Spotlight: Lawyers never had it so good!: Judiciary takes a giant step to live down its past!

It was euphoria-the-third experienced and witnessed by the people of Pakistan in as many years! It was centered each time on CJP Mohammad Iftikhar Chaudhry and his actions. His resounding restoration-the-first by the Supreme Judicial Council in July 2007 following his sacking-the-first by Musharraf in March 2007 was occasion-the-first for widespread joy and hope.
After his sacking-the-second by Musharraf in November 2007 and a 16-month long popular struggle that followed it, his restoration-the-second materialised in March 2009, in the teeth of opposition by the PPP government of President Asif Zardari and provided the setting for euphoria-the-second. Now on 16 December 2009 the Judiciary has taken a giant leap to live down its inglorious past, spread over 60 years.
This is occasion-the-third for rekindled joy and hopes of endemic proportions. The past record of political parties in this respect is likewise dismal beyond doubt. As for the third leg of the tripod of the power structure or the third side of the quadrilateral (if you include the Media), namely the Army, it is too near in the past out of its role as usurper of political power for us to make any comment at this point in time on what it is likely to do in the long term.
So far, however, the signs in its case are positive. But for now let us be happy as long as we can and bask in the sunshine of Judiciary at last coming into its own along the path of justice and fair play after a long history of pandering to the misplaced whims and ambitions of both civil and military dictators. The direction in which the new Judiciary under CJP Chaudhry was moving was clear from day one. Recent developments have indicated that its efforts have started bearing fruit.
A good example of this was the way the Judiciary was successful through its single-minded endeavours in apprehending two of the main culprits, among several others involved, from outside the country in the BOP Rs nine billion scam case, and in taking effective steps to get the loot back - a first in recent memory in this much ill-used country.
But it was its Judgement on the NRO that really electrified the nation and kindled hopes of a better, more secure and more honourable position for it among the nations of the world. There is however a case for ensuring that accountability is not selective.
Therefore it should not be confined to cases highlighted by the NRO but should also include all those cases which are pending action and conclusion in NAB files or have not been opened at all. To be fair, the Supreme Court was moved by Dr Mubasshir Hasan and others in respect of NRO cases and the Court has given its decision.
It so happens that big names of PPP are involved in these cases among others. The way is open for any one now to move the Supreme Court in other cases where financial wrong doing by others including the leading lights of PML-N and PML-Q is alleged by PPP supporters or others. Despite the euphoria generated by the decision across the country it would be naïve to think that the government of President Asif Zardari despite all the soft talk about the decision, will take the matter lying down.
Despite widespread calls for the President to step down (PML-N leaders have suddenly joined he chorus while their chief sings a different tune) it will be stupid to expect the President to give up his immunity from certain legal moves that he enjoys as President. Far from it, in fact, a covert, and at times overt, battle royal against the Judiciary is being vigorously lined up it seems.
The immunity clause of the constitution is also getting close attention. Does immunity apply to non-governmental actions of the President? What about alleged offenses committed when he was not President? One of the first actions of FIA officials in the aftermath of the SC verdict, was to inform the honourable Defence Minister Mr Ahmed Mukhtar that he was on the Exit Control List just as he was set to board the aircraft on a flight to China on an official mission accompanied by the Naval Chief.
The Chinese ambassador was around for the occasion. This was an unnecessary affront to the Minister and an embarrassment for the country before the world and before China in particular. Was the poor-timed incident a case of inefficiency on the part of officials or a deliberate sabotage attempt to malign the Judiciary under whose orders the ECL was implemented in the case of Mr Ahmed Mukhtar among others?
Was the incident stage-managed to prove that the Judiciary was disturbing the business of governance? If it was not, and misunderstanding and confusion was the cause, then similar, unintended situations can arise with potential to bring one arm of the state into direct conflict with another leaving various departments and functionaries confused about who to obey. All the pillars of the state will need to play their parts carefully but without losing sight of the final goal.
THE FIGHT BACK That the PPP government has decided to "fight back" Judiciary's moves despite all the professions of respecting its decisions in letter and spirit, is obvious from various happenings within two or three days of Judiciary's landmark decision of 16 December 09. A number of incidents that have taken place around this time indicate that, though all government functionaries concerned have solemnly declared their acceptance of Supreme Court decisions, they appear to be also working at times at cross purposes with it.
Much is made of the argument that since President Zardari was elected by a due democratic process, is a popular leader and therefore there can be no moral justification for his removal as President. This argument conveniently ignores the fact that much water has flown under the bridge since Mr Asif Zardari was elected President.
By his unpopular postures and decisions, poor choice of ministers and advisers and by creation of a subservient Judiciary under Abdul Hameed Dogar, he has lost his popularity and trust which is now said to be below 20 %. There is also an oft repeated argument that cases against Asif Zardari and many others could not be proved even in a decade, therefore there is no truth in the allegations against them.
This argument is false because in Pakistani courts cases drag on for years and adjournment is routinely granted on the flimsiest grounds. Also, it is alleged that a large number of adjournments may have also occurred on pleas of ill health by the accused. So the alleged "decade of trial without proving anything" could do with some in depth analysis to separate fact from fiction.
There are noises being aired through various "experts" that the Judiciary is exceeding its brief in assuming functions which are the prerogative of the executive. Also, Barrister Mohammad Ali Saif who has defended President Musharraf very strongly on almost every issue as his erstwhile spokesman, has attacked the Judiciary scathingly for (as he sees it) usurping executive functions and intrusion into areas not in its domain.
While the government people from President and Prime Minister down have reacted respectfully, at least verbally, in their comments on the Judiciary and its recent decisions, Barrister Saif is not bothered about niceties and has attacked the judiciary quite vociferously, unmindful of possible contempt involved. Considering the state our governance is in today however, we think the Judiciary may be excused for exercising a certain amount of pragmatic license till things change to normal.
Objections have been raised on formation of Monitory Committees by the Supreme Court to oversee the working of the accountability cases and this is cited as another example of the Supreme Court's "activism" and interference in the executive area. It has been pointed out by more than one legal expert, on the other hand, that monitoring of accountability cases by the Judiciary is a practice of long standing and not a new development.
It has come into sensitive focus now perhaps because several high ranking government functionaries are facing NRO-related cases. Moreover with several Ministers in the Federal cabinet being handicapped by the fact of their being under trial themselves for assorted alleged wrongdoing, monitoring of accountability cases in their areas of responsibility by the Supreme Court makes eminent sense.
On another "front" and sadly, the "Sindh Card" syndrome appears to be in full play again with the Sindh Assembly passing a unanimous resolution reposing full confidence in President Zardari. There does not seem to be any possibility, however, of any of the other three provinces following suit in the same unanimous manner, if at all. It is interesting that Asif Zardari and MQM appear to have joined hands once again in Sindh, at least for now, against the "common threat" of NRO cases now alive and kicking.
Chief Minister Qaim Ali Shah has thought fit to warn unnamed entities "not to take the Sindh Assembly and the people of Sindh lightly". For good measure, Pir Mazharul Haq thundered that no lesson has been learnt from the separation of East Pakistan and demanded, for good measure, action against judges who "supported the military take-over a few years ago".
In another instance, Babar Awan, himself answerable in NRO cases has been given additional charge of the Law Ministry so that NAB, which has to pursue NRO cases against him and others, is now placed squarely under him! PM Gilani's bizarre and confusing reaction to Ahmed Mukhtar's China visit fiasco, is another straw in the wind. Secretary Interior Chaudhry Qamar-uz-Zaman and three officials of the FIA were held responsible and suspended.
This has queered the pitch about the jurisdictions of the various centers of power in the country. With various ministries handicapped by the fact of their chiefs being themselves accused in high profile cases and figuring in the exit control list to boot, it was only to be expected that the Judiciary would have to move to fill the vacuum of authority. But obviously President Zardari's government does not appear to see it that way.
In another sphere of current goings-on, both President Zardari and PM Gilani have been taking belated steps to show that they have not lost the initiative internally or in external relations. President Zardari has been talking tough with President Obama for a change, apparently differing with him on expanding the war to new areas of the Tribal belt. Visas for American functionaries wanting to come to Pakistan have been withheld inviting some worried comment from the US functionaries.
But this too-little-too-late bravado does not appear to achieve anything except to create a ripple or two in our internal politics. The big picture for the PPP government is not a bit changed by this cosmetic posturing. In this grim scenario Governor Salman Taseer has played the clown and provided some comic relief by advising President Zardari to resign in 2018. One wonders why the Governor is being miserly. Why not offer his mentor Presidentship for Life.
LAWYERS NEVER HAD IT SO GOOD! Are lawyers supposed to defend the guilty knowingly? This question came into sharp focus with disclosures of huge payments made to several prominent leading lights of our legal profession for taking up cases of a patently dubious nature! Among them the name of Aitzaz Ahsan (who had defended "deposed" Chief Chaudhry Mohammad Iftikhar for over a year for a fee of Rupee one and thereby earned goodwill of an overwhelming majority of Pakistani people) stood like a sour thumb.
Aitzaz Ahsan admitted to receiving the sum of Rs 15 million (which he included in his return to the Tax authorities) for his services for Shaikh Afzal, Chief of Haris Steel Mills, the main culprit in the Bank of Punjab scam case, against the Shaikh's claim that he was paid Rs 30 million. Perhaps another 15 million were to be paid on successful conclusion of the case. Between the two I would have no hesitation in believing that Aitzaz is telling the truth.
I am tempted to quote here from Spotlight of an August 09 column as follows: "President Musharraf appears to have been very generous with money that was not his own: He paid Rs 8.2 million to Wasim Sajjad, Rs 8 million to Sharifuddin Pirzada, Rs 6 million to Khalid Ranjha, and Rs 4 million to Malik Abdul Qayyum to represent him in the cases against CJP Iftikhar Mohammad Chaudhry which they all lost to Aitzaz Ahsan who charged little or nothing for representing the CJP!" Obviously, as we said, Lawyers never had it so good as right now!
Aitzaz has said (as far as I could understand) that his services for Shaikh Afzal were limited to satisfying the court that the Shaikh has enough assets, through disposal of which he would be able to make good his promise to return the loot. However the wider question about the ethics of accepting tainted money from a tainted source will not be argued away easily.
Has Aitzaz metamorphosed into a person with a different set of values following his two recent, long meetings with his party chief? In a recent TV interview I chanced to see he appeared to be ridiculing the part of our election rules requiring that candidates to elected offices meet a certain minimum ethical criteria to qualify, that he be "sagacious, righteous and non-profligate and honest and Ameen".
He and the anchor man appeared to agree rather gleefully that application of those standards would empty our Assemblies and added (quite unnecessarily) that even the Ulema would not qualify. They may be right in respect of our elected members sitting in various houses. But so what, one may ask? Look at what such elected people with dubious character have done to this great country over the last sixty years.
There is on the other hand a very strong case for not only maintaining those prequalifications but also creating a structured procedure for implementing them strictly so that, for a change, we have honest, upright people sitting in positions of responsibility in the government instead of those whose only objective in securing high office would be to satisfy their lust for loot and plunder.
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