Sunday, August 12, 2007

Ideals and expediency - Muneer A. Malik on Mussaraff vs Chiefe Justice

June 27, 2007


by Muneer A. Malik
IN my first article about the current lawyers'
movement, I had countered skeptics convinced of
its ultimate futility by reminding them that the
longest journey starts with a single step.
Now, as the movement grows from strength to
strength; as hundreds of thousands of people turn
up to show their support from Abbottabad to
Lahore, Peshawar to Chakwal; as an increasingly
desperate regime seeks refuge behind the corps
commanders, I have still not been approached by
any intermediary seeking to broker a compromise.
To save everyone's time, let me make the bar's
position absolutely clear. The demands of the bar
are non-negotiable and brook no compromise. This
is because of the inherent nature of this
To begin with, what are the objectives of our
movement? Firstly, it is about changing the
mindsets of our people. Throughout our history,
the masses have viewed the bureaucracy, the
military and the judiciary as part of the same
ruling elite, cooperating with each other to
subjugate the people. The minds of the masses
have been inoculated against the concept of true
justice. We were taught obedience at the cost of
our liberty and independence.
This mindset is a hangover from our colonial
past. These institutions were created by the
British as a means of controlling the civilian
populace. They were manned by Englishmen from the
same background taught to venerate the same ideal
- the preservation of the Raj.
Judges and ICS officers were not meant to empower
the masses and improve their lot, they were there
to keep the peace so the British could continue,
unhindered, with their commercial exploitation
and empire building. Likewise, the army's primary
role was internal not external. Their job was to
quell local rebellions that could threaten
British dominance. Alas! This role remains the same.
Decentralisation and separation of powers were
never on the agenda. When a few thousand
Englishmen set out to establish total control
over a land of three hundred million people, any
localised pockets of power could have proved
fatal. A division of powers between the different
institutions of state would be suicidal.
Our fight is for a separation of powers, for
constitutionalism, for the principle that all men
are equal before the law and for the ideal that
the pen is mightier than the sword.
Thus the DC ruled his district (with the willing
cooperation of the local elite, the feudal lords)
with a free hand and without any constraints. His
basic job was to keep the people quiet and
subservient to imperial dictates.
If populist leaders, like Muhammad Ali Jinnah,
B.G. Tilak or M.K. Gandhi, became too noisy, he
knew he could always call upon his willing
brothers in the judiciary to convict them for
sedition or banish them from the practice of law.
If matters went further, the likes of General
Dyer would bail him out by shooting a few hundred
natives for the restoration of 'peace'.
The supposed impartiality and independence of
judges in the colonial era is a complete myth. Of
course, they were neutral when deciding land
disputes between two natives. But when the
interests of the Raj were at stake, when the
interests of the people collided with those of
their colonial masters, they never let their
government down.Unfortunately, our nation's
independence and the departure of the British did
not bring their system of governance to an end.
Rather, a 'coloured' ruling establishment quietly
stepped into the shoes of their departing masters
and adopted their practices and beliefs. After
all, it was more civilised to be an Englishman,
notwithstanding that you were not admitted to
their clubs unless you served as a waiter.
As a result, concepts such as the rule of law or
the independence of the judiciary never took root
in the minds of our people. We were never
convinced that the judiciary's true function was
to guard the rights of the people and to protect
the masses from oppression.
The first aim of our struggle is to change those
beliefs. We seek to convince the masses that the
courts are not there only to adjudicate property
disputes between rich landowners or the competing
commercial interests of multinational
corporations, but that a truly independent
judiciary will allow the common man to realise
his fundamental rights. That judges with security
of tenure will be fearless enough to administer
true justice. That such judges will protect them
from the abusive exercise of power by the wadera,
the 'seth' or the SHO.
We seek to inculcate the belief that laws are not
meant to be jealously preserved in
jurisprudential tomes but to be applied, by
activist judges, for the protection of the common
man, and that the rule of law is an idea worth
fighting for.
To do so, we have to change the mindset of our
judges about their true duties and functions.
This is our second aim. For too long they have
functioned as if they were part of our
military-bureaucracy, and now the plundering
capitalist (the attempted sale of the Steel Mills
being a case in point), establishment. They need
to realise that they are no longer part of a
foreign force seeking to forcibly impose its will
upon the people. They need to end their
alienation from the masses and align themselves
with the wishes of the people.
Why is it that Justice M.R. Kayani considered it
acceptable to contest elections and become
president of the Civil Servants of Pakistan
Association while he was sitting on the bench of
the high court, particularly when the major
portion of his duties involved the judicial
review of the wrongful acts of civil servants?
It was not because of any particular lack of
integrity on his part. Rather, he was known as
an outspoken and honest judge. It is simply the
pernicious elitism that pervades our entire
judiciary that leads them to ally themselves with
the ruling classes rather than with the masses.
Our judges can easily identify with the causes of
senior government officials but not those of a
'kissan'. That is exactly why I call for a
Supreme Court of the People of Pakistan.
Why is it that high court and Supreme Court
judges consider it perfectly acceptable to lunch
in elitist clubs and exchange views with
industrialists, government ministers and
advisers, bureaucrats et al, but shy away from
sharing a cup of tea with the labourer or
political worker at a trade union function? Does
this not distort their perception about the needs
and aspirations of the people of Pakistan?
The visit of the governor of Sindh - fresh from
his debriefing in London - to the Sindh High
Court is illuminating. Eyebrows were raised when
seven honourable judges examining the May 12
tragedy refused to meet him and he was told that
there could be no discussion on that issue. Why
should there have been even an iota of surprise?
The government of Sindh, and the party to which
the governor belongs, had been directly
implicated in the tragedy of May 12. I say that
at the risk of my life and that of my children.

Would there have been any astonishment if any
judge refused to entertain a common litigant who
wanted to have a cup of tea in the
judge's chamber and discuss the facts of his
case? The commendable behaviour of the Sindh High
Court judges was newsworthy because too often in
the past our judges have fallen short of this
standard of rectitude when it comes to the power elite.
The idea that judges interpret the law in
splendid isolation strictly in accordance with
recognised and time-tested legal doctrines is
entirely fallacious. Our Supreme Court has
repeatedly pointed out that the Constitution is
an organic document and needs continuous
reinterpretation in light of changing times and
needs. So who will inform them about the changing
needs of the hour? Must it be the generals, the
industrialists and the bureaucrats?
Take the example of the reviled doctrine of
necessity. Blatantly illegal and unconstitutional
acts were repeatedly justified by our
Supreme Court on the basis that they were
necessary for survival of the nation. And who was
the spokesman for the nation? The generals.

Why can't the needs of the nation be determined
by directly listening to the voice of the nation?
Why must the doctrine of necessity always be
employed in favour of the military-bureaucracy
establishment? Can it never be used in the other
direction - to force a general (even if he has
invented a specious legal cover for his actions)
to respect the legitimate desires and aspirations
of the people?
I recall discussing this issue with the late
Justice Dorab Patel. A splendidly honest man, he
felt compelled, nevertheless, to defend his
brethren. He justified previous judicial
decisions based on expediency on the grounds that
they were made by a few old men left alone in
face of the entire army's might. This movement
seeks to reassure our judges that they are not
alone. If they choose to do the right thing, the
whole legal community and the entire nation will
turn out in their support.
The learned Chief Justice is no charismatic
politician. His speeches, on purely legal issues,
do not enthral the nation. But when hundreds of
thousands of people stand all day in Lahore's
scorching heat and brave all night Faisalabad's
thunderstorms waiting to catch a glimpse of him,
they do so to salute the courage of the man. They
do so to show their support for a judge who dares
to say 'no'.
Our aim is to instil that courage in every judge
throughout the land. Our aim is to illuminate a
path that leads beyond the Maulvi Tamizuddin,
Dosso, Nusrat Bhutto and Zafar Ali Shah cases.
Our third objective is to restore civilian
supremacy in Pakistan. We are no longer prepared
to live under the barrel of the gun. Those guns
and their wielders must return to their rightful
positions; facing outwards at the frontiers of
our land. The people will rule themselves.
Of course, our elected politicians will make
mistakes, both honest and dishonest, and there
will be misrule. But the court of
accountability must be 170 million Pakistanis and
not nine corps commanders. Elected governments
must complete their tenure and face
up to their failures at the time of polling
instead of being handed a convenient excuse by
their forced ouster at the hands of the military.
Fourthly, our aim is to strengthen all the
institutions of our state; the executive, the
legislature, the judiciary as well as the media.
Only by strengthening these pillars and strictly
enforcing the limits on their separate powers in
accordance with the Constitution can we protect
ourselves from tyranny and secure the rule of
law. Only then can we rid ourselves of the
inequities of the past.
To achieve these goals, we welcome the support of
every segment of civil society; the media as well
as labour unions, NGOs as well as political
parties. But our demands are non-negotiable. We
will not sacrifice our principles at the altar of
expediency. Any dialogue with the establishment
can only begin after they take steps that
concretely display their commitment to these principles.
Our history is replete with tragic compromises.
We don't need to go too far. The Zafar Ali Shah
case was a compromise by the judiciary.
Musharraf's military takeover was legitimised in
exchange for a promise that elections would be
held and a civilian government installed within
three years.
Five years have passed since those elections, but
all power still rests with Musharraf and his
corps commanders rather than with the prime
minister and his cabinet. On March 9, 2007, while
cabinet ministers hunkered under their beds, the
ISI, MI and IB chiefs wreaked havoc.
The Seventeenth Amendment was a compromise by the
politicians. Musharraf was allowed to continue
as president despite his uniform in exchange for,
essentially, a verbal promise that he would shed
it in a year. Characteristically, he reneged and
four years later he was donning the same uniform
when he attempted to fire the Chief Justice. No
amount of apology, no matter how sincere, will
bring back lost times and opportunities.
For once in our history, people from every
segment of civil society, judges and politicians
alike, need to stand up for ideals and eschew the
culture of deal-making. The struggle is not for
tawdry offices and superficial power; it is about
principles. If we can maintain our united
commitment to these principles, we shall triumph
and overwhelm all opposition. But if we fail to
learn from history, we will be condemned to relive it.
The writer is president of the Supreme Court Bar Association.

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Arise Awake Stop not till the goal is reached. - Swami Vivekananda Swami ji is my inspiration, not as a monk but as a social reformer and for his universal-ism.