by Dr. Khalil Ahmad
There have been attempts at finding answers to the question of what transpired before the reference was filed against the Chief Justice (CJ). The focus is the judiciary’s past character. The boldest statement in this regard termed the judiciary as the B team of the Pakistan army and appealed to it to act instead as an A team. The first step towards this transformation of the judiciary was indicated by the reinstatement of the CJ. It was clarified that since in the past the judiciary had been legitimizing military takeovers, it was likely that it did come under pressure of the present military regime to make an influenced verdict. There is a view that says that had the lawyers not come out to rescue the CJ, he may have still been in a state of house arrest. It was the pressure of this movement that got him released.
When his case was before the full bench, weren’t the lawyers then supposed not to be around him? Wasn’t it up to the apex court to see to his petition? Why were the lawyers, civil society and political activists there then? It was none of their business to be around the CJ. Another such attempt presently in vogue takes strength from late Justice Dorab Patel. He is being quoted as justifying his role in the bench that validated the military takeover of General Ziaul Haq on the plea that how could a few judges stop the coup leader when a nation of 160 million remained silent?
The participation of civil society organisations and political and religious parties worked as support to the judges in stopping a coup leader. Does this prove that it was this movement that caused the judgment of July 20? Of course it did, but in the eyes of only those who hold such a view. It is the view of those who are Dorabians and believe that without such a movement no such judgment could have come from the full bench of the apex court. It means that the custodian of the Constitution, the judiciary, needs the people’s support to protect, defend and interpret the Constitution. Without this support, the July 20 verdict could not be such a historic one. If it is so, and as it seems it is so, it is most unfortunate for our country and the constitution as well.
It is here that we enter the third context. What is transpiring now after the judgment and what will transpire in future regarding the judgment? The ethos created by the judgment may appropriately be termed as judicial populism. Under the circumstances, what is more depressing is that we have no inkling of how dangerous and fatal this judicial populism may prove to be. This view is corroborated by the sheer absence of the view that judgments are made in accordance with the provisions of the Constitution. Whoever talks about the July 20 judgment, links it with the lawyers’ movement.
They admit that judges are human beings and are influenced by the circumstances prevailing outside the court. But in the same breath, they declare that they judge according to the relevant laws. They are, in fact, caught in a vicious circle. They have no way out. Why? Because they do not want to acknowledge that their movement was a spontaneous outrage against an outrageous act of a dictator that was deliberately transformed into an organised movement. The focus of their movement was the restoration of the CJ and nothing else. It is evident that it has exhausted itself the moment its goal was achieved.
No doubt, their movement gave rise to slogans of utmost importance such as an independent judiciary, rule of law, supremacy of the constitution, and civilian democratic rule. Have these goals been achieved? Or will they be achieved in the near future? The first step in this direction has already been taken with the restoration of the CJ and undermining of the anti-constitution forces and strengthening of the judiciary. Some of the signs, such as the intimidation of lawyers who disagreed with the mainstream lawyers and advocated the government’s case, now seem to have started maturing. Two recent incidents of intimidation — one of a known journalist Khalil Malik, and the other of a lawyer Naeem Bukhari by the legal fraternity — are symptomatic. This indicates that the lawyers’ movement is deliberately being transformed into judicial populism.
It may be asked why were the lawyers afraid of losing the fight? Why didn’t they trust the court? Why did they resort to agitation? Why even now are they and the representatives of civil society and the intelligentsia justifying the popular support to the court to deliver a popular judgment? The truth in fact is that they did not trust the court. Why so? The history of the court’s judgments in such matters has been disappointing altogether. It seemed as if there was no constitution. The courts were there to cook whatever was needed to be offered to the uniformed guests. With such a background, how can one, and if that one happens to be a lawyer who knows well the track record of the courts, trust the courts?
But that’s not all. The story needs to be retold. The man who inhabits the land of Pakistan has no moral values. He has no integrity of character. He is a man of flesh only. He is not a man of principle. He has no regard for the means. His ends justify his means. He has no conscience. In sum, the quality of man in Pakistan is at its lowest. How can then judges go beyond this state of affairs? It is admitted even today by everyone. Judges, whether retired or not, argue like this. After all judges are human beings. This justifies every act of theirs.
People cannot be blamed for whatever has happened. What is required of a judge is integrity of character. Judicial populism, in many people’s view, destroys whatever little is left of the rule of law in Pakistan. It will destroy supremacy of the Constitution, independence of the judiciary, and turn the society of Pakistan into adventurous warring groups of gangsters. My Lords, so many people like me who believe in the rule of law, need to be convinced that you did not need any popular movement to issue the July 20 verdict.
(concluded)
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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 September 01,2007.
