Dear Mr Ali Ahmed Kurd, I'm sure that my name will not ring a bell in your mind and you would certainly be clueless about the writer of this letter. Let me start by introducing myself. I am a legal practitioner who returned after the call from the bar from Lincoln's Inn only three years ago. In other words, I am a minnow of the profession of which you are a giant. I distinctly remember the days when the historic movement against the sacking of the Chief Justice Iftikhar Mohammad Chaudhry started. I was at that time studying law in England.
Of all the activists of that movement your energy and commitment to the cause impressed me and my other young colleagues, the most. You won the admiration of millions of people by challenging the dictator and his allies at a time when he was at the peak of his powers. You became an icon for the independence of judiciary in the eyes of my many fellow colleagues in Lincoln's Inn.
However, I was amazed rather shocked at your recent advice to the parliamentarians, that the laws relating to the contempt of court are not good laws and Article 204 should, therefore, be repealed from the book of the Constitution. Probably, you did not fathom the ramifications of your statement. You might be having very genuine reasons to be disgruntled with the Chief Justice and other senior judges of the Supreme Court. Your dreams might have gone a bit sour. However, this should not antagonise you with the whole judiciary and entire judicial system.
The present row between the executive and the judiciary is not new. This has happened in all the countries of the world during their democratic transitions. Pakistan is also passing through a transitory phase. Its judiciary has won its true independence very recently and is now striving to delineate the limits of its freedom. In its efforts it might be over-stepping into the grey areas but it would still be prudent and wise to err on the side of judiciary's independence rather than supporting the efforts to clip its wings.
Few will disagree that some of the judges of the Supreme Court are enamoured with judicial activism. But we should not forget that there are judges in the higher judiciary, Justice Saqib Nisar to name one, who have openly expressed reservations about frequency of suo motu actions by the superior judiciary.
The constitutional history of the world tells us many instances of judicial activism. I am not sure but I think that first row between the executive and the judiciary started in the United States of America. United States was then a young country which had won its freedom only for less than 20 years. A row between the third President Thomas Jefferson and 4th Chief Justice John Marshal started in Marbury Vs. Madison case. Being a great statesman Thomas Jafferson tried its best to secure the right of interpretation of the Constitution by the Executive. In his letter to one of the Justices of the Supreme Court, Spenser Roane, the President argued against the judicial review and claimed that "It would turn the Constitution into a thing of wax in the hands of the judiciary which they may twist and shape any way they please. In the final analysis, however, it was Chief Justice's viewpoint, which prevailed and remains uncontested in the history of the United States. The right of judicial review, however, has not weakened the office of the President as the President of the United States is regarded the most powerful man on earth. John Marshal remained the Chief Justice of the United States for long 35 years and his tenure is rife with the instances of judicial activism. Thomas Jefferson and his successors, however, kept settling, their disputes before the courts. None tried to scandalise the courts by issuing denigrating innuendoes against the judges. No one uttered an ugly sentence to bring the judiciary down in the estimation of the general public. In neighbouring India too, there have been a few eventful government-judiciary rifts such as the one in which the judiciary invalidated the Land Reform Acts, to the sheer dismay of the Nehru regime and even after Indian Parliament had gone on to pass the First Amendment in 1951, followed by the Fourth Amendment in 1955 and 17th in 1964, to protect its authority to implement land redistribution. The Supreme Court managed to counter these amendments in 1967 in the Golaknath versus State of Punjab case when it ruled that the Parliament did not have the power to abrogate fundamental rights, including the provisions on private property. Indira Gandhi made a series of attempts through various constitutional amendments to enhance the brute powers of the Executive but Allah Abad High Court's Justice Sinha's famous verdict declared that the Parliament could not use its amending powers to damage, emasculate, destroy, abrogate or alter the 'basic structure' of the Constitution. This goes to the credit of Indian political leaders that the judiciary was never forcefully sacked and the judges were never arrested for giving a decision that was not in line with the wishes of the government. Unfortunately, that is not true for Pakistan. Since our independence the courts have mainly, with the exception of a few instances, remained compliant if not subservient to the wishes of the ruling regimes, especially during the eras of military dictatorships. Our political leaders have also tried to run the country as personal fiefdoms and whenever they encountered a hostile judiciary they preferred to settle the legal battles in political arenas. There is probably no parallel in the constitutional history of the world that a dictator has sacked the entire judiciary and put its Chief Justice under house arrest along with the family members. With such a history Mr Kurd, you are advocating for repeal of the laws of Contempt of Court. In your statement you have argued that 'Contempt of Court' is not a good law and should therefore be omitted from the books of law. You have also cited example of some developed countries where the laws of contempt of court are non-existent. Your statement reminds me of a recent statement by the 'Honourable' Railways Minister who said that many countries including Afghanistan do not have a railway, therefore, it is fine if we do not have it in Pakistan. Your assertion regarding non-existence of laws of contempt of court in the US, however, need to be rechecked as I vividly recall that in Chadwick Vs Janecka, sentence under contempt laws was announced for 14 years, in the year 2002. You have made your statement without peeping into the history of constitutional development of those countries. You have also not taken into account the political culture of those societies. During the dinners at Lincoln's Inn my foreign colleagues could not comprehend as to how the Public servants in Pakistan could so willingly execute the illegal orders of the dictator and turn their guns on the Chief Justice of the country.
Mr Kurd! I would request you to not be disappointed with the political developments in the country. This is the beauty of the democracy that differences would settle in time and better sense would prevail, sooner or later.
The government in Pakistan has been committing the mistakes of fighting legal battles in the political arena. Babar Awan, as the mouthpiece of the government, has been issuing tirades after tirades to tar the image of the Judges. This has not worked and the government has finally decided to settle the legal issues in their proper forum. The Prime Minister has improved his image and stature by appearing before the Supreme Court. In Aitzaz Ahsan they have the services of one of the ablest lawyers of the country. No one can predict the outcome of the case, at this stage. This is, however, a fact that the Prime Minister's speech in his defence before the Supreme Court has brought the temperature significantly down and has removed many misconceptions on both sides. Let's be optimistic that the outcome of this case will be landmark in the legal and political history of this country.
Mr Kurd; I would request you to again reflect on your statement. If Article 204 is repealed, how would you ensure the decorum in the Court rooms, considering the culture of this country and habits of our elitist groups? Everyone in Pakistan expects the courts to give the verdict of their choice. How would these elitist groups react to unfavourable judgements from the courts? In the absence of Article 204 who would ensure the compliance of the court's orders.
Mr Kurd! I and many of my friends look towards you as a hero of this country's struggle for judicial independence. It pains me and the people like me to see you dismantling the same edifice, which you yourself help built at great sacrifice. I hope you would take out a few moments to read this article and heed the request of a junior colleague.