Yet an other blow on the weaker judiciary of Pakistan
19 March, 2007
By Amjad Malik
Yet an other black day in the short history of Pakistan. Last full decade of Army Chief cum President General Mushraf is full of black days, and it has happened so many times that we feel reluctant to call it a black day. On 12 October Army came to Capture capital in defiance of Prime Ministerial orders and that was considered a black day, Chief Justice Siddiqui was made to go home and Judges took oath under PCO, again that was called a black day and now again Chief Justice was in some what similar style and circumstances was confined and reduced to a normal man, now critics call it again a black
day. I differ as it is under statement, we must reconsider as we can not have 3 black days in 10 years. So lets call it a ‘Chief Day’ one chief tells the other as to who is real chief, the other chief tried to be chief and real chief confined him to a chief he really is in a chiefly manner.
In the west the news was taken that an Army Chief called the Chief Justice in his army camp, asked him to leave honourably or face the wrath and upon his refusal confined & reduced him till the evening against his will and shuffled the whole Supreme Court and put a reference against Chief Justice in the Supreme Judicial Council who will hear dozen of allegations full of metal against their peer on 13 March 2007. That’s the way the current government is used to changing ‘thanidars’ and the same way they have decided to change the Chief Justice Irony is that his fellow judges rather than enquiring the well being of their Chief and ordering for his production and availability in Supreme Court so that proper consultation could take place as to resolving the President’s reference to (SJD) Supreme Judicial Council, instead they went ahead and took oaths as was desired by an other Chief and people saw them congratulating each other on this victory. We see that when its time of Judicial unity you can always find judges who would come forward and act against their own peer, army does not do that when time comes, and they always boost of this quality.
Now we must look at reasons as to why chief has to go. I spoke to a few friends who were saying since x-mas that chief is going then came Arsalan (his son’s) issue, letters started circling here and there and a story in popular channel in Pakistan on bribery in judiciary and last nail in coffin a letter purported to be from Naeem Bhukhari which was highly circulated as I myself received it from USA. These were the chain of events that gave rise to intelligent bye slanders that ‘cookie is cooking’ and cat was out of the bag on 9th March. Why it happened is very crucial. I think Chief was acting as a real chief. He gave a very popular judgement in public against steel mill sell off, he was hearing cases of missing people which was against the desires of intelligence top brass, he gave access to truly affected people like Sonia Naz & Mukhtaran Maee against the wishes of Police though he may have gone little bit far in doing so. And he was about to decide very few important constitutional matters in next 6 months and looking at his track may be ‘they’ were not truly satisfied whether he will given them in levy. I think they panicked.
I personally am in favour of judicial activism when government of the day fails to deliver truly the relief people deserves, unconstitutional means follow when constitution fails to address the real issues now I feel our favourite general is entering into that regime and next 6 months are very crucial for him. The way Chief Justice was aggravated by attacks on his personal life for last 12 weeks, similarly I feel he himself is taking aggravated decisions and critic says he has shot on his own foot by sacking the Chief Justice.
I myself am a witness of the fruit of pro active judicial work when Chief Justice last year upon my request asked IG Punjab to register a case of murdered women in Gujrat upon the request of his elderly parents over 70 years of age living in UK. The girl was brutally bruised and killed and later was buried without her parents present by her husband. Even after Chief’s intervention FIR was registered good 6 months after her death. Though they still did not get trial or complete justice but this gives the reader an idea of state of play. We can not punish him for the good he intended to do in the country.
How this change procedurally has been carried out is a mockery pf justice. Even chief justice deserves justice and due process of law, he is not above law. Article 209 is very clear. Chief is always chief. He can not be tamed, confused, reduced and confined. He could not have been called to army camp and humiliated by asking to resign. Filing reference was President’s prerogative and after filing that Reference CJ should have been allowed to attend SC and decide as to the fair conduct & hearing of that reference and peers would independently decide on it. They had already done so in the past at the time of unprecedented clash of views when Honourable Sajjad Ali Shah was Chief and they jointly decided to ask him to step down for the sake of unity in judiciary.
They would have done it this time too and nation becomes strong only with these passages given the opportunity. Government has no leg to stand on the issue of abuse of power and corruption when Steel Mill Judgement, land grabbing mafia, sugar and cement crisis, continuous stock exchange crash(es), Nabbed’ ministers and Bajaur and Dama Dola killings are shining like medals on its collar. No sacking took place then and no reference was filed. Government should have resigned in any event or could have been sacked after Steel Judgement. English cabinet would have if that have been a decision by English Court.
Nexus of our judges with Generals have ruined the future of democracy in Pakistan. Nepotism, bribery, lawlessness, unmeritorious appointments and lack of respect of law in an unjust society has made life impossible for lay Pakistanis who are looking towards a ‘messiah’ for their salvation. In order to continue this trail of unlawful rule, judiciary has weakened further and Chief Justice has been made to go home the second time. Ordering oath under PCO hit
the nail aright and judiciary lost its teeth as an institution long ago. Will Iftikhar Choudhary get a fair hearing when his peers do not speak up upon his confinement, when he is stripped off his freedom of speech and his lawful privileges, its any body’s guess though I hope he does.
Now what will happen, I think even Chief Justice deserves a fair hearting, a due respect and proper treatment to have his legal team for consultation and advice and unless Council decides otherwise all the privileges he deserves in the remit of constitution. Media trial must end here, now Chief Justice is a victim of his own deeds good or bad and let the council decide on 13th the future course of business.
I must mention here that whilst CJ had a chance, he could have decided some constitutional issues too whilst he was in power. Now regrets is an asset for his memory when he witnessed the Army chief retaining his uniform post 31 Dec 2004 he remained silent, when he rejected to entertain two offices bill, when his office entertains president’s reference against NWFP assembly’s passed bill but he refused to give relief against 17th amendment. Equality is a virtue of which our SC is envy of especially when army is out of barracks. We still pray that justice is done with the Chief Justice. I must mention here that sitting in London I could find only one gentleman out of the whole judicial class (Mr. Justice Wajeeh uddin Ahmed) who showed his guts and voiced the true feelings of lawyers all around and judicial class and demanded the fair treatment of the Chief Justice.
I must end here saying that if his fellow peers decide in his favour then including Attorney General from lower to the top brass must be ready to resign as filing reference on unfounded charges and on the basis of some letter(s) is a serious business and may amount to contempt too for those who choose to ridicule the Chief in this unbefitting manner and especially for the Govt who have no track record of angels themselves. President must also be ready to digest more reference(s) against his own hand picked government if this reference succeeds as it opens a window to people to complain and demand sacking of his own hand picked Ministers amongst those are some real absconders and criminals who are looting the state of Pakistan on wholesale basis. Nation is demanding justice and it must be seen to be done. One time the same thing The
Queen of England did to his Chief Justice and people took to street until that sacking was off, and later people got him elected and he was made a speaker of the assembly without opposition by all the houses of parliament. That’s the power of people where rule of law exist.
Amjad Malik is a life member of Supreme Court Bar Association and & a Solicitor-Advocate of the Supreme Court (England) and Chair of Association of Pakistani lawyers (UK).