“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 judgment 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 needs be put in their proper context to be understood rightly.
This is more so with Supreme Court’s judgment 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 judgment unusually extraordinary are the reservations, apprehensions and misunderstandings being thrown out from all the quarters concerned including those who support it. Hence, it’s of utmost importance to be able to see this judgment in its proper context so that its implications be figured out.
There are three temporal contexts the judgment 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 judgment was announced re the Chief Justice’s constitutional petition in the Supreme Court of Pakistan; and, iii) what is transpiring now after the judgment 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. Nor any such evidence came to the fore.
It was further objected that while traveling to address the bar associations to various cities he led huge processions. It was the first opportunity when he along with his lawyers traveled to Peshawar to address the High Court Bar Association there that they learnt the lesson. Yeah, the most “valid” objection on his traveling to Peshawar by road may be why he didn’t fly to Peshawar! But let there be benefit of 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 organized 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 traveled 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 too 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 honorable 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 our politicians never spoke of it and took to it?
The historic travel of the Chief Justice from Islamabad to Lahore was an eye-opener. It portended a pre-emptive strike from the government and its allies which shaped the things on May 12 in Karachi. The Karachi carnage was the decisive point of the battle that was being fought outside the court room 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 counsels 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 amount 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 honorable court. Some of the Chief Justice’s counsels 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 unfavorable judgment; 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 to 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 the questions on the nature, character and objectives of this movement. When asked would they accept the Court verdict, the counsels of the Chief Justice used to reply they won’t if it favored the government. They were further asked didn’t they trust the Court. They said they did, but they won’t accept Justice Munir’s like judgment. 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.
[This article was completed on August 11, 2207.]