Can
Their Lordships Too
Rise To The Occasion?
By Ayaz Amir
21 April, 2007
The Dawn
For
the first time in this luckless nation's history the nation is behind
the judiciary. Displaying unprecedented unity, the legal community has
rallied to the judiciary's defence. Question is: can their lordships
rally to their own defence?
It is a difficult time for
them no doubt, the season for excuses finally over. No longer can they
say that it is not for them alone to take on the might of authoritarian
rule. The nation is with them. The legal community is with them. Ordinary
citizens are with them. The force of circumstances is with them. Even
those political parties with a soft corner for the government –
there being several busy at the task of confusing the nation –
dare not be against them.
The powerful mood of the
moment, the current stronger than all others, relates to the judiciary.
The hero of the moment is someone from their own ranks: Chief Justice
Iftikhar Mohammad Chaudhry. Their lordships don't have to conquer the
Himalayas. They have only to go with the flow, swim with the tide, and
salvation will be theirs and redemption too.
Such moments come but rarely
in a nation's life and how the one through which we are passing evolves
will determine to a large extent our future as a nation. Can we build
something promising from the debris and wreckage of the past or are
we destined to make a muck of our affairs and journey from crisis to
crisis?
Their lordships cannot cite
fear or force as a factor undermining their independence because the
shadows of fear were exorcised on March 9 when Justice Chaudhry said
no to General Musharraf and four or five of his generals, presumably
there to buttress their Chief's arguments and overawe the Chief Justice.
Their lordships cannot say
that any show of judicial independence will wreck the present system,
such as it is, because the first casualty of its wrecking will not be
the superior judiciary but the general himself, his fate now tied with
this sorry attempt at a system. He sinks or swims with it.
The legal community is fighting
not for its wages or the person of the Chief Justice. Its cause is bigger:
the independence of the judiciary, the supremacy of the Constitution,
in the final analysis, the rule of law. But the legal community is just
the legal community. It can put up a good fight, as it is doing to national
acclaim, only up to a point.
But if the goals it is striving
for are to be achieved, if from the tumult of these events something
positive in the shape of judicial independence and the rule of law are
to emerge, the bench also has to play its part. It cannot sit back and
take refuge behind a pretence of 'neutrality', for neutrality in these
circumstances amounts to giving comfort to the never-ending follies
of one-man rule.
Circumstances are calling
upon the judiciary to sharpen its collective conscience and replace
its traditional caution with something approaching courage, if it is
not to fail the nation and itself in the process.
So the most important question
before us is not whether an increasingly desperate Daughter of the East
is about to consummate an unholy alliance with an increasingly desperate
general – if she chooses to blacken her face and follow the example
of Maulana Fazlur-Rehman, Lucifer now dressed in the garments of Eve,
who is to prevent her? – but whether their lordships can acquit
themselves as they should before the tribunal of history.
Some important footnotes
already stand written. When the Chief Justice came to address the Sukkur
Bar two judges of the Sindh High Court were present. No one has relieved
them of their judicial robes. If anything, they have gained in stature.
In Hyderabad a day later
came a more stirring sight, 15 judges of the Sindh High Court coming
to hear the Chief Justice speak. Who could have thought it? Pakistanis
are used to judicial timidity. Here was a sight for sore eyes, courage
and dignity for a change. Even cynics, I suspect, would have felt a
bit uplifted.
In Punjab, in contrast, Civil
Judge Sajida Chaudhry, serving in Gujar Khan, has been penalised for
coming to hear the Chief Justice address the 'Pindi high court bar.
Only goes to show the difference between Sindh and Punjab, something
in the air of Sindh which makes it a bit different, something in Punjab's
soil which makes it subservient to authority.
Punjabi judges ordered Bhutto's
hanging, first in the Lahore High Court, then in the Supreme Court where
a 4-3 division (the four being from Punjab) upheld his death sentence.
In the present reference against the Chief Justice, out of five judges
in the Supreme Judicial Council three judges are being accused of bias
by the defence team while the two not being so accused are both from
Sindh, Acting CJ Bhagwan Das and Chief Justice of the Sindh High Court,
Justice Sabihuddin Ahmed.
But generalisations can be
carried only thus far. Lawyers from Punjab are in the thick of the present
struggle. At every hearing of the Supreme Judicial Council lawyers from
all over Punjab and the Frontier (including, I must add, Chakwal which
is invariably well represented) travel long distances to be present.
And not to forget, the CJ's leading defence lawyer, Aitzaz Ahsan, is
from Punjab. So perhaps all is not lost.
At the hearing of the SJC
on the 18th one of the judges who is being accused of bias asked Aitzaz
to have faith in Allah. To which he retorted that they had faith in
Allah but not in him.
This is a defining moment
for the judiciary. Will it at last come into its own or remain forever
the handmaiden of authoritarian rule? But which way the penny falls
depends to a large extent on how their lordships themselves act in the
coming days and weeks.
No pistol is pointed at their
heads. No Provisional Constitutional Order requiring them to take a
fresh oath of office threatens their peace of mind. To the extent that
mortals can claim to be free, they are free, hemmed in only by their
own limitations. It is up to them whether they remain prisoners of the
past or write a new chapter in the nation's history.
A few observations are perhaps
in order about the political parties. Nawaz Sharif is committed to this
struggle but what is keeping him in London? If ever there was a time
for coming back, this is it. The only king of remote-control is MQM
Rahbar, Altaf Hussain. The PML-N is not the MQM. If it has to be galvanised,
the Sharifs have to think hard about how and when to stage a comeback.
"There is a tide in the affairs of men…etc." Some serious
reading of the classics is called for.
The politics of the MQM we
all know. The impressive rally brought out by it in Karachi had volumes
to say about the Lal Masjid/Jamia Hafsa charade, nothing at all about
the lawyers' movement or the judicial crisis. The MQM has its priorities
clear.
The holy fathers are proving
true to form, Qazi Hussain all for injecting momentum into the present
agitation but Maulana Fazlur Rahman, undisputed king of temporising,
blowing hot and cold and doing exactly what his well-wishers in government
expect him to do.
Trying to beat him at his
game is permanent Daughter of the East whose impatience finally getting
the better of her, has made her say things in her Sunday Times interview
which even her enemies would have put past her. She wants a deal with
the general and wouldn't terribly mind if he gets himself elected president
by the present assemblies. In an otherwise desolate spring for the Generalissimo,
this must have come as music to his ears.
Even so, the commitment of
lawyers and those supporting their cause is impressive and stirring.
Pray God that in the 60th year of its existence Pakistan finally finds
the peace and calm, and the freedom from the thralldom of third-rate
buffoons and charlatans, which have eluded it for so long.
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