Zahid Malik

Monday, February 22, 2010 – Comments

I was one of the most satisfied citizens of the country with the dramatic but positive culmination of the Judiciary-Executive episode over the appointment of judges to the superior courts. However, I would say it was another kind of “NRO” and this time too the lucky beneficiary would be President Asif Ali Zardari. Indeed, he is a master political strategist. The question arises why in the first place the Government was in an extremely defiant mood. This was not the only Government in ourchequered history that tried to emasculate the Judiciary, as rulers of the past too treaded the same path with varying degrees of success. This column, very briefly, throws light on how our rulers manipulated the Judiciary in the past and what are the state of affairs at present.

There is one word that captures the essence of all Islamic laws and teachings of the universal religion; one word that describes the overriding value that permeates all other Islamic values – JUSTICE. The Holy Qur’an says: “We sent aforetime our messengers with clear Signs and sent down with them the Book and the Balance, that men may stand forth in Justice.” [Al-Hadeed 57:25].

Broadly speaking, doing justice means giving everyone his due. Fourteen hundred years ago these commands created a society where rich and poor, friend and foe, Muslim and non-Muslim, the ruler and the ruled, were all treated equally and all of them could count on receiving justice. The Qazis (judges) were exalted personalities and quite independent and no one, including the Khalifah was above the law. If a dispute arose between the Khalifah and an ordinary person, both had toappear in court and provide their evidence. Islamic history is full of stories of this justice that filled the earth wherever Muslims ruled in their golden era. People of Pakistan view our Judiciary in this perspective.

During the period of the Abbasid Caliphate, the office of the Qazi al-Qudat (Chief Justice of the Highest Court) was established. The office of the Qazi continued to be very important one in every principality of the Caliphates and Sultanates of the Muslim empires over the centuries and even today people recall the powers of the Qazis of that era. There are also instances of Qazi retaining a small army or force to ensure that his rulings were duly enforced. Such is the spirit and philosophy of justice in our great religion.

I narrated the above to emphasize that in Islamic concept Judiciary has a critical role and even in a modern democratic set-up it is a stabilizing factor, ensuring establishment of rule of law and is thus widely respected. In Pakistan too, the Judiciary must be a strong pillar of the State as enunciated in the Constitution, the other two being the Parliament and the Executive. It is because of its key role, powers and the respect it evokes in the masses that the Judiciary becomes target of the Executive and power brokers from day one. That is why successive Governments and rulers have been concentrating on taming the Judiciary as the incumbent Government following the footsteps of its predecessors. As a result a time came when it became subservient to the rulers starting from Governor General Ghulam Muhammad when the Chief Justice of the time Jutice Munir in 1954 upheld the dissolution of Constituent Assembly under the widely misused and maligned ‘doctrine of necessity’ legitimizing constitutional deviations in the name of national interests and future of the country.

In 1958, towering General Ayub Khan who was extremely critical of the black coats, imposed martial law, dissolved the Assembly and abrogated the 1956 Constitution. His coup was challenged in the Supreme Court which accepted the validity of the revolution provided the revolution was successful in establishing an efficacious legal order. According to Arun Shourie, a prominent Indian journalist, author and politician “In the infamous Dosso case, the Pakistan Supreme Court legitimized the usurpation on the doctrine that when saving the country requires that the Constitution be scrapped, the one who seizes power can scrap it. And the legality of an extra-constitutional seizure is established by the fact that it has succeeded.

So was the case when General Ziaul Haq followed the suit and dissolved the Parliament in 1977. It was challenged by, now ailing, Begum Nusrat Bhutto and insiders say the Chief Justice toddled off to a briefing at General Headquarters before announcing the court’s judgment in favour of General Zia again based on the doctrine of state necessity and welfare of the people, as distinguished from the theory of Revolutionary Legality, propounded in Dosso case.

In 1979 the Supreme Court, as it had already been decided, delivered the judgement to execute the former Prime Minister, Zulfiqar Ali Bhutto. The Chief Justice was again seen hanging around General Headquarters beforehand. Significantly, former Chief Justice of Pakistan Dr. Nasim Hassan Shah who was a member of the Supreme Court Bench which finally confirmed the death sentence in an interview had conceded that Bhutto could have escaped the gallows and his death sentence reduced easily. In his Book “The Trial of Zulfikar Ali Bhutto and Superior Judiciary in Pakistan” Advocate Syed Sami Ahmad has quoted Justice Nasim Hasan Shah as admitting that the death sentence was a mistake and that he had given a dissenting judgment. “So long as the Army rule is there, no judge can afford to be independent. No judge would like to be crucified,” writes Ahmad, quoting Nasim Hasan Shah. Dr. Nasim Hasan Shah also hinted in an interview that both General Ziaul Haq and Justice Maulvi Mushtaq had fears that Bhutto’s survival could be risky for them. So he should better be eliminated first and no chances taken.

When Mohammad Khan Junejo’s Government dismissed by President Ziaul Haq on May 29, 1988, was going to be restored by the Supreme Court was housed on Peshawar Road in Rawalpindi in those days. The President, who was also the Army Chief, came to know of the intention of the Judges and the then Vice Chief of Army Staff General Mirza Aslam Beg who was residing across the road rang up at midnight the then Chief Justice and emphatically told him to reverse the decision. There were also reports the message was conveyed through Mr. Wasim Sajjad, who was Law Minister during Junejo Government. Wasim admits that he received a phone call from General Mirza Aslam Beg but denies there was any message for the court.

On 28th November 1997 when Chief Justice Sajjad Ali Shah was hearing contempt of court cases against the then sitting Prime Minister Nawaz Sharif and others, an angry mob of party loyalists attacked the Supreme Court building, broke doors of court rooms and raised objectionable slogans in the corridors of the apex court. All this was ostensibly to pressurize the apex court.

There are many other cases but what I want to point out is that history took another turn, unprecedented and unimaginable when on 9th March 2007 the then President General Musharraf held a meeting with the Chief Justice Iftikhar Muhammad Chaudhry and asked him to resign from his office. To his great surprise and dismay, the Chief Justice very rightly refused to oblige. It was a rerun of another episode. The Chief Justice was sitting on the same seat where on February 4, 2004 renowned nuclear scientist Dr A.Q. Khan sat and forced by the former President confessed about his much-maligned nuclear proliferation.

In the present scenario, I would like to say that President Asif Ali Zardari too appeared to follow the path of taming the Judiciary. Perhaps he doesn’t realize that era of Munirs, Anwarul Haqs and Dogors was over. The CJP Iftikhar Muhammad Chaudhary-led vibrant Judiciary, with a new vigour, is conscious of its responsibilities and powers enshrined in the Constitution and envisioned by Quaid-i-Azam Mohammad Ali Jinnah. I would caution the Executive to realize that a lot of water has flowed under the bridges. Though Prime Minister Yousuf Raza Gilani saved the system through brinkmanship yet earlier he too made comments that amounted to pressurizing, taming and in fact blackmailing the Judiciary into compliance. His wild remarks that the restored judges needed validation of the Parliament were a plunge into darkness but then he realized the folly and took a U-turn to safety. I would like to sound a word of caution that the superior Judiciary under Chief Justice Iftikhar Muhammad Chaudhry has been lionized by all and sundry and it could not be intimidated and tamed any more. An independent Judiciary is in the interest of the Government, the Opposition and the country and it has to be there to protect the legitimate right one. Today’s Opposition could be tomorrow’s government and keeping in view the past traditions there could be cases of political victimisation and only the independent courts could deliver justice.

The ruling Party which earlier played the Sindh Card and now floated the PPP Card by arranging huge rallies in major cities would be well-advised to please recognize the fact that all the three pillars of the State should be allowed to function within their well-defined role as this is the only guarantee for sustainable democracy, progress and prosperity of this country of the Quaid. In any case the people of Pakistan hold their Qazis in high esteem and if and when there was a clash between the Executive and the Judiciary, they will be, as per their psyche, on the side of the Judiciary.

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