of the Islamic Republic of Pakistan. These are not arcane legal issues to be dryly debated in closed courtrooms. They are issues that affect the lives of every single Pakistani.
Every citizen has the right to expect that he will live his life in a system based on the rule of law and not the arbitrary whims of a military dictator.
Every citizen has the right to expect that, when he approaches the courts for justice, he will be heard by truly independent and fearless judges and not timid bureaucrats who hold on to their offices at the pleasure of a capricious ruler. When the rulers of the day attempt to snatch away these basic fundamental rights, it is the right and duty of every conscientious citizen to speak out, loudly and clearly, against this outrage.
It is, of course, not surprising that the stooges of a military dictatorship view the word "political" as an insult: to be used to tarnish the image of
any cause or movement that they oppose. Non-democratic rulers loathe any references to politicians or to the masses they represent. The very existence of politicians reminds them of the ugly fact that their own power stems from the barrel of the gun and not the will of the people. But
when I use the word "political" to describe our struggle, I do not refer to party-based electoral politics. "Politics" is a word of Greek origin deriving from "polis" which means "city-state". When Aristotle wrote of "˜ta politika', he meant "affairs that concern
the state and the citizens".
Is the summary removal of a Chief Justice by an army chief not a question that concerns the state and its citizens? We forget, too often, that the Constitution is not a legal document created by lawyers for lawyers. It was a document created by politicians on behalf of the people. It is the embodiment of the people's will as to how they wish to be governed. Questions relating to its preservation and supremacy fall squarely within the political domain. Thus if political parties also wish to register their protest against the desecration of the Constitution and the stifling of the judiciary's independence, they are fully entitled to do so. Rather, if they claim to be democratic parties, they are obliged to do so.
When undemocratic regimes wish to quell public resentment about an unpopular move and stifle all public debate on the issue, they adopt a time-honoured strategy. First, they label the issue as one of exceeding technical complexity that is not fit for public purview. The public is informed that the issue is beyond their comprehension and hence they should abandon open debate on the matter in favour of a decision by "experts" behind closed doors. Then the functionaries of the regime hunker down and wait for the tide of public opinion to pass so they can continue with their destructive agenda unimpeded.
Well, the instant issue is certainly not beyond the comprehension of the people of Pakistan. Every man on the street fully understands that a sitting Chief Justice was removed and then publicly humiliated on the president's orders because he dared to make decisions that were popular with the masses but unpopular with the establishment. And every man on the street is competent enough to express his viewpoint on the matter.
Implicit in these charges of "politicisation" is the suggestion that the legal community is acting on the anti-government agenda of some political parties. The very idea is ridiculous. The bar associations are professional bodies comprising a large number of diverse individuals with a wide range of political opinions and persuasions. All bar associations in all four provinces are united in the current struggle. It would have been impossible for us to maintain this unity had we aligned ourselves with any particular political party. This unity is forged solely on the basis of a common commitment to the independence of the judiciary "” irrespective of any other political beliefs.
This is not an abstract ideal. Unless the security of a judge's tenure is guaranteed, he cannot be independent. When a judge is not independent, he becomes useless to the people. Once people lose confidence in the judiciary, when they perceive it as ineffectual, when they refuse to have their disputes adjudicated by the judiciary and seek to settle them by other means, the descent of the nation into chaos and anarchy becomes inevitable.
One does not have to be an anti-government politician to be disturbed at this prospect and to speak out against it. Members of the bar have been the most vocal in their opposition to the government's maltreatment of the Chief Justice because they are best placed to observe, day to day, its devastating effects. The most frequent litigation in our courts is brought by citizens aggrieved by the acts of the government and its agencies. If this regime's move to remove the Chief Justice is successful, no judge in future will have the confidence to decide such cases solely on the basis of merit and free from all fear of the consequences.
Lawyers are also being criticised for the fact that they have not confined themselves to the issue of the removal of the Chief Justice but have gone on to comment on the illegitimacy of General Pervez Musharraf's military regime. Only a fool (or an apologist for the current regime) could argue that these two issues are not inextricably linked.
The sitting Chief Justice was summoned to the Army House and summarily removed by a uniformed general heading a military junta. Are we, then, supposed to criticise only the effect and not the cause? No doubt, our immediate objective is the restoration of the Chief Justice so that the instant attempt to dominate the judiciary can be defeated. But, in the long-term, the judiciary can only be truly independent in a democratic dispensation, where the rule of law and the Constitution reigns supreme.
We have all respect and reverence for those courageous heroes of the armed forces who risk their lives for the defence of the motherland. But we cannot extend this respect to those who misuse their power to trample upon the Constitution and democratic institutions.
The second charge laid against the legal fraternity is that their boycott of court proceedings on days that the Supreme Judicial Council conducted its hearings caused great inconvenience to litigants.The members of the bar are fully cognisant of the plight faced by ordinary litigants when their cases do not proceed on the scheduled day. We are the ones who deal directly with them and can best appreciate their distress. However, what critics ignore is that the litigant is not there simply to have his day in court. He is there because he wants justice; and only independent judges can provide justice.
The wife of a missing person needs to know that the judge hearing the case is capable and willing to stand up to the government and take on the intelligence agencies and get her husband released. If the bar gives up its struggle and the government succeeds in its attempt to dominate the judiciary, such judges will be a thing of the past.
In the meanwhile, sacrifices are being made all around "” not least by members of the bar; many of whom have given up or cut back on monetarily rewarding law practices to single-mindedly devote themselves to the struggle for the independence of the judiciary. The boycott of court proceedings serves a dual purpose: firstly, it sends a clear message to the government that the entire legal fraternity will strongly
resist any attempt by the executive to interfere with the judicial organ of state. Secondly, it reminds judges that the entire judicial edifice and its
workings are founded upon the guarantee of their independence. Once that independence is lost, you might as well close down the courts.
Also, what the mouthpieces for the government intentionally fail to point out is that the leading cause of judicial delays remains the appalling shortage of judges. A judge of the Sindh High Court can typically expect to deal with at least 40 to 50 cases a day. The position is similar throughout the country. How is he expected to master the voluminous facts and complex points of law and deliver judgments in all the cases within the space of four to five hours?
By way of comparison, a judge sitting in the high court of England hears a maximum of one to two cases in a day. Despite repeated requests from the bar over the last several years, the government has refused to raise the sanctioned strength of judges. The reason is clear; the government does not want to make its own life difficult by raising the level of judicial scrutiny in the country.
What is more, as a direct result of the government's ulterior motives, most of the courts in the country are operating far below their sanctioned strength. For example, the Sindh High Court currently has only 21 judges whereas its sanctioned strength is 28. But there is no hope of appointment of new judges in the near future.
Our Constitution mandates that superior court judges can only be appointed in consultation with the Chief Justice. In the famous case of Al-Jehad Trust (also known as the "Judges case") it was settled that this function cannot be performed by an Acting Chief Justice. By restraining the Chief Justice from performing his functions, General Musharraf has personally guaranteed the prolonged misery of litigants.
Until the Chief Justice is allowed to resume his functions, no new judges can be appointed and the superior courts will continue to be woefully undermanned.It is not out of place to mention here that, in the last judicial year alone, the Supreme Court, under Chief Justice Iftikhar Mohammad Chaudhry's stewardship, decided a total of 23,353 cases thus reducing the number of cases pending adjudication from 38,139 to 14,786. This was hailed as a "landmark achievement" and the Full Court of the Supreme Court unanimously termed it as a "clear manifestation of the commitment and resolve of the Hon'ble Judges under the able leadership of the Hon'ble Chief Justice of Pakistan". Law Minister Wasi Zafar and his cohorts who now support the reference against the Chief Justice would do well to remember this fact before shedding crocodile tears in purported sympathy for the plight of litigants.
The third charge against us is brought by our own. Those poor souls who have become government mouthpieces for 30 pieces of silver or for the lure of high offices are unhappy that the bar associations and councils have cancelled their memberships. The legal profession is not a trade; it is a calling. When joining this profession, one makes a commitment to uphold the rule of law and the cause of justice.
I can only remind my errant learned friends of their professional duty by quoting from the "˜Canons of Professional Conduct and Etiquette' that every advocate
promises to observe:
"Whereas the Rule of Law is an essential feature of a civilised society and a pre-condition for realising the ideal of justice"¦
""¦ And whereas (there is to be) a community of Advocates"¦ dedicated to the task of upholding the Rule of Law and defending at all times, without fear or favour, the rights of the citizen;
"And whereas by their efforts Advocates are expected to contribute significantly towards the creation and maintenance of conditions in which a government established by law can function fruitfully so as to assure the realisation of political, economic and social justice by all citizens;""¦No client, corporate or individual, however powerful nor any cause, civil or political, however important, is entitled to receive, nor should any Advocate render any service or advice involving disloyalty to the law whose ministers they are, or disrespect the judicial officer, which they are bound to uphold"¦ nor indulge in deception or betrayal of the public. When rendering any such improper service or advice the Advocate invites and merits stern and just condemnation." (emphasis added)."
When they chose to turn their backs on the legal fraternity and abandon all pretences of serving the rule of law and upholding the judiciary, our erstwhile friends made a conscious choice. Now they cannot expect to have their cake and eat it too. But should this handful of misguided individuals realise the enormity of their blunder and the consequences of their greed, and resolve to abide by the "˜Canons of Professional Etiquette', we shall have no hesitation, once again, in enfolding them in our embrace.
Finally, there are those cynics and nay-sayers who dismiss our efforts as futile and akin to creating a storm in a teacup. First, let us objectively examine what our efforts, in the court rooms and outside, have already achieved. We have secured the release of the Chief Justice
from his virtual house arrest and enforced isolation. The government has been compelled to backtrack and essentially apologise for its maltreatment of the Chief Justice.
After unlawfully removing the Chief Justice, the government had sought to install Justice Javed Iqbal as Acting Chief Justice in his stead. The President had attempted to have his decision to remove the Chief Justice hastily rubber-stamped by the Supreme Judicial Council in the absence of the senior-most judge of the Supreme Court, Justice Rana Bhagwandas. Those attempts have failed.
We have procured the reconstitution of the Supreme Council to include Justice Rana Bhagwandas. Public opinion has been mobilised. The media is up in arms. The government's actions have drawn strong criticism by the international community, not least by the International Commission of Jurists. For once, the bar and the bench are united. And now, the Supreme Court has been pleased to stay the proceedings before the Supreme Judicial Council.
These are no mean achievements. This "storm in a teacup" has already ensured that, in future, only the most foolhardy of governments would dare to lay a hand on the judiciary's independence. No doubt, the struggle ahead remains long and arduous. It shall require further efforts and sacrifices and the full cooperation of other forces in civil society. But the longest journey starts with a single step.
The writer is president of the Supreme Court Bar Association.
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