"Judges rule on the basis of law, not public opinion, and they should be totally indifferent to pressures of the times." [Warren E. Burger (1907-1995), Chief Justice, US Supreme Court]
The best thing that best explains Supreme Court's July 20 judgement is: it's never too late to mend! As is being claimed it's historic, it's daring, it's a people's verdict, it's a turning point in Pakistan's history; of course, it is all these or may be more than that! But things are meaningful only in a context. Without context, they lose their import also. So, they must be put in their proper context to be understood rightly.
This is more so with Supreme Court's judgement that unanimously reinstated Mr. Justice Iftikhar Muhammad Chaudhry, Chief Justice of Pakistan, setting aside the presidential reference against him. Besides its own significance, what make the judgement 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 judgement in its proper context so that its implications may be figured out.
There are three temporal contexts the judgement may be placed in: i) what transpired before the reference was filed against the Chief Justice; ii) what transpired from the moment the Chief Justice was in the Camp Office of the President of Pakistan, and Chief of Army Staff, General Pervez Musharraf, to the moment the judgement was announced re the Chief Justice's constitutional petition in the Supreme Court of Pakistan; and, iii) what is transpiring now after the judgement and what will transpire in future.
Let's start with the second context: "It's said that lawyers' movement for the restoration of the Chief Justice was inspired by political motivations: that the lawyers were committing to politics. The objection was raised, debated and contested passionately at every forum." But the whole debate missed the point that neither the Chief Justice nor the lawyers were motivated by power politics. The lawyers are not a political party; they are a lot heterogeneously composed of diametrically opposed political and religious groups and parties.
The Chief Justice was (and, fortunately, is) a government official and was fighting his case first in the Supreme Judicial Council and then in the Supreme Court of which he was the Chief Judge. He couldn't be shown having any such intentions.
It was further objected that while travelling to address the bar associations to various cities he led huge processions. It was the first opportunity when he, along with his lawyers, travelled to Peshawar to address the High Court Bar Association there that they learnt the lesson. Yeah, the most "valid" objection to his travelling to Peshawar by road may be why he didn't fly to Peshawar! But let there be benefit of the doubt this time. It was the first travel of Chief Justice after being rendered 'ineffective' and he and his lawyers never knew that huge crowds were awaiting the Chief Justice at every milestone.
They were surprised by this unprecedented welcome accorded by the people. The objection that the Chief Justice like political leaders led rallies assumed that it was the privilege of the political parties' leaders only, and that the processions or rallies were organised by the Chief Justice and his lawyers ('his comrades') to build up a certain campaign. Obviously, it was not like that. The people came of their own to these rallies to show their appreciation of Chief Justice's NO to a dictator.
But you can hang them all for learning the lesson: after the Peshawar travel and address, the Chief Justice's lawyers used to announce the Chief Justices' schedule to go to this or that city to address the bar associations beforehand and they deliberately travelled by road. But did he or they make any call to the people to come to welcome the Chief Justice? Never! The bar associations were supposed to do that and that but to lawyers only.
But if you want to hang them all for learning this lesson, hang them all who were making speeches against the Chief Justice, harassing various potential witnesses to win them to the government side, doing everything that a ruthless government could ever be able to do to have its 'writ' established, preparing the affidavits and more references against the Chief Justice in the most bizarre manner, and last but not least, trying to influence the honourable judges hearing the Chief Justice's petition. But the question is whether the Chief Justice 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? If all this is political, why did our politicians never speak of it and take to it?
The historic travel of the Chief Justice from Islamabad to Lahore was an eye-opener. 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; and then it opened a new one against the media.
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 Chief Justice's travels and addresses that deprived the people of what they wanted to watch and enjoy.
Probably, these and such other objections meant that the Chief Justice should sit in his house and see how the Court proceeds and decides about his case. His counsel should not go out to win the support of the people. The legal community too should not come to his aid or to his rescue; they should limit themselves within their own courts' premises. 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 Chief Justice's processions, rallies and addresses were aimed at influencing the honourable court. Some of the Chief Justice's counsel also made the mistake of uttering such public statements that they won't accept a verdict inspired by the doctrine of necessity; that they would burn the Court in case of an unfavourable judgement; that they would continue their movement until the restoration of the Chief Justice if the Court did not restore him. This earned a very bad impression of 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 questions on the nature, character and objectives of this movement. When asked if they would accept the Court verdict, the counsel of the Chief Justice used to reply they won't if it favoured the government. They were further asked if they did not trust the Court.
They said they did, but they wouldn't accept judgement like Justice Munir's. This was impossible: one can't trust a thing and at the same time mistrust it. On this issue, the leaders of the lawyers' movement were confused. They had no clear answer to this objection. They are still without one.
If the Chief Justice'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 judgement. Also, this brings us to the first context: what transpired before the reference was filed against the Chief Justice.
There were/are attempts at finding answers to the question. Their focus is the judiciary's past character. The boldest statement in this regard termed judiciary as B team of Pakistan Army; and appealed to it to act instead as A team of people. The first step towards this transformation of the judiciary was indicated as the reinstatement of the Chief Justice.
It was clarified that since in the past judiciary had been legitimising the military take-overs and providing them with constitutional covers, it was likely that it would slip under the pressure of the present military regime to make an influenced verdict; and that was why a 'thrust' from outside the court was needed to give it support. They say hadn't lawyers come out to the rescue of the Chief Justice he must have still been in a state of house-arrest cut off from the outside world. It was the pressure of this movement transmitted very forcefully by the media especially electronic media that got him released; otherwise he would have been made ineffective literally.
That is conceded, but when he was out and home in his own Supreme Court with his case before the full bench, weren't the lawyers then supposed not to be around him, taking him in rallies to various cities to address the bar associations? Wasn't now up to the apex court to see to his petition? Why were the lawyers, civil society and political activists there then? It was no business of them to be around the Chief Justice and the Court then.
Another such attempt presently in vogue derives strength from the 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 140 million remained silent.' This unequivocally defends the present lawyers' movement and the participation of civil society organisations, political and religious parties in it. It worked as support to the few judges in stopping a coup leader. Now Justice Dorab Patel should rest in greater peace that a nation of 169 million did not remain silent.
Does this prove that it was this movement that midwifed the birth of the judgement of July 20? Of course it did, but in the eyes of only those who hold such a view. It is for those who are Dorabians and believe that without such a movement no such judgement could have issued forth from the full bench of the highest court of the country. Also, this requires that they should not believe in the Constitution which clearly dismisses such military take-overs and prescribes the strictest punishment for its violators. It means that the custodian of the Constitution, the judiciary, needs people's support to protect, defend and interpret the Constitution in accordance with the spirit and provisions of 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 judgement and what will transpire in future regarding the judgement?
(To be concluded)
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