The Transparency International surveys indicate that Pakistani Judiciary is the third most corrupt institution after Police and Customs. And there are very broad and sweeping laws permitting the judges to hold any one in contempt of court with few, if any, legal and constitutional mechanisms to hold the judges accountable.
While recognizing that Pakistani Judiciary does not have an illustrious record, I absolutely admire CJ Choudhri for his courage in standing up to a dictator. Although we know he is no angel (he was sworn in as CJ by accepting the last PCO by Musharraf when Justice Wajeehuddin and others refused to do so), he set a new example by refusing to give in to Musharraf. However, I fault him for lack of wisdom in dealing with the real issues of restoring democracy after his return to the bench. Instead of focusing on the key issues of restoration of democracy, he and his cohorts on the bench initiated more than 100 suo moto actions, unheard of anywhere in the world.
Supreme Courts in most democratic countries are very selective about the cases
they hear. They do not dissipate their energies on trivial matters, and leave these for the lower courts to adjudicate.
There is also the concept of separation of powers in all democracies. Executive, legislature and judiciary are considered co-equal branches each with its own powers. However, Justice Choudhri & Co were bent upon taking over the executive powers by ordering around the bureaucracy in routine matters of traffic, and other law and order issues. I think Choudhri had a historic opportunity to help transition power from military to a democratic government which he bungled badly by his aggressive and vindictive behavior. Instead of attempting to overthrow
Musharraf by confrontation, he would have been better off in ensuring elections for a new assembly and new civilian government. Now, I'm afraid the lawyers may be alone in this fight without real serious backing by either the political parties or the ordinary people on the streets.
It is understandable that most of the average Pakistanis are quite cynical about the prospects for real democracy that addresses their issues and concerns. It is this cynicism born of
actual experience of the people that is so toxic for the Pakistani society.
I wrote the following, as early as March 2007
Knowing When to Stop ( Dawn 27.3.07 & Frontier Post 25.3.07)
I often wonder why our nation manages to extract defeat from the jaws of victory. I am not talking of cricket.
I was able to identify at least 3 important historical moments when history of Pakistan would have changed, had we known when to stop, and bank our profits.
1. In 1969, an agitation for restoration of democracy was launched by Air Marshal Asghar Khan and others against the Ayub regime. It was no mean achievement that the all powerful military government was really shaken. Ayub Khan offered to hold elections within 6 months and to hand over power to the elected leaders. But Air Marshal Asghar Khan was thumping the table and demanded immediate hand over of power. There was no elected civilian leader who could have taken over immediately. The only person who could take over was Gen Yahya Khan, and he did. Air Marshal Asghar Khan and his colleagues did not know when to stop. Having achieved 90 percent of their goals, they tried for 100 percent and lost everything.
2. In 1977, the combined opposition launched a campaign against Mr Bhutto. It was no mean achievement that the all powerful Bhutto was ready to meet 90 percent of the demands of his opponents. But they wanted 100 percent – Bhutto must go immediately! Bhutto did go, but it was Zia who took over. Our politicians in the opposition did not know when to stop!
3. In 1997, Chief Justice Sajjad Ali Shah had the Prime Minister Nawaz Sharif in the dock. It was no mean achievement for a judge in a third world country to be able to summon the Prime Minister. Even in the West, such a situation would be quite remarkable. The Chief Justice had achieved 90 percent of the goals and could have accepted an apology. But he wanted a hundred percent victory. The rest is history. Alas he did not know when to stop!
Today we have another watershed moment in our history. Will the agitators know when to stop? Will they accept 90 percent victory or must they lose everything to achieve 100 per cent? The smell of victory is quite intoxicating and it blurs one’s judgement. Will they extract defeat from the jaws of victory? Will the nation face a coup a-la-GHQ?
I also wrote more recently:
What Supreme Court could have done. (Frontier Post 17 nov 2007)
I wrote on the subject in March 2007, under the title “Knowing When to Stop” ( Frontier Post 27th March 2007). It is very tempting for me to say “ I told you!”, but the events are too traumatic for me to do that.
I said then that our nation always extracts defeat from the jaws of victory, because we do not learn when to stop. This happened in 1969, 1977 and 1997. Having achieved 90 per cent of our goals, we do not stop and consolidate our position. We go on fighting to achieve total humiliation of the opponent. Instead of a 100 per cent victory, we end up with total defeat.
This time, the Supreme Court had asserted itself and would have had a major role to play in our national affairs, in future years, had the Court avoided the path of confrontation. This should have been done,not under any pressure, but in the supreme national interest. The Court could have declared that the President’s election would be valid, but with the following conditions:
1. Gen Musharraf will give up the Army uniform BEFORE he takes the new oath as President. In this way Gen Musharraf will be a civilian when he takes the oath.
2. Gen Kiyani will be sworn in as Army Chief, in the same ceremony, immediately after the Presidential oath.
3. Gen Musharraf must seek a new vote of confidence from the next assemblies, within a specified time. If the vote of confidence is not granted, the office of the President will become vacant.
Alas, it was not to be!
I wrote the following:
Great Legal Issues & Mediocre Lawyers (Frontier Post 31 Oct 2007)
While Aitzaz Ahsan is basking in election victory, one wonders why our nation produces mostly mediocre personalities who then manage to reach top positions in most of the professions. Recent great legal issues have exposed our dearth of great lawyers. I invite your readers to consider the following recent episodes:
1. Mr Eitzaz Ahsan argues in the Supreme Court that elections in Pakistan cannot be postponed even if there is a state of emergency. He quotes the example of the British Parliament and quite wrongly claims that British elections were not postponed even during the 2nd World War. Yet, nobody from the gathering of ‘eminent’ lawyers challenges him. The historical fact is that in 1945 the British parliament was 10 years old. There were no elections between 1935 and 1945. Perhaps, on a different note, Mr Aitzaz Ahsan could have suggested that Gen Musharraf should follow the example of Winston Churchill who, having led the nation to victory in the war, gracefully accepted the voters’ decision to sack him in 1945 elections, just a few weeks after the German surrender!
2. The court asks the Attorney General Justice (R) Qayum about the date of expiry of the current Presidential term of office. He replies that he will have to ask the President! On a different note, the court points out to him that he had himself given a decision as a Judge, that is contrary to his present arguments. He replies that his judicial decision was wrong! The incompetence is breathtaking. Are we watching a comedy show?
3. Mr Nawaz Sharif’s ‘undertaking’ is being discussed threadbare in the court. Yet no one from the Govt’s team mentions the example of ‘undertakings’ signed by employees. Such undertakings are always considered as binding contracts by all employers. Similarly confidentiality and loyalty undertakings signed by any national is his/her binding contract with the nation. Most of such documents are signed by only one party. Another example is a consent form signed by a patient before surgery in a hospital.
4. While the destiny of our nation is at peril, our ‘great’ legal minds exchange jokes about luncheons, during the court hearings. Even the great name of Quaid e Azam is dragged into a joke about Sharifuddin Pirzada, when he is humorously called ‘Quaid’s second ehsan’.
5. One recalls the charade of CJP’s removal in March 2007, when the top legal experts in the Law Ministry cannot decide whether this is suspension or compulsory leave or something else.
My earnest appeal to the legal fraternity is to sharpen their legal skills and leave slogan mongering to others.
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