by Dr. Khalil Ahmad
Judges rule on the basis of law, not public opinion, and they should be totally indifferent to the pressures of the times.
- Warren E. Burger (1907-1995), Chief Justice, US Supreme Court.
The best thing that explains the Supreme Court's (SC’s) July 20 judgment is: it is never too late to mend. As is being claimed, the judgment is historic, it is daring, it is a people's verdict, and a turning point in Pakistan's history. Of course, it is all these or maybe more, but things are meaningful only in a context. Without context, they lose their import. This is more so with the SC's judgment that unanimously reinstated Mr. Justice Iftikhar Muhammad Chaudhry, Chief Justice (CJ) of Pakistan, setting aside the presidential reference against him.
Besides its own significance, what makes the judgment unusually extraordinary are the reservations, apprehensions and misunderstandings being thrown out from all the quarters concerned, including those who support it. Hence, it is of utmost importance to be able to see this judgment in its proper context so that its implications may be figured out.
There are three temporal contexts the judgment may be placed in: i) What transpired before the reference was filed against the CJ; ii) What transpired from the moment the CJ was in the Camp Office of the President of Pakistan and Chief of Army Staff, General Pervez Musharraf, to the moment the judgment was announced regarding the CJ’s constitutional petition in the SC of Pakistan, and iii) What is transpiring now after the judgment and what will transpire in future.
Let's start with the second context. It is said that the lawyers’ movement for the restoration of the CJ was inspired by political motivations and that the lawyers were committing to politics. The objection was debated at every forum. But the whole debate missed the point that neither the CJ nor the lawyers were motivated by power politics. The lawyers are not a political party. They are a heterogeneous lot composed of diametrically opposed political and religious groups and parties. The CJ was (and fortunately is) a government official and was fighting his case first in the Supreme Judicial Council and then in the SC of which he was the chief judge. He could not be shown having any such intentions. Nor has any such evidence come to the fore.
It was further objected that while traveling to address the Bar Associations in various cities, he led huge processions. The most 'valid' objection on his traveling to Peshawar by road may be why he did not fly to Peshawar? It was the first travel of the CJ after being rendered ‘ineffective’. He and his lawyers never knew that huge crowds were awaiting the CJ at every milestone.
The objection was that holding rallies was the privilege of political parties’ leaders only, and that the processions were organised by the CJ and his lawyers to build up a certain campaign. Obviously, it was not like that. The people came on their own to these rallies to show their appreciation of the CJ's 'no' to a dictator. After the Peshawar travel and address, the CJ’s lawyers began the practice of announcing the CJ's schedule about going to a city to address the Bar Associations beforehand. Did the CJ or lawyers make any call to the people to come to welcome the CJ? Never!
See what the government was doing to establish its ‘writ’, preparing the affidavits and more references against the CJ in a most bizarre manner. Last but not least, it was trying to influence the honourable judges hearing the CJ’s petition. But the question is whether the CJ himself indulged in any such activity unbecoming of his status. He never spoke a word outside the purview of the constitution. He made speeches and read papers which highlighted the constitutional working of a government and, what is most important and emblematic of his judicial activism, he exhorted the lawyers for massive public interest litigation. Is all this political?
The historic travel of the CJ from Islamabad to Lahore was an eye-opener. The government and its allies shaped things on May 12 in Karachi. The Karachi carnage was the decisive point of the battle that was being fought outside the courtroom, after which apparently the government started retreating from this front. But as the wind had changed its direction, it had to step back from this front also, leaving the ban intact on live coverage of the CJ’s travels and addresses.
Perhaps the government wanted the CJ to sit in his house and see how the court proceeds and decides about his case. From the government’s point of view, the legal community should not have come to the CJ’s aid or to his rescue. All this read together amounts to saying that they should have given the government and its machinery an arena where it could demonstrate its muscle power. That this did not happen frustrated the government, and finally made it fatally helpless. One of the more dangerous objections was that all those CJ’s processions, rallies and addresses were aimed at influencing the honourable court. Some of the CJ’s counsel also made the mistake of uttering some public statements which were unbecoming of them. The statements earned a bad impression for the lawyers’ movement, which was being waged in the name of the rule of law.
The cogency of this objection is fatal. The government, its advocates, its supporters and other independent observers were right in asking, what’s the use of this movement if the case is sub judice? They were justified in raising the questions on the nature, character and objectives of this movement. When asked would they accept the court's verdict, the counsel of the CJ used to reply that they would not if it favoured the government. They were further asked, didn’t they trust the SC? They said they did, but they would not accept a judgment like Justice Munir’s. How can one trust a thing and at the same time mistrust it? The lawyers had no clear answer to this objection. They are still without one.
If the CJ's case was before the country's highest court of law, what was the need for the lawyers, civil society organisations, political activists and ordinary people to come out on the streets? This is the trickiest question that must be answered to understand the July 20 judgment. Also, this brings us to the first context: What transpired before the reference was filed against the CJ?
(to be continued)
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Dr. Khalil Ahmad is associated with Alternate Solutions Institute, Pakistan’s first free market think tank
This article appeared in The Post on August 31, 2007.
