Ik Mulk Bana Be Dar Dekha

Please note: This post has been shifted to the Urdu Blog - Civil Pakistan. To see it, click the link below:

Ik Mulk Bana Be Dar Dekha

Google and Pakistan's Independence Day - August 14, 2013

Today, on Pakistan's independence day, www.google.com - how beautifully used the image of Urial and  its horns! Fantastic!

See the last year's Google.com presentation!

Karachi Ka Akhlaaqi Muqaddar

Please note: This post has been shifted to the Urdu Blog - Civil Pakistan. To see it, click the link below:

Karachi Ka Akhlaaqi Muqaddar

The perils of judicial populism - II

“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]

If the Chief Justice’s case was before the country’s highest court of law, what was the need for the lawyers, civil society organizations, political activists and ordinary people to come out to 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 Chief Justice.

There were / are attempts at finding answers to the question. Their focus is the judiciary’s past character. The boldest statement in this regard termed judiciary as B team of Pakistan Army; and appealed to it to act instead as A team of people. The first step towards this transformation of the judiciary was indicated as the reinstatement of the Chief Justice. It was clarified that since in the past judiciary had been legitimizing the military takeovers and providing them with constitutional covers, it was likely that it did slip under the pressure of the present military regime to make an influenced verdict; and that was why a ‘thrust’ from outside the court was needed to give it support. They say hadn’t lawyers come out to the rescue of the Chief Justice; he must have still been in a state of house-arrest cut off from the outside world. It was the pressure of this movement transmitted very forcefully by the media especially electronic media that got him released; otherwise he would have been made ineffective literally.

That’s conceded, but when he was out and home in his own Supreme Court with his case before the full bench, weren’t the lawyers then supposed not to be around him, taking him in rallies to various cities to address the bar associations. Wasn’t now it up to the apex court to see to his petition? Why the lawyers, civil society and political activists were there then? It was no business of them to be around the Chief Justice and the Court then.

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 Zia-ul-Haque on the plea that ‘how could a few judges stop the coup leader when a nation of 140 million remained silent.’ This unequivocally defends the present lawyers’ movement and the participation of civil society organizations, political and religious parties in it. It worked as support to the few judges in stopping a coup leader. Now Justice Dorab Patel should rest in greater peace that a nation of 169 million did not remain silent.

Does this prove that it was this movement that midwifed the birth of the judgment of July 20? Of course, it did, but in the eyes of only those who hold such a view. It is for those who are Dorabians and believe that without such a movement no such judgment could have issued forth from the full bench of the highest court of the country. Also, this requires that they should not believe in the Constitution which clearly dismisses such military takeovers and prescribes the strictest punishment for its violators. It means that the custodian of the Constitution, the judiciary, needs people’s support to protect, defend and interpret the Constitution in accordance with the spirit and provisions of 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 nature and meaning of the July 20 judgment as delineated and contextualized above justify the thinking that for all such cases of importance to be decided accordingly popular support will be needed. No popular support, no popular judgment. Or, if it could be worded like this: popular support ensures constitutional judgments. No popular support, no constitutional judgments. Thus, the ethos created by the judgment may appropriately be termed as Judicial Populism. Isn’t it that what Justice Dorab Patel talked about? Isn’t it that what the counsels of the Chief Justice spoke about in their speeches and interviews? Isn’t it that what came to be the target of the government and its proponents’ criticism that the sub judice matters are not contested outside the court?

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, be he a common man or a journalist or a political or judicial analyst or for that matter an expert on law or a retired judge, bonds the judgment together with the lawyers’ movement: that such a judgment was not possible without such a movement. Strangely, 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, 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 organized movement. The focus of their movement was the restoration of the Chief Justice, and nothing else. It’s 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: independent judiciary; rule of law; supremacy of the constitution; and civilian democratic rule. Have these goals been achieved? Or will they be achieved in near future? Very unlikely! However, the first step in this direction has already been taken with the restoration of the Chief Justice and undermining of the anti-constitution forces and strengthening of the judiciary.

But some of the signs, such as intimidation of lawyers differing from the mainstream lawyers and advocating the government’s case, which were already present during the heyday of the lawyers’ movement, now seem to have started maturing. Two recent incidents of coercing of a known journalist, Khalil Malik, and a popular lawyer, Naeem Bokhari, by the legal fraternity are symptomatic. What is most unfortunate is that there is no registering of FIRs or investigations whatsoever. This indicates that the lawyers’ movement is deliberately being transformed into a judicial populism.

Coming back to the contention, it may be asked why the lawyers were afraid of losing the fight. Why didn’t they trust the court? Why did they resort to agitation? Why did they take to the popular support? Why did they put an extraordinary pressure on the court? Why did they openly make statements not to accept any judgment going against the sentiments of the people? Moreover, even now why are they and the representatives of civil society and 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, and they were justified in their mistrust of the court. The history of court’s judgments in such matters has been disappointing altogether. It appeared there was no Constitution; stage a coup and take a judgment of your choice. 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 character of the persons sitting in the courts, can 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? Justice Dorab Patel admitted that. 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.

Justice Dorab taunted: If 140 (or 169) million people remain silent, how a handful of judges should stop the coup? Let me be a bit disobedient here: did 140 or 169 million people take oath of protecting the Constitution? No, lords, it were you who took the oath. So, it were you who defied their oath. It were you lords who did not protect the Constitution. It were you lords who lost their integrity. Not the people. You misled the people, and then blamed them.

My Lords, as is said, a judge does not need to be learned in the science of jurisprudence and the laws of the land; it is two lawyers, plaintiff’s and defendant’s, who teach him that; what is required of a judge is integrity of character. My Lords, did you prove that? Or is otherwise? My Lords, do you need 140 or 169 million people at your back to make judgments in accordance with the provisions and spirit of the Constitution? My Lords, do you know this begets judicial populism. This is begetting judicial populism. My Lords, do you know the perils of judicial populism. It will destroy 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, I believe you did not need any popular support; you did not need 169 million people at your back to protect the Constitution. My Lords, so many people like me who believe in the rule of law are eager to be made sure that you did not need any popular movement to issue the July 20 verdict. My Lords, you know that will change the context of your judgment altogether. That will put your judgment in its proper context.

[This article was completed on August 11, 2207. See the first part: The Perils of judicial populism - I]

The perils of judicial populism - I

“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.]

Kalum Nigaron Ki Kalum Chingariyan

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Kalum Nigaron Ki Kalum Chingariyan

Riyasati Ashrafiya (State Aristocracy) and the monopolization of wealth and resources in Pakistan

In another article, Deadly debt trap, Huzaima Bukhari and Dr. Ikramul Haq talk of Riyasati Ashrafiya’s plundering and monopolization of wealth and resources of Pakistan.

They write:

“The way the government is moving our foreign debt would reach US$75 billion in 2015 and domestic debt would be Rs22 trillion. The policies of appeasement towards tax evaders, money-launderers and plunderers of national wealth and monopolisation of resources by Riasti Ashrafiya (state aristocracy) have pushed the country towards disaster.”

And:

“The present crisis testifies to the failure of power-hungry, money-greedy politicians and incompetent, inefficient and corrupt bureaucrats. Even the so-called technocrats always take the first flight to Washington after creating mess — where are Shaukat Aziz and Abdul Hafeez now? In this bleak scenario, Riasti Ashrafiya is not ready to surrender extraordinary perks and privileges enjoyed by them at the cost of taxpayers’ money. How can rulers and bureaucrats living in fortified containments, completely oblivious of the ordinary people’s plight, feel the pinch of life’s hardships?”

See the full article (The News August 4, 2013): Deadly debt trap