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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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