Behind the Chairman’s Door

This Op-Ed piece was picked up from the Sunday Daily Dawn. It provides a very interesting look at the past and current leaders of Pakistan and their contributions to Pakistan. Great reading and posted here for your consumption.

Government spokesmen have been saying all along that the lawyers and their supporters have unduly politicized a constitutional issue that should have been left to appropriate judicial forums to deliberate and settle. The lawyers’ movement started as a protest against General Musharraf’s thoughtless and arrogant encounter with the Chief Justice of Pakistan on March 9 and his administration’s rough and humiliating handling of him during the next three days.

Leaders of the bar associations and councils have declared repeatedly that they are striving not only to protect judicial independence but also to put an end to military rule and restore democracy, and that their movement will not stop until these goals are achieved. In other words, they are attempting to replace the present political system with one they regard as more desirable.

This part of their agenda is undoubtedly “political”. In an article in the Dawn newspaper on May 12, notable for its flowing and noble prose, Mr Munir A. Malik, president of the Supreme Court Bar Association, argues that politics can be a fine calling. Relying on Aristotle, he views it as concern with the affairs of the state and its citizens.

Supremacy of the Constitution, rule of law, and the maintenance of fundamental rights affect the lives and well-being of all citizens and are thus pre-eminently political issues. It is in this sense, he says, that the lawyers’ movement is “political to the core”. Its concerns cannot be protected except in a democracy.

The lawyers’ interest in these issues and their interest in the restoration of democracy are thus “inextricably” connected. In all of this they are acting of their own accord. But if political parties and other social forces choose to support their cause, it is not only their right but obligation to do so.

There is more to the matter of judicial independence than the fact that the present government’s recent actions were calculated to subvert it. Judicial independence is lost not simply because an outsider is attempting to bend the judges to his will. It is lost only if and when judges become receptive to his promises of reward or amenable to his threats of penalties.

In the present situation, it is not the presidential reference against the Chief Justice but the intimidation, indignity and attempted coercion to which he was subjected that posed the threat to judicial independence. The attempt failed.

Government officials, including General Musharraf, have regretted and apologised for their high-handedness. They have relented on several of the moves they had initially made. Proceedings in the Supreme Judicial Council concerning the reference have been halted.

The “full court” is hearing the Chief Justice’s procedural and substantive objections to the government’s case. The protest against the government’s initial actions has been abundantly registered. In the resulting environment, the judges are likely to be free to speak and act as they deem fit. May we then say that the threat to judicial independence has passed, and that it is now time for the lawyers to take a break and stop their movement?

That, I suspect, is not going to happen. The lawyers may feel that while the threat has abated as a result of the popular protest, it may arise again with full force if things quiet down but military rule continues. Their struggle for the restoration of democracy may then continue even if its present scale and momentum decrease to a degree.

An intriguing change has come about in the temper of the times and the nation’s attitudes. Not only lawyers and politicians but other professionals, including poets, writers, and creative artists are making an appearance in the anti-government rallies.

I saw Ahmad Faraz and Kishwar Naheed (poets) and Bushra Rehman (novelist and pro-government MNA) on a television talk show the other day. Bushra Rehman said Ghalib, Dagh and Iqbal had never gone out on the streets carrying placards and shouting slogans, and that it was unbecoming of writers to participate in political rallies and demonstrations. Kishwar Naheed recalled that Hasrat Mohani, and, more recently Habib Jalib, had done so and even gone to jail for their political opinions and activism. She and Ahmad Faraz argued also that they were first and foremost citizens of Pakistan and as such it was both their right and duty to defend the cause of liberty and democracy.

The opposition to the present regime had lately been in disarray and running out of steam. Seeing that the judicial crisis had aroused the people at large, they decided to make common cause with the lawyers and other protesters.

To the best of my remembrance, none of the major political parties in the country has ever before been agitated about judicial independence. PML and the PPP each tried to seduce, intimidate, and harass members of the higher judiciary when it was in power. The three Islamic parties, ANP and Tehrik-i-Istaqlal have never had the chance to manipulate judges.

But I have never found any of them perturbed over the Supreme Court’s invocation of the doctrine of necessity to legitimise military coups. They have jumped on to the anti-Musharraf, pro-judiciary bandwagon not because they are zealously devoted to judicial independence, but because they see it as the rising tide and they have chosen to swim with it.

Before March 9 their own marches and demonstrations were fizzling out. They have gained greater visibility by associating with the pro-CJP movement.

They are synchronising their own rallies and demonstrations with the Chief Justice’s travel plans as he goes to various cities in the country to address bar associations. Dr Farooq Sattar of the MQM has recently “accused” them of exploiting the pro-judiciary protest for their own purpose of destabilising the present government.

This is true, but it need not be stated as an allegation. The opposition parties are unequivocally committed to the removal of Gen Musharraf’s government, and in pursuing that goal, which is generally regarded as worthy, they are entitled to make use of the opportunities that come their way.

Justice Iftikhar Mohammad Chaudhry says his objective in travelling to places to address lawyers is entirely non-political. That may be true. But he must know also that regardless of his own inclination he has become the focal point of a tumultuous anti-Musharraf movement.

The opposition political parties are able to put up a good show in various cities because he is visiting there. Their meetings and rallies would not amount to much if they did not coincide with his presence in those places at the time. His partisans will argue that he is entitled to accept speaking engagements and travel to keep them, and that he is not responsible for what opposition political parties and others do where he goes.

This, again, is undoubtedly true. But there is another aspect of the matter, which might also be considered. A few weeks ago, when I was in Lahore, I came across quite a few people who maintained that even if the Chief Justice had used his official position to advance his son’s career, that was no big deal, for others in high places did the same.

Kunwar Idris, on the other hand, wrote in this newspaper that, yes, many others did use their official power and prestige to promote the personal interests of their friends and relatives, but that which was acceptable on the part of ministers, generals and politicians would not do for a judge.

That is true also. In pre-independence India, judges, especially members of the higher judiciary, remained aloof from public gatherings, limited their social interaction to close relatives and friends, refrained from expressing their opinions on social or political issues except possibly in the course of hearings in the courtroom or their judgments in the cases they settled.

This tradition of restraint changed to some extent after independence. Judges began to appear in public places and some of them addressed gatherings. But none of them addressed any kind of rallies, processions or demonstrations.

Justice Chaudhry has been addressing groups of lawyers. His message on all of these occasions has been essentially the same: supremacy of the Constitution, rule of law, fundamental rights and judicial independence, and the caveat that none of these can be secure except in a democracy.

Insofar as the lawyers insist that their judicial and political agendas are inter-connected, Justice Chaudhry’s appearance and participation in their rallies had already been taking on a political colouring. But the gun battles between his supporters and the pro-government forces, including the MQM cadres, and the large number of the resulting deaths and casualties, have doubtless made him a political person. He did not want this to happen, but it did.

His message to the lawyers is well known to them and all of us by now. If their movement continues, then the next time they invite him to address their meetings he might consider faxing the text of his speech to them, instead of travelling to the venue to deliver it in person. That would take the fanfare out of this exercise and make it appropriately sedate in the old judicial tradition.

If and when the Supreme Judicial Council gets down to real business, it may find that the allegations against Justice Chaudhry are frivolous or unfounded, in which case he will be reinstated.

In that event, having been vindicated, but in the meantime having become a political person, even if against his own wishes, he may wish to resign his office. Following the developments of the last several weeks, it may not be appropriate for him to serve as the Chief Justice of Pakistan.