An Unfair Play of ‘My Lord’
By Shujaat Ali Khan
Middlebury College , USA
Although my feet were on the US soil when the Long March took place in Pakistan, my heart was still marching with the determined youth on the streets of Pakistan. On the16th of March, as the Pakistani nation stayed up all night, awaiting the speech of our Prime Minister, I too sat in my room eagerly waiting for his speech. After the speech had been delivered, I walked with my chest inflated with pride that our country had finally set an example even for some of the biggest democracies in the world.
My joy, however, was not to last for long. The same slogan that had charged the Lawyer’s Movement – or “Justice Movement” as I would prefer to call it – had come into question. The success of the “Justice Movement” amongst the youth of our country can be primarily attributed to the ideology behind the movement. “Justice for All” and “Justice for the People by the People” were all visions that had transpired in this movement and had bolstered the support of the youth.
On the 17 th of March, when the details of the notifications issued by the Ministry of Law and Justice came to public, I was surprised – if not shocked – to read one name in the list of judges to be reinstated to their previous positions. This name was, Justice Javed Iqbal. Although I praise him for his decision of refusing to take oath under the PCO, I am still doubtful about his overall motives behind this action.
On the 15 th of November 2007, an article written by Umar Cheema in The News stated: “Deposed Justice Javed Iqbal, who refused to take oath as a Supreme Court judge under the PCO, accepted a lucrative government position on Wednesday and assumed working as the Chairman of the Press Council of Pakistan.” After reading this I was quite disappointed by the justice’s decision. Refusing to accept the unconstitutional statuesque being enforced by a dictator on one day and accepting an office of profit from the same dictator a few days later was very contradictory. However, at that time this news piece was less disturbing for me as it came at a time when I did not have many expectations or hopes attached with the messy political system in Pakistan.
What was more disturbing though was reading another article on the 17 th of March 2009, which talked about the reinstatement of the same judge who had cheerfully accepted a new job under the Musharraf government, while the other judges who had similarly refused to take their oaths, had chosen to stay in their houses and stay committed to their jobs as judges of the Supreme Court of Pakistan. This move made me question that vision for Pakistan’s future which I had built in my mind during the last two years. Did we finally have the Rule of Law in our country?
Although our Constitution has been ravaged and manipulated by the dictators and aristocrats for decades, it would still be worthwhile to quote Article 207:
(1) Judges of the Supreme Court or a High Court shall not:
a. hold any other office of profit in the service of Pakistan if his remuneration is thereby increased; or
b. occupy any other position carrying the right to remuneration for the rendering of services.
Hence, when Justice Javed Iqbal, who was then a judge of the superior judiciary of Pakistan, took office as the Chairman of the Press Council of Pakistan under the Musharraf regime, he had clearly ceased to be a Judge of the Supreme Court of Pakistan. He had chosen to take an office of profit rather than stick with his right to the Supreme Court. I would want to stress to the readers that no other judge, except Justice Javaid Iqbal, who had been sacked by Gen. Musharraf, accepted an office of profit. Restoring Justice Javed Iqbal in the superior judiciary undermines the sacrifices made by the judges who were put under house arrest for months. The Justice Movement would not have reached the successful conclusion, had all the judges who refused to take oath under the unconstitutional PCO, taken up government jobs while hoping to be reinstated alongside Chief Justice Iftikhar Chaudry. Occupying “any other position carrying the right to remuneration for the rendering of services” is tantamount to expulsion from the position of a Judge of the Supreme Court. Disagreeing with this statement would mean refuting the Constitution of Pakistan; the same constitution for which the lawyers, civil society and the youth of our country have fought numerous times on the streets during the past couple of years.
With decisions such as the restoration of Justice Javed Iqbal, who himself chose to give away his right to function as the Judge of the Supreme Court of Pakistan, we must ask ourselves if this is the ‘Rule of Law by the People and for the People’ or ‘Rule of Law by the Aristocrats for the People’ or as Karl Marx would put it, “Rule of Law by the Bourgeoisie for the Proletariat”. Is this the democracy which we have envisioned for so many years? Is this the judicial system we had attached all our hopes and expectations to? If rule of law needs to be the governing principle of our country, it needs to be fulfilled in its entirety and at least in the very building that upholds this law. Moreover, it should be the Rule of Law as defined by the people of Pakistan!
Our country’s law has been tarnished by the “Doctrine of Necessity” that has accompanied all our dictators. It is shocking to see the pioneers of this Rule of Law, like Mr. Aitzaz Ahsan and Ali Ahmad Kurd, turn a blind eye to the reinstatement of Justice Javed Iqbal, when the act of his reinstatement is in itself unconstitutional.
Having the dignity and honor to stand up against President Musharraf, I believe that Justice Iqbal needs to refuse to take charge as the Supreme Court Justice. Not only will it help foster the rule of law in its truest sense, it will also set an example for judges of all times to follow. People breathed a sigh of relief after the reinstatement of judges and the sanctity of this judiciary needs to be preserved. If we cannot even assure the people of Pakistan, that the judges who decide their fate are following the constitution, then how can we expect our law agencies to enforce the rule of law in different parts of the country? Reinstatement of Justice Javed Iqbal is a blatant act of constitutional infringement and if the people do not realize that, we should not expect our democratic representatives in Islamabad to realize that. Moreover, Chief Justice Iftikhar needs to take notice of this as he has a responsibility towards no one but the people of Pakistan!
