Opinion

While deliberating on a multitude of petitions filed by Mian Nawaz Sharif and others in the so-called Memogate case, the august bench of the Supreme Court of Pakistan made observations and comments that have left many, including several ardent supporters of the lawyers’ movement, deeply disconcerted.
The honorable Chief Justice (CJ) of Pakistan, as reported by the print and electronic media, appears to have repeatedly referred to the Chief of Army Staff (COAS) General Ashfaq Parvez Kayani — one of the respondents in the memo case — with the honorific ‘sipah saalaar’ (Urdu/Persian for an army chief). If it was just restricted to using the vernacular terminology for the army chief, it might have been of little consequence. But the CJ, apparently also asked Husain Haqqani’s counsel Asma Jahangir, to show reverence to the ‘sipah saalaar’. He also seemed to have lamented that the learned counsel was deferential to the American General James Jones but not to the Pakistani ‘sipah saalaar’.
The question then is if it is a specific ‘sipah saalaar’ who deserves respect. And who gets to decide which particular ‘sipah saalaar’ has to be venerated, and when? Moreover, when is it kosher to discard the respect, disobey the ‘sipah saalaar’ and agitate against him? When can a critique be characterized as insolence for which Asma Jahangir had to be chastised? One must submit with utmost respect that with comments like these, my lord CJ is walking on very thin ice.
Who would know better than my lord CJ Iftikhar Chaudhry that there is no blanket respect guarantee for any public official, including the ‘sipah saalaar’. General Pervez Musharraf was a ‘sipah saalaar’ and the president — validated by none other than the apex court itself — when he, on March 9, 2007, illegally and maliciously showed the door to the rightful CJ of Pakistan, Iftikhar Chaudhry. Despite having taken oath previously at the hands of General Musharraf, the CJ refused to take orders from that ‘sipah saalaar’ or show respect to him that fateful day. For this the CJ earned the respect of hundreds of thousands of people across the globe.
That attempt by the ‘sipah saalaar’ of the time to tame the judiciary was bad and had to be resisted, and rightly so. But now people are supposed to click their heels and fall in line to the present ‘sipah saalaar’ and his sidekick who are on the verge of throwing a wrench in the works of the democratic system in the name of national security! I am afraid this can be (mis)construed as double standards. And frankly, when it comes to resisting military adventurers, the people have never sought permission from anyone before and, the profound regard for the CJ notwithstanding, they are not about to start doing so at anyone’s whim. The bench could have done without such references, especially in a case where the court itself has given national security pre-eminence over fundamental rights.
Earlier, during the course of the proceedings, the honorable Justice Jawad Khwaja had made another interesting observation that the judiciary was an independent organ of the state and was answerable to the people, not parliament. This is a double-edged sword that the esteemed judge has unsheathed. Relative insulation from public opinion is considered to contribute positively to a judiciary’s independence. In Testament of a Liberal, writing about judicial activism, the late Justice Dorab Patel had noted: “... It is not the function of court to please the public, but to uphold the laws. An independent judiciary means not only a judiciary which can resist the pressures of the governments, but also the pressures of the public opinion ...”
A simple question, then, is: which section of the public does the court intend to answer to? Is it the hordes of lawyers who held victory parades for Salmaan Taseer’s self-confessed assassin Mumtaz Qadri? Are the likes of Hafiz Saeed’s Jamaat-ud-Dawa and scores of other militant outfits flexing their muscle in the streets, the ones that the courts would find themselves answerable to? Unfortunately, if the dismal conviction rate of terrorists and the high incidence of jihadist mass-murderers going scot-free are any indication, one really has to wonder if the courts have already succumbed to the lethal cocktail of the national security jingoism and obscurantism.

I may be wrong but I am certainly not alone in holding this view. The anti-terrorism court (ATC) Judge Pervaiz Shah, who sentenced Mumtaz Qadri, had to flee Pakistan. I implore my lord Justice Khwaja to help determine why someone from the judicial fraternity had to seek refuge abroad. Does it say something about that judge’s confidence in the superior judiciary?
On the other hand, the Supreme Court took no time to suspend Husain Haqqani’s fundamental right to liberty. He was not even heard! A man who flew all the way from the US — against the advice of friends, I can say on good authority — to face the charges against him, suddenly became a flight risk? The way the former ambassador’s rights were suspended could seriously prejudice any commission, investigation or a trial court against him.
The great Dorab Patel had noted, “Laws conferring rights have to be construed liberally, while laws curtailing rights have to be construed strictly.” Unfortunately, the august bench hearing the case against Husain Haqqani appears to have turned this basic principle on its head. But what is worse is that when a court that has used the term ‘sipah saalaar’ almost interchangeably with national security, confiscates a man’s passport and asks him not to leave the country, that person is virtually a marked man.
Salmaan Taseer, Shahbaz Bhatti and, of course, Benazir Bhutto, were not murdered because they were guilty. The perceptions created about them ultimately led to their assassinations. Benazir was painted as a ‘perennial national security’ risk while Taseer and Bhatti were smeared as ‘sacrilegious’ — enough for the zealots to do the rest. Husain Haqqani’s life too is in jeopardy now. An extremely dangerous campaign against him is underway. His wife Farahnaz Ispahani, MNA, and Asma Jahangir have raised their concerns, on record, regarding his safety as well as the potential of extracting a statement from him under duress.
Husain Haqqani must put up the most robust defense through every constitutional, legal and political avenue available to him. But for those of us who had fought to restore this judiciary, it is time for introspection — and perhaps to brace for the next round of struggle.
Postscript: Husain Haqqani himself has now gone on record expressing fear that he may be killed.