Tuesday, November 15, 2016

The American contradiction

Peace, commerce and honest friendship with all nations; entangling alliances with none
-Thomas Jefferson, 1743-1826.

American people create abundant wealth. So, they are prosperous and happy. It is only because they are economically freer than many nations on earth. In consequence, that makes them politically freer. What makes all that possible is their declaration of independence, constitution, bill of rights, and their independent courts, which promptly ensure the continuance of rule of law, which in turn help a free media to exist, and it is this combination that guarantees personal freedoms to American people: to do whatever they like to do, of course, under the state and federal laws. Despite their state’s encroachments on their freedoms especially after 9/11, they are free to pursue economic, political, social, intellectual, philosophical, moral, spiritual, aesthetic enterprises, or whatever they like to seek.

In sum, it is their love for personal freedom that characterises and distinguishes them from other people. In that they are unique. That should make them enviable to all other nations that lack this ultra-care for personal freedom. But this does not form the gist of America. It is something else.

Let me narrate a personal experience to elaborate on that point.

In Washington D.C. where the fate of smaller nations is written, what fascinated me most was the National Archives. It displays some original pages and initial facsimiles of the American Charters of Freedom, i.e. Declaration of Independence, US Constitution, and Bill of Rights. It also displays an original copy of the Magna Carta (1297): the document which foretold the spirit of the Charters of Freedoms.

All these documents have been placed in a building of highest grandeur in a way so that natural light is available therein. In order to protect (or to prolong) the life of these documents, artificial light has been avoided. Flash photography is not allowed either. That is fantastic! But that is American also! These documents are worth a museum, and they have rightly been archived. I do not know if these documents are available in another building located a few miles away from the National Archives, i.e. White House. I do not know if George W. Bush, Jr. has ever read them. I do not know, either, if any congressman or senator has ever gone through them and understood them well. What I do know is that American government and especially its foreign policy has entirely drifted from what those documents signify and what they stand for.

Also, in the same building are displayed many a quote of the American founding fathers and other notables which belie what America means today to the world outside America. Not only in the National Archives, but in other places such as Jefferson Memorial all the quotes expose the reality of the present-day America. Here it needs not to go into the details of those quotes, since the principle of personal freedom is sufficient to make the point. Practically, this principle manifests itself in a negative assertion, rather than in a positive one as it appears to be. It may be worded thus: ‘You are free to do whatever you like until and unless you do not encroach on my freedoms.’ That is really an achievement of American society and government! I am all praise for that.

However, it is not the whole story. You talk to American people what is going on in Iraq, Afghanistan, Pakistan; in the first instance, they are just oblivious of it. Or at best, they will offer a personal apology: ‘Oh that is what I can do! I am sorry for that!’ That does not help much to dispel the impression that more or less American society is like an island in a world deeply involved in many such conflicts for which the responsibility rests on the American government. My argument focuses on that blatant contradiction.

No doubt, we can retreat to a hermitage, and live there in peace we wish to be in. But we can never be in such a retreat after harming others. Maybe we are forgiven once or twice. In case we continue harming other people, and presume that we will be safe in our retreat, that’s our forgetfulness, to use a euphemism. We need to know we are going to be chased, and paid in the same coin. In other words, if we think that rule A is only valid for us, and for other people there is another rule B, we are living in a contradiction. We know well we cannot live long in a contradiction. Someone is going to explode that contradiction. We are in the midst of that explosion.

So, the sort of a principled foreign policy of American government towards other people that “you are not free to do whatever you like whether you encroach on my freedoms or not’ contradicts its sort of a principled internal policy towards its own people that ‘you are free to do whatever you like until and unless you do not encroach on my freedoms.’ The point of argument rests on the understanding that just like American people, every people on earth need a constitution that ensures them their inalienable personal freedoms, independent courts that take care of rule of law for them, and a constitutional democratic government to represent them. Sure, it is no privilege of American people only. Naturally, it is no privilege of American government to deprive other people of these necessities. Or for that matter, no nation or people can be allowed this privilege such as former Soviet Union tried its hand on against which American government fought both the cold and hot wars so passionately to secure freedom and human rights for the people in distress.

In this regard, no excuses, pretexts or expediencies can make for any allowance. It needs to be realised that 9/11 belongs to a class of effects; it’s no part of the list of causes. Moreover, whatever the war against terror requires never means abandoning the principles. How come that Pakistani people do not need a constitutional government, independent judiciary, rule of law only because their government has made their country a frontline ally of US government in the war against terror. Only because a dictator, who has trashed the Constitution, sent all the superior court judges home to keep himself in power, and made the country a fiefdom of the elites of Pakistan, pleases the US government, Pakistani people should have nothing of the sorts.

This is just outrageous: kill one people to save others and for nothing. The saner Americans must realise that they are not going to win this war against terrorism. Beyond envy, religious fanaticism, historical animosity against US, there is something very real underneath it. It is that blatant contradiction. It needs to be addressed urgently, and until and unless it is addressed to with an open mind and heart, nothing is going to make any difference.

It is for both American people and government to realise that though American people create abundant wealth, but of course they are not going to create this wealth continuously if this is going to be spent on such useless wars. It may go on for another ten, twenty or at most fifty years that such wealth is available to American government, but in the end, as has been happening in history, such wars will drain all the resources and energies of the American people. This is how empires meet their fall. Wars and such whimsical wars without addressing the core issues resemble death wish.

That’s the issue. In order to survive both as an epitome and an emblem of personal freedom for all the people on this earth, American people need to rejuvenate their government with the fountainhead of Charters of Freedom. They need to go back to the basics. They need to rediscover those principles contained in the documents which have been archived. They need a refresher in their founding fathers’ teachings. They need to let there be equally valid principles for all the people on this earth. They need to make their government to win hearts of the people, not the heads of their government. That’s the only way to save America and not let it meet the tragic end of an empire.

Note: This article was completed in July 2008.

Monday, November 7, 2016

The perils of judicial populism

Judges rule on the basis of law, not public opinion, and they should be totally indifferent to the pressures of the times.
- Warren E. Burger (1907-1995), Chief Justice, US Supreme Court.

The best thing that explains the Supreme Court's (SC’s) July 20 judgment is: it is never too late to mend. As is being claimed, the judgment is historic, it is daring, it is a people's verdict, and a turning point in Pakistan's history. Of course, it is all these or maybe more, but things are meaningful only in a context. Without context, they lose their import. This is more so with the SC's judgment that unanimously reinstated Mr. Justice Iftikhar Muhammad Chaudhry, Chief Justice (CJ) of Pakistan, setting aside the presidential reference against him.

Besides its own significance, what makes 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 is of utmost importance to be able to see this judgment in its proper context so that its implications may be figured out.

There are three temporal contexts the judgment may be placed in: i) What transpired before the reference was filed against the CJ; ii) What transpired from the moment the CJ 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 regarding the CJ’s constitutional petition in the SC 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 is said that the lawyers’ movement for the restoration of the CJ was inspired by political motivations and that the lawyers were committing to politics. The objection was debated at every forum. But the whole debate missed the point that neither the CJ nor the lawyers were motivated by power politics. The lawyers are not a political party. They are a heterogeneous lot composed of diametrically opposed political and religious groups and parties. The CJ was (and fortunately is) a government official and was fighting his case first in the Supreme Judicial Council and then in the SC of which he was the chief judge. He could not be shown having any such intentions. Nor has any such evidence come to the fore.

It was further objected that while traveling to address the Bar Associations in various cities, he led huge processions. The most 'valid' objection on his traveling to Peshawar by road may be why he did not fly to Peshawar? It was the first travel of the CJ after being rendered ‘ineffective’. He and his lawyers never knew that huge crowds were awaiting the CJ at every milestone.

The objection was that holding rallies was the privilege of political parties’ leaders only, and that the processions were organised by the CJ and his lawyers to build up a certain campaign. Obviously, it was not like that. The people came on their own to these rallies to show their appreciation of the CJ's 'no' to a dictator. After the Peshawar travel and address, the CJ’s lawyers began the practice of announcing the CJ's schedule about going to a city to address the Bar Associations beforehand. Did the CJ or lawyers make any call to the people to come to welcome the CJ? Never!

See what the government was doing to establish its ‘writ’, preparing the affidavits and more references against the CJ in a most bizarre manner. Last but not least, it was trying to influence the honourable judges hearing the CJ’s petition. But the question is whether the CJ 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?

The historic travel of the CJ from Islamabad to Lahore was an eye-opener. The government and its allies shaped things on May 12 in Karachi. The Karachi carnage was the decisive point of the battle that was being fought outside the courtroom, after which apparently the government started retreating from this front. 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 CJ’s travels and addresses.

Perhaps the government wanted the CJ to sit in his house and see how the court proceeds and decides about his case. From the government’s point of view, the legal community should not have come to the CJ’s aid or to his rescue. All this read together amounts 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 CJ’s processions, rallies and addresses were aimed at influencing the honourable court. Some of the CJ’s counsel also made the mistake of uttering some public statements which were unbecoming of them. The statements earned a bad impression for 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's verdict, the counsel of the CJ used to reply that they would not if it favoured the government. They were further asked, didn’t they trust the SC? They said they did, but they would not accept a judgment like Justice Munir’s. How can one trust a thing and at the same time mistrust it? The lawyers had no clear answer to this objection. They are still without one.
If the CJ's case was before the country's highest court of law, what was the need for the lawyers, civil society organisations, political activists and ordinary people to come out on the streets? This is the trickiest question that must be answered to understand the July 20 judgment. Also, this brings us to the first context: What transpired before the reference was filed against the CJ?

There have been attempts at finding answers to the question of what transpired before the reference was filed against the Chief Justice (CJ). The focus is the judiciary’s past character. The boldest statement in this regard termed the judiciary as the B team of the Pakistan army and appealed to it to act instead as an A team. The first step towards this transformation of the judiciary was indicated by the reinstatement of the CJ. It was clarified that since in the past the judiciary had been legitimizing military takeovers, it was likely that it did come under pressure of the present military regime to make an influenced verdict. There is a view that says that had the lawyers not come out to rescue the CJ, he may have still been in a state of house arrest. It was the pressure of this movement that got him released.

When his case was before the full bench, weren’t the lawyers then supposed not to be around him? Wasn’t it up to the apex court to see to his petition? Why were the lawyers, civil society and political activists there then? It was none of their business to be around the CJ. Another such attempt presently in vogue takes strength from late Justice Dorab Patel. He is being quoted as justifying his role in the bench that validated the military takeover of General Ziaul Haq on the plea that how could a few judges stop the coup leader when a nation of 160 million remained silent?

The participation of civil society organisations and political and religious parties worked as support to the judges in stopping a coup leader. Does this prove that it was this movement that caused the judgment of July 20? Of course it did, but in the eyes of only those who hold such a view. It is the view of those who are Dorabians and believe that without such a movement no such judgment could have come from the full bench of the apex court. It means that the custodian of the Constitution, the judiciary, needs the people’s support to protect, defend and interpret the Constitution. Without this support, the July 20 verdict could not be such a historic one. If it is so, and as it seems it is so, it is most unfortunate for our country and the constitution as well.

It is here that we enter the third context. What is transpiring now after the judgment and what will transpire in future regarding the judgment? The ethos created by the judgment may appropriately be termed as judicial populism. Under the circumstances, what is more depressing is that we have no inkling of how dangerous and fatal this judicial populism may prove to be. This view is corroborated by the sheer absence of the view that judgments are made in accordance with the provisions of the Constitution. Whoever talks about the July 20 judgment, links it with the lawyers’ movement.

They admit that judges are human beings and are influenced by the circumstances prevailing outside the court. But in the same breath, they declare that they judge according to the relevant laws. They are, in fact, caught in a vicious circle. They have no way out. Why? Because they do not want to acknowledge that their movement was a spontaneous outrage against an outrageous act of a dictator that was deliberately transformed into an organised movement. The focus of their movement was the restoration of the CJ and nothing else. It is evident that it has exhausted itself the moment its goal was achieved.

No doubt, their movement gave rise to slogans of utmost importance such as an independent judiciary, rule of law, supremacy of the constitution, and civilian democratic rule. Have these goals been achieved? Or will they be achieved in the near future? The first step in this direction has already been taken with the restoration of the CJ and undermining of the anti-constitution forces and strengthening of the judiciary. Some of the signs, such as the intimidation of lawyers who disagreed with the mainstream lawyers and advocated the government’s case, now seem to have started maturing. Two recent incidents of intimidation — one of a known journalist Khalil Malik, and the other of a lawyer Naeem Bukhari by the legal fraternity — are symptomatic. This indicates that the lawyers’ movement is deliberately being transformed into judicial populism.

It may be asked why were the lawyers afraid of losing the fight? Why didn’t they trust the court? Why did they resort to agitation? Why even now are they and the representatives of civil society and the intelligentsia justifying the popular support to the court to deliver a popular judgment? The truth in fact is that they did not trust the court. Why so? The history of the court’s judgments in such matters has been disappointing altogether. It seemed as if there was no constitution. The courts were there to cook whatever was needed to be offered to the uniformed guests. With such a background, how can one, and if that one happens to be a lawyer who knows well the track record of the courts, trust the courts?

But that’s not all. The story needs to be retold. The man who inhabits the land of Pakistan has no moral values. He has no integrity of character. He is a man of flesh only. He is not a man of principle. He has no regard for the means. His ends justify his means. He has no conscience. In sum, the quality of man in Pakistan is at its lowest. How can then judges go beyond this state of affairs? It is admitted even today by everyone. Judges, whether retired or not, argue like this. After all judges are human beings. This justifies every act of theirs.

People cannot be blamed for whatever has happened. What is required of a judge is integrity of character. Judicial populism, in many people’s view, destroys whatever little is left of the rule of law in Pakistan. It will destroy supremacy of the Constitution, independence of the judiciary, and turn the society of Pakistan into adventurous warring groups of gangsters. My Lords, so many people like me who believe in the rule of law, need to be convinced that you did not need any popular movement to issue the July 20 verdict.

Note: This article was completed in August 2007.

The perils of judicial populism

Judges rule on the basis of law, not public opinion, and they should be totally indifferent to the pressures of the times.
- Warren E. Burger (1907-1995), Chief Justice, US Supreme Court.

The best thing that explains the Supreme Court's (SC’s) July 20 judgment is: it is never too late to mend. As is being claimed, the judgment is historic, it is daring, it is a people's verdict, and a turning point in Pakistan's history. Of course, it is all these or maybe more, but things are meaningful only in a context. Without context, they lose their import. This is more so with the SC's judgment that unanimously reinstated Mr. Justice Iftikhar Muhammad Chaudhry, Chief Justice (CJ) of Pakistan, setting aside the presidential reference against him.

Besides its own significance, what makes 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 is of utmost importance to be able to see this judgment in its proper context so that its implications may be figured out.

There are three temporal contexts the judgment may be placed in: i) What transpired before the reference was filed against the CJ; ii) What transpired from the moment the CJ 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 regarding the CJ’s constitutional petition in the SC 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 is said that the lawyers’ movement for the restoration of the CJ was inspired by political motivations and that the lawyers were committing to politics. The objection was debated at every forum. But the whole debate missed the point that neither the CJ nor the lawyers were motivated by power politics. The lawyers are not a political party. They are a heterogeneous lot composed of diametrically opposed political and religious groups and parties. The CJ was (and fortunately is) a government official and was fighting his case first in the Supreme Judicial Council and then in the SC of which he was the chief judge. He could not be shown having any such intentions. Nor has any such evidence come to the fore.

It was further objected that while traveling to address the Bar Associations in various cities, he led huge processions. The most 'valid' objection on his traveling to Peshawar by road may be why he did not fly to Peshawar? It was the first travel of the CJ after being rendered ‘ineffective’. He and his lawyers never knew that huge crowds were awaiting the CJ at every milestone.

The objection was that holding rallies was the privilege of political parties’ leaders only, and that the processions were organised by the CJ and his lawyers to build up a certain campaign. Obviously, it was not like that. The people came on their own to these rallies to show their appreciation of the CJ's 'no' to a dictator. After the Peshawar travel and address, the CJ’s lawyers began the practice of announcing the CJ's schedule about going to a city to address the Bar Associations beforehand. Did the CJ or lawyers make any call to the people to come to welcome the CJ? Never!

See what the government was doing to establish its ‘writ’, preparing the affidavits and more references against the CJ in a most bizarre manner. Last but not least, it was trying to influence the honourable judges hearing the CJ’s petition. But the question is whether the CJ 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?

The historic travel of the CJ from Islamabad to Lahore was an eye-opener. The government and its allies shaped things on May 12 in Karachi. The Karachi carnage was the decisive point of the battle that was being fought outside the courtroom, after which apparently the government started retreating from this front. 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 CJ’s travels and addresses.

Perhaps the government wanted the CJ to sit in his house and see how the court proceeds and decides about his case. From the government’s point of view, the legal community should not have come to the CJ’s aid or to his rescue. All this read together amounts 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 CJ’s processions, rallies and addresses were aimed at influencing the honourable court. Some of the CJ’s counsel also made the mistake of uttering some public statements which were unbecoming of them. The statements earned a bad impression for 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's verdict, the counsel of the CJ used to reply that they would not if it favoured the government. They were further asked, didn’t they trust the SC? They said they did, but they would not accept a judgment like Justice Munir’s. How can one trust a thing and at the same time mistrust it? The lawyers had no clear answer to this objection. They are still without one.

If the CJ's case was before the country's highest court of law, what was the need for the lawyers, civil society organisations, political activists and ordinary people to come out on the streets? This is the trickiest question that must be answered to understand the July 20 judgment. Also, this brings us to the first context: What transpired before the reference was filed against the CJ?



There have been attempts at finding answers to the question of what transpired before the reference was filed against the Chief Justice (CJ). The focus is the judiciary’s past character. The boldest statement in this regard termed the judiciary as the B team of the Pakistan army and appealed to it to act instead as an A team. The first step towards this transformation of the judiciary was indicated by the reinstatement of the CJ. It was clarified that since in the past the judiciary had been legitimizing military takeovers, it was likely that it did come under pressure of the present military regime to make an influenced verdict. There is a view that says that had the lawyers not come out to rescue the CJ, he may have still been in a state of house arrest. It was the pressure of this movement that got him released.

When his case was before the full bench, weren’t the lawyers then supposed not to be around him? Wasn’t it up to the apex court to see to his petition? Why were the lawyers, civil society and political activists there then? It was none of their business to be around the CJ. Another such attempt presently in vogue takes strength from late Justice Dorab Patel. He is being quoted as justifying his role in the bench that validated the military takeover of General Ziaul Haq on the plea that how could a few judges stop the coup leader when a nation of 160 million remained silent?

The participation of civil society organisations and political and religious parties worked as support to the judges in stopping a coup leader. Does this prove that it was this movement that caused the judgment of July 20? Of course it did, but in the eyes of only those who hold such a view. It is the view of those who are Dorabians and believe that without such a movement no such judgment could have come from the full bench of the apex court. It means that the custodian of the Constitution, the judiciary, needs the people’s support to protect, defend and interpret the Constitution. Without this support, the July 20 verdict could not be such a historic one. If it is so, and as it seems it is so, it is most unfortunate for our country and the constitution as well.

It is here that we enter the third context. What is transpiring now after the judgment and what will transpire in future regarding the judgment? The ethos created by the judgment may appropriately be termed as judicial populism. Under the circumstances, what is more depressing is that we have no inkling of how dangerous and fatal this judicial populism may prove to be. This view is corroborated by the sheer absence of the view that judgments are made in accordance with the provisions of the Constitution. Whoever talks about the July 20 judgment, links it with the lawyers’ movement.

They admit that judges are human beings and are influenced by the circumstances prevailing outside the court. But in the same breath, they declare that they judge according to the relevant laws. They are, in fact, caught in a vicious circle. They have no way out. Why? Because they do not want to acknowledge that their movement was a spontaneous outrage against an outrageous act of a dictator that was deliberately transformed into an organised movement. The focus of their movement was the restoration of the CJ and nothing else. It is evident that it has exhausted itself the moment its goal was achieved.

No doubt, their movement gave rise to slogans of utmost importance such as an independent judiciary, rule of law, supremacy of the constitution, and civilian democratic rule. Have these goals been achieved? Or will they be achieved in the near future? The first step in this direction has already been taken with the restoration of the CJ and undermining of the anti-constitution forces and strengthening of the judiciary. Some of the signs, such as the intimidation of lawyers who disagreed with the mainstream lawyers and advocated the government’s case, now seem to have started maturing. Two recent incidents of intimidation — one of a known journalist Khalil Malik, and the other of a lawyer Naeem Bukhari by the legal fraternity — are symptomatic. This indicates that the lawyers’ movement is deliberately being transformed into judicial populism.

It may be asked why were the lawyers afraid of losing the fight? Why didn’t they trust the court? Why did they resort to agitation? Why even now are they and the representatives of civil society and the intelligentsia justifying the popular support to the court to deliver a popular judgment? The truth in fact is that they did not trust the court. Why so? The history of the court’s judgments in such matters has been disappointing altogether. It seemed as if there was no constitution. The courts were there to cook whatever was needed to be offered to the uniformed guests. With such a background, how can one, and if that one happens to be a lawyer who knows well the track record of the courts, trust the courts?

But that’s not all. The story needs to be retold. The man who inhabits the land of Pakistan has no moral values. He has no integrity of character. He is a man of flesh only. He is not a man of principle. He has no regard for the means. His ends justify his means. He has no conscience. In sum, the quality of man in Pakistan is at its lowest. How can then judges go beyond this state of affairs? It is admitted even today by everyone. Judges, whether retired or not, argue like this. After all judges are human beings. This justifies every act of theirs.

People cannot be blamed for whatever has happened. What is required of a judge is integrity of character. Judicial populism, in many people’s view, destroys whatever little is left of the rule of law in Pakistan. It will destroy supremacy of the Constitution, independence of the judiciary, and turn the society of Pakistan into adventurous warring groups of gangsters. My Lords, so many people like me who believe in the rule of law, need to be convinced that you did not need any popular movement to issue the July 20 verdict.

Note: This article was completed in August 2007.