Opinion

Poetic Justice or Retribution (or Both?)
By Mohammad Ashraf Chaudhry
Pittsburg. CA

Who has actually let down Pakistan? Most will say the Military and the Mullahs. The weekly “Outlook”, of February 2, 1974, however, pointed out a third factor, too: “Pakistan was let down by the Bar. Members of the legal profession all over the world are custodians of the rule of law and they know better than most that democracy is the biggest shock absorber during the formative phase of a state. But in Pakistan the best legal brains offered to stabilize dictatorial regimes. Mr. Mohammed Munir’s role is too well-known; Mr. A. K. Brohi helped Ghulam Mohammad; Mr. Manzur Qadir came to the rescue of Ayub Khan and Mr. Mahmud Ali Kasuri piloted a martial law constitution despite whatever he may now say in support of democracy. (Add to the list Mr. Peerzada for inventing the law of necessity) They are all back in their chambers brooding over the past and talking pontifically, without realizing how much they themselves are responsible for this present state of affairs’. “The present state of affairs” as it exists today in the year 2007 is strikingly the same as it was in the year 1974.
Mr. A. G. Noorani in the Introduction of his interesting book, “Indian Political Trials’, writes, “History bears witness that, whenever the ruling powers took up arms against freedom and right, the court rooms were used as the most convenient and plausible weapons. The authority of courts is a force that can be used both for justice and injustice. In the hands of a just government, it becomes the best means of attaining right and justice, but for a repressive and tyrannical government no other weapon is better fitted for vengeance and injustice than this.
Next to battlefields, it is in the courts that some of the greatest acts of injustice in the history of the world have taken place. From the founders of religions to the inventors and pioneers of science, there is no truthful or righteous movement which was not produced before the courts like criminals”. And the latest to stand in the dock is none else, but the very Chief of the Judiciary in Pakistan, Justice Iftikhar Muhammad Chaudhry.
Mr. Javed Hashmi sometime ago circulated a letter and went to jail on the charges of treason; Mr. Asghar Khan is still explaining why he wrote the letter to General Zia. How come, Mr. Naeem Bukhari, an ordinary citizen, and a license-holder practicing Supreme Court attorney, writes one letter to the Chief Justice of Pakistan in whose court he plays Thucydides, and guess who, this time, gets in trouble? Not the author of the letter, but the very Chief Justice of the country, who in protocol order is next to the President, and who acts on his behalf in his absence. He becomes what the government conveniently calls, “non-functional”, a term the people and legal community, however, translate somewhat differently as, “suspended, removed; house-arrested etc”.
The Dawn of March 11, in its Editorial, “A big blow to the Judiciary”, calls it “another sordid chapter… added to the judiciary’s chequered history”. Whatever the charges against the Chief Justice, frivolous or serious, one better not comment on them as they are to be discussed in the Supreme Judicial Council, (SJC), but what irks any friend of Pakistan is the clumsy treatment that has been meted out to the head of the Judiciary of an Islamic country.
The religion that Muslims follow is very clear in this regard. “Treat others, (not as brothers because brothers prison, murder and plot against brothers), as you would like yourself to be treated by them”. One is also reminded of the last words of Francis Bacon when he spoke before the King. ‘Those who strike at your Lord Chancellor now, will strike at the Crown too”. And strike they did as they beheaded King Charles I (1649) just within a period of 23 years.
Who inspired Mr. Naeem Bukhari to write such a letter? The government or, as he claims, his own conscience. Was he within his rights to address such a letter to the Chief Justice in whose court he practices? After all, a serving general does not write “open letters” against his Chief if he is in the right state of mind. And if he thinks he was within his legal rights to write such a letter, then what about the Supreme Court Bar Council? Why did he by-pass this body?
Can any institution in the country, namely the Army, the Judiciary, the Executive or the Legislature, function smoothly if people with such streaks of wisdom as Mr. Naeem Bukhari had, start writing “Open Letters”, framing charges and then making them public? The license that Mr. Bokhari holds makes him different from any ordinary citizen, in case he chooses to remind us that he did so, exercising his right for freedom of expression. Does any other country in the world allow such a breach of decorum?
Even the cricket players risk losing their Test status when they chose to open their mouths against the Cricket Board. Doctors are also ordained to stick to the medical ethics code. Mr. Naeem Bokhari is a licensed person, and he is in the habit of speaking as a “self-righteous” pundit, it is time that he is made to realize that being a TV mediator is different from being a critic of the country’s CJ. Did he ever feel similar qualms of conscience, and write a similar “open letter” against President General Pervez Musharraf, listing a few of the many grievances that the people and the opposition are orchestrating all the time, at least one pertaining to his being the Army Chief for nine years along with being the President of the country?
It is heard that Mr. Naeem Bukhari’s license to practice has been cancelled. This is the least that he deserves. Some other questions also crop up. Why did President Musharraf act the way he did? What he needs most under the present circumstances, is not a battalion of sycophants and time-servers, but the kind of apex court and the kind of Chief Justice that Justice Chaudhry was. To deal with the extremists and religious fanatics who are after blowing up the courts; to bridle those who are busy in greasing their palms; to rein in the extravagances of the bureaucracy and of the police, to chide the district attorneys (sarkari vakils) who are another name for corruption and inefficiency, what the country needed most was a man like Justice Chaudhry who in many ways was doing the government job by setting right many a wrong done by it. And, as repors the Dawn, “A larger question is Pakistan’s image”. The good in Pakistan hardly ever makes a news abroad; it is the bad happenings, like the honor killings, gang rapes, terrorism, suicidal killings, and news such as the treatment meted out to the Chief Justice of the country that hit the headlines abroad. Justice Chaudhry’s ‘Judicial activism” could have been a very potent and valuable tool for the government, and could have helped it greatly in its efforts to establish its writ and credibility in all circles, had the government not been blinded by its own arrogance. Alas, it chopped its own feet. How will it stand now?
This government has often quoted the hoodlums of the Nawaz Sharif’s government that had attacked the Supreme Court and had made the Chief Justice run for his life; what justification will this very ‘decent and democratic” government offer now for making a popular Chief Justice, “non-functional”? The Dawn of March 11 is right when it hints, “The drama surrounding Chief Justice Sajjad Ali Shah’s ouster from office and the role played by ‘brother judges’ made a mockery of the judicial norms and are a shameful part of Pakistan’s history…” General Zia sacked Chief Justice Mohammad Yaqoob Ali, and made no secret of his scant regard for the 1973 Constitution. He defined it once as no more than a scrap of paper which he could tear up any time. Mian Nawaz Sharif horn-locked himself with Justice Sajjad Ali Shah till both had had to be sent home by a General’s wand. Doomed are those nations that compromise with justice and Pakistan is one such country.
Serious errors of judgment and discretion appear to have occurred in the Friday episode. President Musharraf very well could attire himself in a civilian address and call the CJ in the President House; rather than usher him in his ‘camp office”. Why did he choose to wear the uniform? The CJ is answerable to the President or to the Army Chief, or to both-in-one?
By the time this article is published, the Supreme Judicial Council’s proceedings would already have taken place. The President of the Supreme Court Bar Association, Mr. Munir A Malik has already passed some remarks on the composition of this Council. To him the Supreme Judicial Council should have been headed by the senior most Judge who in this case is Justice Rana Baghwan Das, currently on leave in India. He also fears that the Friday episode can easily be construed as having political motives when viewed in the political background prevailing in the country. He says that in his personal opinion, ‘the current year in the country’s political and judicial history is exceedingly important. This year the SC is likely to take up for hearing some very important and sensitive cases which could register some very far-reaching consequences in the country’s future. For example, the case of the dual nationality, as some say concerning the PM, the case of re-electing the President by the current assembly; the eligibility of the General himself for the post of the President; the case related to donning the uniform by the President; the case of striking a balance of power in all the three branches of the government, and most importantly the case of the disappearance of hundreds of people not so far produced in any court by the government etc.”
President Musharraf already had had a platter full of problems. Things have come to such a pass that no body appears to be happy with him; neither the Americans nor the neighbors; neither the politicians nor the people, neither the attorneys nor the judges. The pontiffs of the country are already after his blood. Has he run out of luck that he has begun making such decisions like the one he made on the fateful Friday?
In the wake of the militancy and lawlessness in the country, people like Justice Chaudhry should have been his true asset; why did he chose to take him as his rival and on whose advice? Was it the rising popularity of the Justice or a perception that he was running a dual government? Whatever be the reasons, he certainly deserved a better treatment. And why forget the Noble Qur’an when it says, ‘O you who have attained unto faith! Be ever steadfast in upholding justice; bearing witness to the truth for the sake of God, even though it be against your own self or your parents and kinsfolk. Whether the person be rich or poor. God’s claim takes precedence over the claims of either of them. Do not then follow your desires lest you swerve from justice for, if you distort the truth, behold God is indeed aware of all that you do” (4:135), and Justice God will definitely do “even if it were of an atom’s weight”.

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