WHAT IS WRONG WITH PAKISTAN'S JUDICIARY?
0 comments | by IKRAM SEHGAL and DR BETTINA ROBOTKA
WHAT IS WRONG WITH PAKISTAN'S JUDICIARY? by IKRAM SEHGAL and DR BETTINA ROBOTKA
During the last couple of years Pakistani judges and lawyers have increasingly drawn the attention of the public to their profession and conduct. Starting from the early days of Pakistan’s existence at a time when the state of Pakistan was young and vulnerable the judiciary has been justifying military take-overs and rulers with the ‘doctrine of necessity’ – surely an innovation in the field of legal theory! On March 21, 1955, Chief Justice Muhammad Munir of the Federal Court (the present Supreme Court of Pakistan) legalized the dissolution of the first Constituent Assembly. In Maulvi Tamizuddin Khan versus the Federation of Pakistan, Justice Munir declared that the Assembly was not a sovereign body. He gave the ruling that the Constitutional Assembly had “lived in a fool's paradise if it was ever seized with the notion that it was the sovereign body of the state”.
Even the much revered (at least by some) Justice Iftikhar Muhammad Chaudhary, formerly Chief Justice of the Supreme Court, took oath under the PCO of Gen Musharraf! Trained by the British or by British law in Pakistan one wonders how this aberration came into being. In any case, it shows that somehow from very early on Pakistani judiciary was fast in pepping up the powers that be but slow in delivering justice to the common man. Some trials took decades to be decided with loads of bribes to be paid in the process and at the end some of the complainants had expired by the time their claim was honoured by a judgment of the court. Even then many of the court judgments could not and can not be executed because a judgment of a weak judiciary does not hold much power of persuasion for the state. That is why other than in the rest of the world lawyers and courts do not hold much respect in Pakistan. There have been many examples in the course of our history starting from the non-implementation of verdicts and peaking, may be, in the storming of the Supreme Court of Pakistan by a mob. Our “democrats” conversantly forget that on 30 November 1997, Sharif appeared before the Supreme Court along with party workers, members, chief ministers, and constituents to hear the proceedings. Unruly party workers stormed into the Supreme Court, forcing Chief Justice Sajjad Ali Shah to remove the finding of contempt against Sharif. Hundreds of PML-N supporters and members of its youth wing, the Muslim Students federation (MSF), breached the police barrier around the courthouse when defence lawyer S.M. Zafar was arguing Sharif's case. A journalist rushed into the courtroom and warned the bench of an impending attack. The Chief Justice rose abruptly, thanked Zafar and adjourned the hearing. The justices quickly left the courtroom but workers were able to enter, shouting slogans and damaging furniture. Close Circuit TVs showed the workers performing “Bhangra” in the courtroom and the corridors of the SC. The mob, led by ruling Punjabi party member Sardar Naseem and retired Colonel Mushtaq Tahir Kheli, than Sharif's political secretary, chanted slogans against the Chief Justice. Famous PTV anchor Tariq Aziz threw and broke the portrait of the founder of Pakistan, Quaid-e-Azam Muhammad Ali Jinnah. Police eventually managed to restore normalcy using batons and tear gas both inside and outside the courthouse, but the court could only proceed for about 45 minutes.
The time of Gen Musharraf’s rule was mainly a smooth cooperation between the two. The reconstituted under his orders court lost no time to prove its worth. Its judgment in the case of Zafar Ali Shah validated the takeover of the government by General Musharraf. It is, indeed, an ironic comment on the times in which we live that the then Chief Justice of Pakistan, Irshad Hasan Khan, openly flaunted and distributed the copies of his infamous judgment at international judicial conferences to demonstrate his genius in jurisprudence. After the judgment in Zafar Ali Shah‟s case, the superior courts pronounced a number of decisions validating the referendum that installed Pervez Musharraf as the President of Pakistan. Notwithstanding the fact that he continued to don the military uniform and the 17th Amendment, it is interesting to note how blatantly the judges and the dictators watched each other’s interest. This was not the end of it, since then the lawyers themselves have taken to violence. It started when CJ Chaudhry was removed and the lawyer’s movement began when the lawyers announced a three-day-protest and a complete strike of courts to condemn the attack on the judiciary. Protest rallies were staged across the country and lawyers boycotted the courts. On March 12, 2007, a clash took place between the lawyers and the police in Lahore, which left several people injured and set the tone for highly charged protest rallies that were to follow. The police tried to stop the Chief Justice from moving towards the Supreme Court and blocked his way, manhandling him, pulling him by his hair and forcing him in a car. The images were broadcast live on the television channels, and the next day every newspaper carried the picture of the incident on the front page. Just earlier this month a large number of lawyers gathered outside PIC to protest against some "mocking video". The protest turned violent as the lawyers initially closed off entry and exit points to the hospital. The protesters also damaged equipment inside and broke windows of the hospital as well as cars parked outside. They smashed doors of emergency theatres and staff had to run out to save themselves. Patients, some in ambulances, were unable to reach the hospital while those receiving treatment were left unattended due to the chaos. Three patients including an elderly woman died after doctors failed to provide them timely treatment and remained engaged in averting the assault. Only after hours of continued violence, police managed to arrest some of the lawyers and unblocked the road. Punjab government had to summon extra troops of Rangers personnel to maintain law and order. These and other similar happenings that involved violent lawyers have laid to rest any hopes expressed by different authors for democracy coming out of movements initiated by lawyers or the judiciary at large. The very latest example is the latest judgment of the SC in the high treason case against Gen Musharraf. Para 66 is most revealing about the mindset of the Honourable Judges who wrote the judgment, to quote, “We direct the Law Enforcement Agencies to strive their level best to apprehend the fugitive/convict and to ensure that the punishment is inflicted as per law and if found dead, his corpse be dragged to the D-Chowk, Islamabad, Pakistan and be hanged for 03 days”. This abomination is also blatantly un-Islamic, can anyone muslim condone the desecration of a dead body. Moreover Cromwell’s example was patently wrong, this dictator is the man who fought against and took the absolute powers away from the monarchy. Even when the royalty came back and desecrated his body in revenge, their powers were gone bar the shouting. He can thus be said to be the father of democracy in the UK and the role model for parliamentary form of democracy, despite his dismissing the “Rump Parliament” in 1983 with his “in the name of God, go” speech aside, all over the world.
Does Cromwell’s speech remind anyone of any Parliamentarians, to quote, “It is high time for me to put an end to your sitting in this place, which you have dishonored by your contempt of all virtue, and defiled by your practice of every vice. Ye are a factious crew, and enemies to all good government. Ye are a pack of mercenary wretches, and would like Esau sell your country for a mess of pottage, and like Judas betray your God for a few pieces of money. Is there a single virtue now remaining amongst you? Is there one vice you do not possess? Ye have no more religion than my horse. Gold is your God. Which of you have not bartered your conscience for bribes? Is there a man amongst you that has the least care for the good of the Commonwealth? Ye sordid prostitutes have you not defiled this sacred place, and turned the Lord's temple into a den of thieves, by your immoral principles and wicked practices? Ye are grown intolerably odious to the whole nation. You were deputed here by the people to get grievances redressed, are yourselves become the greatest grievance. Your country therefore calls upon me to cleanse this Augean stable, by putting a final period to your iniquitous proceedings in this House; and which by God's help, and the strength he has given me, I am now come to do. I command ye therefore, upon the peril of your lives, to depart immediately out of this place. Go, get you out! Make haste! Ye venal slaves be gone! So! Take away that shining bauble there, and lock up the doors. In the name of God, go! The violence of the lawyers that has been pent up inside then has finally reached the portals of the supreme judiciary. This obnoxious Musharraf verdict is amply proof for an emotional and violent involvement of the SC. The violence in Lahore’s Heart hospital speaks volumes about the state of our judiciary and at the end of the day, about the state of justice in our country. But justice lies at the basis of any state and society that wants to survive. That is why justice is at the centre of Islam and was a central concern of the Prophet of Islam. Injustice will breed more violence and harm our country and society. This should have been known to the judges of the highest court of Pakistan, but given state that our legal system is in it has been disregarded. This injustice will have to be corrected before it breeds more violence (Ikram Sehgal is a defence and security analyst and Dr Bettina Robotka is formerly of Department of South Asian Studies, Humboldt University, Berlin).