'And Chief Justice was Restored'
9 March 2007 will be remembered in the history of Pakistan as a 'defining moment' when ancient battle of Yazeed and Imam Hussain got a quick reminder to us all that good and evil will always remain with the people till Dooms Day to judge their conscience and the victory will always be of good. Historic judgement of 20th July is a 'turning point' in our short history where a single man on the street conquered the minds and hearts of Pakistani people and 160 million souls sided by the side of a victim of brute force. We are at a cross road whether to move forward from here or run backwards and our history is full of Mir Jafar's but this opportunity may never knock our doors for a long time.
The writer From the British Pakistani lawyers platform wrote to General Pervez Musharraf on 12 March 2007 to consider withdrawing this reference as procedure adopted gives rise to serious questions of procedural impropriety and the way CJ was handled it will create suspicions whether Chief Justice can ever have a fair hearing if he is treated as guilty before even having a adjudication hearing for example restraints to his access to SC, virtual house arrest, his privileges withdrawn, and keeping him incommunicado. I quote one para from the 12 March letter which says as following, “In the current geo political situation in the country The President must consider an option of reconciliation with Chief Justice and he has by tonight to facilitate a meeting with CJ as on 13 March 2007 CJD starts its contemplation over the charges against Chief Justice and it will be too late by then. Government with Steel Mill Judgment, land grabbing mafia, sugar and cement crisis, continuous stock exchange crash(es), and Nabbed' ministers amongst their ranks will struggle to prove beyond reasonable doubt the issue of misconduct and abuse of power especially when they themselves drive bullet proof cars at public expense. However current situation desires all heads of constitutional tracheotomy to observe extreme patience and wisdom and be visionary to avoid conflicts which have serious repercussions for the state of Pakistan.
No action was taken and I assume the President may not have read that letter either. The writer also wrote to Acting Chief Justice(s) then was Mr. justice Javed Iqbal on 15 March and Mr. Justice Rana Bhagwan Das on 24 March 2007 requesting them to convene a full court reference to determine the true interpretation of Article 209, and 180. But no full bench was constituted and later British Lawyers on 5th of April moved the petition under ref 15/2007 to Supreme Court asking the SC to determine whether the term 'non functional Chief Justice of Pakistan' is Constitutional and requested true interpretation of the relevant article(s). There were around 35 other petitions too and thus this full hearing which ended on 20 July 2007.
I think the decision has given the unique pleasure to the nation and its the second biggest incident after the independence, first being the nuke tests on 28 May 1998 by Sharifs. Civil Society's work does not end here, they must be ready to work for the sovereign Parliament and raise issues wherever they see injustice. Praiseworthy media and newly born with fresh vigour Superior Courts must work hand in hand to root out the real evil from its ground and secure justice for the needy and play their role to break the orthodox nexus of judiciary and Generals. I think Pakistan must better be known for a tolerant, just and democratic society rather than 'militant in mind and uniformed democracy in system'.
Lawyers must not sit here either, their struggle was not to reinstate Chief Justice alone as that was the small picture, the big picture was always to struggle for true democracy, for a system not for a personality. Lawyers must be ready to convene a convention of all elected representatives and bodies to feed in their joint declaration(s) or demands to political parties to secure their support on issues like full judicial independence, financial autonomy to Superior Court, Separation of administration from Judiciary, appointment of judges commission, breakage of nexus of judiciary and judges completely, viable accountability process of judges and generals to eradicate no sacred cow concept, promote non political bar & bench, promotion of ethical and professional lawyers, cheap justice at door step of common man and quick relief process, including security of judges. We must also ensure the continuation of judgements like 20 July especially in matters of future course of action i.e stopping military coup de tats , Judges oaths under PCO's, Presidential referendums, uniformed president, and return of exiled etc.
Now that Chief Justice is fully armed and abreast with the challenges ahead he must ensure the safety and security of the State. Only a fair and independent judiciary can guarantee holding of a fair election(s) in Pakistan where transit from military to civil takes place in an honourable fashion rather than by a blood bath, ideally at this juncture and care taker set up & election commissioner is appointed in consultation with opposition and former judges who refused to take oath under PCO are given preference. People of Pakistan stood by Chief Justice for a better cause not for a judge to complete his tenure but to see Pakistan as a vibrant economically powerful and strong democratic country, if that is not possible now then we will have to wait for centuries for an other follower of Hussain to challenge the tyrant Yazeed of his time to pull the crowd. Decision is simple this is the only Chief Justice of modern history who has regained his position by public support and now nation seeks justice.
Amjad Malik is a Solicitor-Advocate of the Supreme Court (England) and a life member of Supreme Court Bar Association as well as Chair of Association of Pakistani Lawyers (UK).
23 July 2007