Dr. A Q Khan
Mohsin e Pakistan

It’s the judiciary, stupid (26 Nov-2008)

Posted in English Articles  by draqkadmin
November 26th, 2008

Random thoughts
By Dr A Q Khan

I don’t belong to the lawyers’ community but that doesn’t mean that I am unaware of their activities. The greatest lawyer was the creator of Pakistan, Quaid-e-Azam Mohammad Ali Jinnah. Talking of lawyers is synonymous with talking about the attitude of the judiciary.

When the young governor Bill Clinton challenged the elder Bush (George Sr.), he was considered to be the underdog. Clinton put his finger right on the one festering sore in America at that time, the bad shape of its economy. When someone tried to draw his attention to other issues, he said: “It’s the economy, stupid.” And as you all know, he went on to win the election. I mention Clinton’s election because he dealt with the real issue. Our political parties sing the same song over and over again – 30 years of army rule is the root cause of all evils in Pakistan. They totally ignore a much more important factor – the judiciary.

Personally, I would like to raise the slogan: “It’s the judiciary, stupid.” It’s the judiciary, meaning that the root cause of all our problems is a corrupt and characterless judiciary.

Everyone recalls that Pakistan’s foundations were extensively damaged by Ayub Khan. The truth is that the foundations had already been destroyed by Chief Justice Muhammad Munir in 1954. Had he not supported the dictator Ghulam Muhammad and had he decided the case fairly and in favour of Maulvi Tamizuddin Khan, our history would have been different and army rule would not have even taken hold. Even at that time a few brave and principled judges tried to keep the flag of the judiciary high – nobody can forget the name of Justice A R Cornelius, Justice M R Kiyani and a few others.

When Gen Zia-ul-Haq toppled the elected government of Zulfikar Ali Bhutto it was the judiciary that validated all his illegal actions. Instead of sending Zia to the gallows for subverting the Constitution, they sent Mr Bhutto to the gallows for a crime not committed by him. I personally know many facts about this case and will divulge them all one day. Justice Anwarul Haq, considered by many as not being worthy of being in the judiciary, and A K Brohi used to have regular meetings at Army House and each and every decision regarding the case was taken there. The authority to amend the Constitution was given to Gen Zia by Justice Anwarul Haq without the consent and knowledge of his colleagues. Justice Dr Nasim Hasan Shah, who eventually became chief justice himself, had the courage to acknowledge that extreme pressure was exerted on the judges to deliver the desired judgment. Gen Zia himself told Gen S A Z Naqvi (the-then adviser on security to the president for nuclear programmes) and myself that these judges were visiting him regularly and assured him of their all out support for any legislation he needed. The proof of the mischief manifested in the judgments of the Supreme Court in the infamous Nusrat Bhutto and Zafar Ali Shah cases.

What a travesty of law and Constitution! Unfortunately, these acts of treason were not punished by later governments, setting the stage for their repetition in the future. When Gen Musharraf staged a coup against Nawaz Sharif, many judges went out of their way to please him. All extra-constitutional acts perpetrated by him were validated by the Supreme Court and he too was given the illegal authority to amend the Constitution.

Just after this judgment, I happened to meet Sharifuddin Pirzada, then attorney general Aziz Munshi and Justice Mohammad Nawaz Abbasi. We were on good terms. I started chatting with Aziz Bhai and remarked that he had won the case hands down. Justice Abbasi then smiled and remarked that in the judgment written by Aziz Bhai no lacuna was left and even the authority to Gen Musharraf to amend the Constitution had been included.

Many of us know that during the initial stages of World War II the British were being beaten by the Germans. As this was happening, the British Parliament decided to request Winston Churchill to take over as prime minister. After taking oath, he held a meeting with senior staff. They immediately started talking about the desperate situation, the casualties, the bombings and so on. He looked at them and is reported to have asked: “Are the courts dispensing justice?” After receiving an affirmative answer he said: “Fine, then no nation can defeat Great Britain.” And history is witness to that. I myself saw the devastation of German cities when I went to Berlin in 1961.

And now back to the more recent past. A lawyer once told me that the judge hearing his case had told him that he was under tremendous pressure to give a judgment against him and in the favour of government. The judge could not withstand the pressure and as a result the judgment went against my lawyer friend. Judges are not posted by God. Most are selected from the lawyers’ community and the choice is often influenced by sycophants. A small number of honest, capable lawyers do manage to become judges by sheer luck. As the saying goes: “As you sow, so shall you reap.” Here we have a judiciary chosen from the lawyers’ community. We have just witnessed an unprecedented lawyers’ movement and a principled stand by many judges. Unfortunately, our national characteristic reared its head and soon a serious rift appeared between the two groups.

Recently even Barrister Aitzaz Ahsan showed his helplessness and despair for the first time about the reinstatement of Iftikhar Mohammad Chaudhry. The lawyers have been projecting Justice Chaudhry as a symbol of independence. However, others point out his earlier love affair with Musharraf in which he ignored the bail application of Mr Zardari for years; the convictions of Yousuf Raza Gilani and Makhdoom Javed Hashmi were not well received by the ordinary people. When he was ready to take suo motu notice of such matters as traffic jams, prices of commodities and agriculture farms, he didn’t consider my illegal detention worth taking notice of. Even when a concerned citizen filed a petition in his court about my case, he conveniently dismissed it on the ground that the petitioner was not a blood relative. Is it not the right of every citizen to seek remedy against any injustice being done to a fellow citizen?

However, by taking a firm stand against Gen (r) Musharraf and saying “no” to his dictates, Justice Chaudhry redeemed himself of some of his earlier wrongdoings. He is now the symbol of an independent judiciary and he has infused a new spirit into the lawyers’ community. Whenever someone talks to me about his previous omissions, my answer is very simple. Before the companions of our Holy Prophet (PBUH) embraced Islam, all their previous sins were forgiven.

The present government should not be afraid of any unforeseen, unexpected or unfavourable decisions on his part. I am convinced that Justice Chaudhry and his former colleagues would not do anything to derail the hard-won democratic setup and would definitely help in establishment of a solid democratic system.

While living in Europe for 15 years, I saw prime ministers and ministers being hauled before magistrates and penalised. Look at the role of the judiciary in our neighbour. When Indira Gandhi declared the emergency, the judiciary declared it null and void, elections were held and Indira Gandhi was sent packing.

Despite the Quranic edict that a dishonest judge will forever dwell in hell, we all have heard of many a corrupt judge. A judge should remember that Allah will not pardon him if he doesn’t dispense justice in the true sense of word and a corrupt judiciary may also face a movement by the people. If some judges have taken a stand for the independence of judiciary, the democratic powers must support all those judges and should not have a “criterion” for their reinstatement.

Addendum: In my last article on how to achieve peace in FATA, I omitted suggesting the names of Roedad Khan, former interior secretary, and Aziz Khan, a retired diplomat. Both these gentlemen are Pathans of great understanding and knowledge about the tribal areas.

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