Madness and arrogance unspeakable
By Ayaz Amir
Whom the gods would destroy, they first make mad.
-- Euripides
NOTHING like this has happened in Pakistan for a long time, certainly not in the last seven and a half years during which the nation has been seized by immobility and paralysis.
Now, all at once, the waters seem to be moving and the heavens opening. All because of the courage and steadfastness of one man and the response his courage has evoked amongst the legal fraternity and Pakistanis at large.
Bereft of worthy icons, much less heroes, the people of Pakistan suddenly have someone they can look up to and take heart from: the Chief Justice of Pakistan, Justice Iftikhar Mohammad Chaudhry.
Such has been the sad, tarnished history of the superior judiciary Pakistanis had lost faith in it. Now after a long time, a product of the judiciary has arisen to become a magnet to their hopes and aspirations.
When the Chief Justice and his wife, Begum Iftikhar Chaudhry, walked out of their house on Tuesday morning, refusing to sit in any official car and insisting they would rather walk to the Supreme Court – where the Chief Justice had to appear before the Supreme Judicial Council to answer the reference filed by Gen Musharraf – the Chief Justice was roughed up by the Islamabad police and pushed into a waiting car.
Photos of this shocking incident, with a rough hand holding the Chief Justice’s head, have appeared in some newspapers. Unthinkable as it may be, even Begum Iftikhar was pushed around. A taste no doubt of ‘real’ democracy and ‘enlightened moderation’.
But violating the Chief Justice’s person, what has it achieved? It has further elevated his already high stature in the eyes of the Pakistani people. All the high-ups of the Islamabad police, including the Inspector-General (otherwise a likeable enough person), were present when all this was taking place. They can spend the rest of their lives explaining their sorry part in this affair.
As for Begum Iftikhar, she now becomes in the eyes of the public the First Lady of Pakistan. Eat your hearts out, other candidates for this honour.
Consider the fix the people of Pakistan are in. Those with any heart in them would have wept at the Chief Justice’s manhandling. But, in a strange way, they would also have felt elated.
For their worst fears were that the Chief Justice might succumb to pressure, thus taking the wind out of the sails of the present national mood. After all, under virtual house arrest, with no access to the outside world, deprived of newspapers and television (basic necessities in our day and age, especially for someone in his position), his children prevented from going to school, questions were bound to arise about his state of mind.
But those fears stood dissipated by Tuesday’s events which showed that here was a man not going to bend before unlawful or unholy authority. As worst fears stood confounded, the best hopes being entertained were vindicated.
The Chief Justice would also have derived strength from Tuesday’s happenings. Because when the car carrying him finally arrived before the gates of the Supreme Court, the people assembled there, unable to keep their emotions in check, lost all control and stormed the vehicle and pulled him out. Amidst deafening cheers and much jostling (but this was jostling of another kind) they swept him towards the doors of the Supreme Court.
They would have broken the doors and entered the building itself but it was the Chief Justice who bade them go back. And you know what? Even in that melee the crowd obeyed. This is what moral authority is all about. With it you don’t need bayonets to have your way. Without it, not all the bayonets in the world can come to your rescue.
But, by God, how have the Blackcoats of the legal fraternity acquitted themselves. In all the popular movements with which our history is littered, lawyers were part of the popular ferment, seldom its spearhead. How different this time: Blackcoats in front, first at the barricades, the nation behind, drawing inspiration from their courage and example.
In the recent elections of the Supreme Court Bar Association the legal community seemed to be badly split. But as soon as this crisis erupted differences seemed to be forgotten. Across the country the unity of lawyers has been exemplary and heart-warming.Senator Latif Khoso is a leading member of the bar. In his distinguished career, however, he will have received few marks of honour more shining than the merciless blow on the head from a police lathi at the gates of the Lahore High Court. Borne aloft on the shoulders of his colleagues, his head and face streaming with blood, his has been one of the most striking images of this agitation. Hail the Pakistani media too, newspapers and private TV channels, which have fulfilled their responsibility admirably, not only keeping the nation informed about what’s going on but also educating it about the fundamental issues involved in the present unrest, issues going far beyond, much beyond, the person of the Chief Justice.
The issues are democracy, the rule of law and the doctrine of the separation of powers. What is Pakistan’s destiny? To wallow in the turbid waters of authoritarianism forever or a somewhat different future in which the people can come into their own instead of having to endure an endless cycle of self-appointed military ‘saviours’ usurping what is not theirs and imposing their misguided will on the nation?
My Lord the Chief Justice is thus proving to be a catalyst of a larger discontent. All the issues swept underneath the carpet for the last seven and a half years are coming into the open. Had he not been courageous, had he submitted to uniformed diktat, this moment would never have come. It would have passed, awaiting another catalyst and another crisis. But he stood his ground and the result is before us: bottled up unrest breaking free from its confines.
What did Keats say? “He ne’er is crowned with immortality Who fears to follow where airy voices lead.” Airy voices call to all of us but only to a chosen few is it given to heed their call. Justice Iftikhar’s moment came and he seized it. What if nothing comes out of this unrest? His name will still have been carved amongst the few good and honourable things to have happened to this country.
A few other issues have also been settled by this crisis. Confusion no longer surrounds the National Spoon Awards. The first prize goes, indubitably, to Information Minister Mohammad Ali Durrani who has outdone himself. Second prize: honourable law minister, Wasi Zafar, who, in the form of his major contribution to the English language by the meaning with which he has invested the phrase “…the big arm” and what he is capable of doing with it or pushing it into, has also outdone himself. The third prize goes to friend Mushahid Hussain. Bravo.
Chaudhry Shujaat Hussain and even Sheikh Rashid Ahmed have had the sense not to say foolish things. Not the winners of the National Spoon Awards.
As for Army House, among a long line of blunders tumbling out of its hallowed space this is by far the most serious. Indeed, if it qualifies as anything it is as a judicial Kargil although in its possible impact it could turn out to be far graver than the military debacle enacted on those steep heights.
From the consequences of that looming catastrophe our budding Rommels were saved by Nawaz Sharif who scurried to Washington to help cover their discomfiture and retreat, folly he must now be regretting. Who will rescue them from the present disaster? A grave responsibility rests on the shoulders of My Lord the Acting Chief Justice, Justice Javed Iqbal. He is right in saying that if he hadn’t taken his oath of office, a vacuum would have resulted leading to incalculable consequences. Now having taken that step, the same airy voices that Keats spoke about whisper in his ear inviting him to immortality, if only he will seize it.
DAWN
Another Blunder of 'Rogue' Army
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Ahmed Mateen
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Ahmed Mateen
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Another Blunder of 'Rogue' Army
Assault on the judiciary
By Khalid Jawed Khan
GENERAL Musharraf launched his second coup on March 9, 2007, by forcibly suspending the Chief Justice of Pakistan and virtually detaining him. When he launched his first one in 1999, Pakistan had once again joined the ranks of countries like Myanmar. With this second coup, we are now in a class of our own. Even Myanmar has not achieved this feat despite a long martial law.
Much of the blame for the general’s action may lie with Chief Justice Iftikhar Chaudhry himself. He was not performing his functions as would be expected from the head of the judiciary of a country under military siege. He was beginning to stretch the long arm of the law to areas it had never visited before. He dared to question and unravel sordid deals to sell national assets. He directed the government to produce persons long ‘disappeared’. He sounded even more threatening when seen from the perspective of what lay ahead of this hapless nation in the year 2007. Any person who perceives the military uniform and presidency entrusted to one mortal soul to be incompatible with the Constitution of Pakistan is considered a threat to national security, especially if he happens to be the Chief Justice.
President Musharraf and his legal wizards are partly to blame for misreading the judicial philosophy of Justice Chaudhry at the time of his appointment as Chief Justice of Pakistan. Even before his appointment as Chief Justice, he had given a clear indication of what could lie ahead. While dealing with a provincial ordinance passed during the military rule of General Musharraf, he had made the following observations in December 2004, in the case of Arshad Mehmood vs Government of Punjab PLD 2005 SC 193:
“It is important to note that Ordinance of 1999 could not be placed before the Provincial Assembly to make it an Act because during its subsistence the Provincial Assembly was suspended on account of the military takeover on 12th October, 1999. Therefore, it may be legitimately presumed that in the enactment of Section 69-A of the Ordinance, the public views through elected representatives were not included. Thus, in the absence of public opinion in promulgating Section 69-A of the Ordinance, it may not be difficult to infer that it was not promulgated in the public interest and general welfare etc. Indeed, had this law been discussed in the Assembly, through the representatives of the public, it might have changed its complexion, to bring it within the command of Article 18 of the Constitution.”
General Musharraf and his legal advisers should have realised that a judge who believed that public interest and public welfare could only be gauged and served through representative institutions would be a serious threat to his version of democracy. To hand over the reins of judicial power to such a person and that too for a tenure which could last up to the year 2013 was nothing but brinkmanship on the general’s part.
The events reported so far appear to suggest that having dispensed with the Chief Justice of Pakistan for the time being by suspending him or making him ‘non-functional’, the government went into full gear to give constitutional cover and legal semblance to this erstwhile naked exercise of raw power. Had such an action been taken by an elected civilian government, it would have been toppled by the military within hours.Initially it was claimed by the government that the president had filed a reference against the Chief Justice of Pakistan under Article 209 of the Constitution of Pakistan, 1973, only after he was unable to satisfy the uniformed president of his innocence in the COAS House which happens to be the camp office of the president. However, subsequent events showed that the reference was not ready even when the Chief Justice first appeared before the Supreme Judicial Council on March 13, 2007. In the meanwhile, some of the spin doctors of the government unleashed a campaign to malign the Chief Justice who was not only legally presumed to be innocent until proven guilty but still held the highest judicial office in the country.
It was indeed exhilarating to see that the advent of an independent electronic media has completely transformed the rules of the game. The media not only brought the unfolding drama live into our homes, it also aired the views and comments of independent analysts as well as some of the most respected former members of the judiciary itself. This not only frustrated the government’s blitzkrieg but also generated public interest which the event certainly deserved.
It is repeatedly being argued that the fate of Chief Justice Iftikhar Chaudhry now rests with his peers in the Supreme Judicial Council. For that reason, people have been asked to refrain from commenting, lest they prejudge the issue and prejudice the atmosphere. Nobody should interfere with the functioning of the Supreme Judicial Council. This may even constitute contempt.
It is indeed correct that where a legal issue is sub judice before a court, let alone before the Supreme Judicial Council comprising some of the senior-most judges of the country, prudence and restraint are required. Thus, the narrow legal issue as to whether there are sufficient grounds against the Chief Justice of Pakistan which constitute misconduct calling for his removal from office must be left to the Supreme Judicial Council.
However, the larger issue which is neither before the Supreme Judicial Council nor prone to legal resolution is about the role of the military in running the affairs of the country. Notwithstanding the pretension that the action against the Chief Justice was taken by the president of Pakistan on the advice of the prime minister, there is absolutely no doubt that real power rests not with the prime minister or his cabinet but with the chief of army staff who also occupies the office of president. A legitimately elected president or prime minister, however powerful, would not have opted to summon the Chief Justice to his office and detain him and if he did so, could not have survived in power. It is the office of the chief of army staff and the raw unchallenged power which this office carries with it that emboldened General Musharraf to launch this adventure.
Unless the military as an institution is completely depoliticised and the people of Pakistan wrest control of the government through electing representatives, these destructive tendencies which were shamelessly displayed on March 9, 2007, will continue to haunt the country. The first step is to insist that the office of president and chief of army staff cannot be held by the same person. It must be realised that this is not a simple legal problem. We must not expect our courts alone to show the door to an unwilling, ambitious general. He will not surrender power voluntarily. It is a national political problem. All the forces of the country would have to coalesce together for restoration of constitutional rule. As usual, the legal fraternity has taken the lead. The people must now follow suit.
This is a turning point for the country. By severely manhandling the Chief Justice of Pakistan, the military establishment has overstretched itself. While it wants to demonstrate its power, it is exposed and looks weakened as never before. The general has never been so vulnerable. This is a moment which could determine the fate and future of this country. If the people seize the moment and take the initiative, this would be our second liberation. If they miss it, the general will succeed in his second coup as well. After that, the country would be in the wilderness with darkness all around.
By Khalid Jawed Khan
GENERAL Musharraf launched his second coup on March 9, 2007, by forcibly suspending the Chief Justice of Pakistan and virtually detaining him. When he launched his first one in 1999, Pakistan had once again joined the ranks of countries like Myanmar. With this second coup, we are now in a class of our own. Even Myanmar has not achieved this feat despite a long martial law.
Much of the blame for the general’s action may lie with Chief Justice Iftikhar Chaudhry himself. He was not performing his functions as would be expected from the head of the judiciary of a country under military siege. He was beginning to stretch the long arm of the law to areas it had never visited before. He dared to question and unravel sordid deals to sell national assets. He directed the government to produce persons long ‘disappeared’. He sounded even more threatening when seen from the perspective of what lay ahead of this hapless nation in the year 2007. Any person who perceives the military uniform and presidency entrusted to one mortal soul to be incompatible with the Constitution of Pakistan is considered a threat to national security, especially if he happens to be the Chief Justice.
President Musharraf and his legal wizards are partly to blame for misreading the judicial philosophy of Justice Chaudhry at the time of his appointment as Chief Justice of Pakistan. Even before his appointment as Chief Justice, he had given a clear indication of what could lie ahead. While dealing with a provincial ordinance passed during the military rule of General Musharraf, he had made the following observations in December 2004, in the case of Arshad Mehmood vs Government of Punjab PLD 2005 SC 193:
“It is important to note that Ordinance of 1999 could not be placed before the Provincial Assembly to make it an Act because during its subsistence the Provincial Assembly was suspended on account of the military takeover on 12th October, 1999. Therefore, it may be legitimately presumed that in the enactment of Section 69-A of the Ordinance, the public views through elected representatives were not included. Thus, in the absence of public opinion in promulgating Section 69-A of the Ordinance, it may not be difficult to infer that it was not promulgated in the public interest and general welfare etc. Indeed, had this law been discussed in the Assembly, through the representatives of the public, it might have changed its complexion, to bring it within the command of Article 18 of the Constitution.”
General Musharraf and his legal advisers should have realised that a judge who believed that public interest and public welfare could only be gauged and served through representative institutions would be a serious threat to his version of democracy. To hand over the reins of judicial power to such a person and that too for a tenure which could last up to the year 2013 was nothing but brinkmanship on the general’s part.
The events reported so far appear to suggest that having dispensed with the Chief Justice of Pakistan for the time being by suspending him or making him ‘non-functional’, the government went into full gear to give constitutional cover and legal semblance to this erstwhile naked exercise of raw power. Had such an action been taken by an elected civilian government, it would have been toppled by the military within hours.Initially it was claimed by the government that the president had filed a reference against the Chief Justice of Pakistan under Article 209 of the Constitution of Pakistan, 1973, only after he was unable to satisfy the uniformed president of his innocence in the COAS House which happens to be the camp office of the president. However, subsequent events showed that the reference was not ready even when the Chief Justice first appeared before the Supreme Judicial Council on March 13, 2007. In the meanwhile, some of the spin doctors of the government unleashed a campaign to malign the Chief Justice who was not only legally presumed to be innocent until proven guilty but still held the highest judicial office in the country.
It was indeed exhilarating to see that the advent of an independent electronic media has completely transformed the rules of the game. The media not only brought the unfolding drama live into our homes, it also aired the views and comments of independent analysts as well as some of the most respected former members of the judiciary itself. This not only frustrated the government’s blitzkrieg but also generated public interest which the event certainly deserved.
It is repeatedly being argued that the fate of Chief Justice Iftikhar Chaudhry now rests with his peers in the Supreme Judicial Council. For that reason, people have been asked to refrain from commenting, lest they prejudge the issue and prejudice the atmosphere. Nobody should interfere with the functioning of the Supreme Judicial Council. This may even constitute contempt.
It is indeed correct that where a legal issue is sub judice before a court, let alone before the Supreme Judicial Council comprising some of the senior-most judges of the country, prudence and restraint are required. Thus, the narrow legal issue as to whether there are sufficient grounds against the Chief Justice of Pakistan which constitute misconduct calling for his removal from office must be left to the Supreme Judicial Council.
However, the larger issue which is neither before the Supreme Judicial Council nor prone to legal resolution is about the role of the military in running the affairs of the country. Notwithstanding the pretension that the action against the Chief Justice was taken by the president of Pakistan on the advice of the prime minister, there is absolutely no doubt that real power rests not with the prime minister or his cabinet but with the chief of army staff who also occupies the office of president. A legitimately elected president or prime minister, however powerful, would not have opted to summon the Chief Justice to his office and detain him and if he did so, could not have survived in power. It is the office of the chief of army staff and the raw unchallenged power which this office carries with it that emboldened General Musharraf to launch this adventure.
Unless the military as an institution is completely depoliticised and the people of Pakistan wrest control of the government through electing representatives, these destructive tendencies which were shamelessly displayed on March 9, 2007, will continue to haunt the country. The first step is to insist that the office of president and chief of army staff cannot be held by the same person. It must be realised that this is not a simple legal problem. We must not expect our courts alone to show the door to an unwilling, ambitious general. He will not surrender power voluntarily. It is a national political problem. All the forces of the country would have to coalesce together for restoration of constitutional rule. As usual, the legal fraternity has taken the lead. The people must now follow suit.
This is a turning point for the country. By severely manhandling the Chief Justice of Pakistan, the military establishment has overstretched itself. While it wants to demonstrate its power, it is exposed and looks weakened as never before. The general has never been so vulnerable. This is a moment which could determine the fate and future of this country. If the people seize the moment and take the initiative, this would be our second liberation. If they miss it, the general will succeed in his second coup as well. After that, the country would be in the wilderness with darkness all around.