A landmark judgment

AFTER weeks of speculation and suspense, the judgment is finally in. Under attack on every front and getting more rattled by the day, the government suffered what could be a crippling body blow on Friday when the Supreme Court unanimously restored Mr Iftikhar Mohammad Chaudhry to the office of Chief Justice of Pakistan, ruling that the presidential reference against him was illegal as were the CJ’s suspension and the decision to send him on forced leave. The appointment of an acting Chief Justice was also declared unconstitutional. Restoring the CJ with effect from March 9, the day he was made ‘non-functional’, the apex court further held that the Judges Compulsory Leave Order 1970 was ultra vires of the Constitution. The only point on which the bench was not in total agreement was the setting aside of the presidential reference, where a 10-3 majority prevailed. The hearing of the CJ’s petition lasted six weeks and the full implications of his vindication will become clearer with time. By publicly accepting the ruling, the government may try to spin the outcome to its advantage, stressing that it allowed justice to take its course. This does not, however, alter that fact that its actions on March 9 and in the days that followed represented a frontal assault on the independence of the judiciary. If the president and the prime minister are now in an accommodating mood, it is because they have no other option. As for the Chief Justice, he stands vindicated but it remains to be seen what role he can play in future cases involving the federal government. After his lengthy court battle and public rallies, can he be fair and just to those who tried to destroy him? Would a conflict of interest arise?

The president, for his part, stands on increasingly shaky ground. Ill-advised and possibly misled, he blundered badly when he ‘summoned’ the Chief Justice to the Army House and asked him to step down. Hubris probably played a part, as may have the track record of the higher judiciary in its past dealings with military rulers. In short, President Musharraf simply could not have foreseen the consequences of his actions on that fateful day. Confronted with a bevy of intelligence officials and a huge chargesheet, the Chief Justice was no doubt expected to acquiesce meekly and fade away. Instead he stood his ground, and with that one defiant gesture altered the balance of power in the country. Until then, the beneficiaries of the engineered democracy foisted on the country in 2002 had seemed secure in their derived authority, shrugging away scandals that would have rocked previous governments and caring little that they lacked legitimacy in the eyes of the people. The president-cum-COAS made all the decisions then and it was expected that the government that emerged after the next elections would, like the present one, be entirely of his own choosing. Cronies insisted that the president would be re-elected by the sitting assemblies, and his holding on to both offices was a distinct possibility. Some of that may still come to pass but much has changed since March 9 and nothing can be taken for granted any longer.

More than the government or the Chief Justice, the last six weeks served as an acid test for the judiciary itself. In the end it acquitted itself well, choosing not to go down the route taken in the past. A Supreme Court that sanctified Ayub Khan’s martial law in 1958 and legitimised Ziaul Haq’s usurpation two decades later has now set a historic example that could help thwart any future adventurism by military men. The question on everyone’s lips is: has the judiciary finally come of age?

Suicide bombers’ day

ONE of the bloodiest days in Pakistan’s history coincided with remarks by the White House spokesman that America had not ruled out military intervention in Pakistan. On Thursday, terror struck Pakistan from north to south, the casualty toll being at least 52 dead and over 100 injured. Thirty died in Hub in an attack directed at a Chinese convoy, 18 were killed in a mosque in Kohat when a fanatic blew himself up, and seven at Hangu in another suicide strike. The backlash by those outraged by the consequences of the Lal Masjid operation has so far resulted in the death of 118 people since July 12. Evidently, insanity seems to have gripped the Taliban and their supporters, for they seem to believe that the killing of innocents is justified to vent anger over the government’s crackdown on Lal Masjid terrorists.

It is a measure of society’s values that two bigoted clerics have been a source of terror in the Dir-Swat area. The man who first made life miserable for the people in the Malakand division was Sufi Mohammad. The founder of Tehrik-i-Nifaz-i-Shariat-i-Mohammadi, this man was responsible for the death of hundreds of young men whom he brainwashed into going on a jihad in Afghanistan to fight the Americans there. As a consequence, he became so unpopular with his people that he went underground to save himself from the people’s fury. Now he is under detention. The cause of ‘jihad’ has now been taken up by his equally bigoted son-in-law, Mullah Fazlullah. After his father-in-law expelled him from TNSM, Fazlullah is now running his own show, inciting people to attack Pakistan security forces in the name of jihad. His main weapon of propaganda is an illegal FM radio station through which he is preaching violence and asking the people to revolt. Even though most people are indifferent to his calls, he has created an atmosphere of violence and terror in the area.

It must be recognised that the government’s handling of the Lal Masjid affair provides the militants a pretext for killing people. There is no doubt the rebellion had to be crushed. The Aziz-Ghazi brothers ran a government of their own, set up a court, armed their acolytes, and sent them into the heart of Islamabad to attack shops and kidnap people whom they considered guilty of immoral activities. They used the sacred precincts of the mosque to hoard arms and ammunition, killed security personnel and indulged in arson. The protracted negotiations with the two brothers failed, because, as Maulana Fazlur Rahman said, the two brothers showed no flexibility. The delay in the crackdown, the intelligence agencies’ failure to check the goings-on in the mosque and the heavy civilian casualties have armed the government’s critics with a propaganda tool. But the absurdity of the logic — that they have a right to kill innocent people because they are opposed to the government’s foreign policy or they want Sharia in Pakistan — seems to be beyond their comprehension.

While pursing the war on terror, the government must let its American friends know that fighting the Taliban in this country is the responsibility of the people and the government of Pakistan. Foreign intervention will completely change the picture, and sabotage rather than advance the cause of the war against Al Qaeda and the Taliban. If Pakistan finds it difficult to pacify the militants in the mountains, the Americans will find it many times harder. Besides, the political storm any American intervention will create could only add to the country’s destabilisation and help the pro-Taliban elements waiting just for this kind of opportunity. The tribesmen defied the Mughals and the British for centuries, and ultimately the two had the good sense to strike an understanding with them to ensure peace. Islamabad, too, has no choice. While it must answer force with force, it must never give up the political option, and seek the cooperation of the moderate among the tribal elders to rid the area of terrorism.

A defining moment for the judiciary

I HAVE been following with great interest the proceedings of the case of the Chief Justice of Pakistan. The judiciary is an institution with two sides like that of a coin. One is external which is visible to the people and the other is internal which is not visible and is not discussed in public.

What happens inside the judiciary and to the judges as they interact with the executive is not divulged to the outside world. The Chief Justice knows better because he controls the administration and deals with the executive in that connection.

So there are wheels within wheels. The executive always tries to win over the judiciary by following a carrot and stick policy. The CJP administers the oath of office to the president and vice versa, and there are important functions in the presidency and PM House with the participation of foreign dignitaries which are attended by the CJP.

Both civil and military governments want a friendly judiciary and they don’t like decisions against the government or its policies. Even otherwise, Islamabad is a small town with a limited social life. On the administrative side, the CJP can accommodate the federal government but without transgressing the Constitution and law.

During my tenure as CJP, a request was made to me by Prime Minister Nawaz Sharif for the appointment of a particular lawyer as attorney-general of Pakistan. I consulted the CJ of the high court of the province concerned and in spite of some difficulties, we were able to make the appointment as wished by the prime minister acceptable to all relevant quarters.

In February 1997, Mian Nawaz Sharif won the elections and took oath on February 17. One or two days before taking oath, he came to my residence in Rawalpindi for a courtesy call accompanied by Messrs Wasim Sajjad, Sartaj Aziz, Chaudhry Nisar Ali Khan and Ishaq Dar.

We had a friendly meeting of 45 minutes during which he talked about his heavy mandate and expressed his interest in dispensing cheap and quick justice at the doorstep of needy people and sought the cooperation of the courts. I assured him that the same was possible under the existing judicial system if more judges and funds were provided. Our working relationship started on a happy note until a misunderstanding was created between us. His ears were poisoned by hawks in his cabinet and supporters.

Differences started with the setting up of speedy courts, which was a parallel judicial system manned by retired judges or lawyers appointed at will for limited tenures, and then over the appointment of five judges in the Supreme Court.

Punjab Chief Minister Shahbaz Sharif was not willing to let go of the CJ of the Lahore High Court and two other judges to join the Supreme Court and refused to give reasons as directed in the judgment of the Judges’ case. Prime Minister Nawaz Sharif cut the number of the judges of the Supreme Court from 17 to 12 to block the appointments.

Of course, the 13th and 14th Amendments were made in the Constitution without a debate by relaxing the rules of procedure. Cases were taken in hand for hearing against the prime minister on the grounds of corruption, abuse of authority and contempt of court.

He, his supporters and party workers resented this very much and there were camps of hawks and doves. Many well-wishers gave correct advice and were in favour of an amicable settlement but the hawks remained adamant.

President Farooq Leghari and then COAS General Jehangir Karamat intervened to defuse the situation and to avoid a conflict between the executive and the judiciary, but to no avail. General Nasim Rana, DG, ISI, was also playing an important role and they are very important witnesses.

On the other hand, the government was trying to find a legislative way to get rid of the CJP. The National Assembly and Senate were in constant session. They were debating the taking away of the administrative powers of the CJP by making a roster and assigning cases to be exercised by a board of senior judges.

Damage is always done to the institution from within. The prime minister was advised to work on the judges and isolate the Chief Justice. He had a meeting with me at his Model Town residence and in the presence of Mr Majid Nizami and Mr Shahbaz Sharif offered me a better position after my retirement as CJP if I cooperated.

In return, he wanted me not to hear cases against him. I did not agree and insisted that I would decide cases according to the law, that I had no animus against him and that he should not be fearful if allegations were false.

I also offered that if he was interested in speedy trials, then within the same judicial system, I was prepared to make the high court a trial court and the Supreme Court an appellate court to decide cases in the shortest possible time, provided he gave more funds for increasing the number of judges. He agreed first but then backed out.

I was also hearing the case of the political wing of the ISI as to under what law it was functional and the scope of authority under that law. It was under such circumstances that the government of Nawaz Sharif finally decided to work on the judges of the Supreme Court to go against me. It was also decided that first a judicial order would be obtained in any proceedings, suspending the notification of my appointment as CJP and then to dislodge me by force, including an attack on the Supreme Court.

I was not afraid of the two murder attempts on me and numerous letters threatening to kill me and my family members. I sent the copies to the president and the DG, ISI. The threats were that if anything happened to the prime minister, I would not be spared.

I was presiding over the bench hearing a contempt case against the prime minister. On his request, the bench granted one week’s adjournment during which petitions were filed in the registries of the Supreme Court alleging my appointment to be unconstitutional for the reason that I was not the senior-most judge when I was appointed CJP. I was fourth on the list. The judges who were superseded did not resign or step down as is done in the armed forces.

When General Musharraf was appointed COAS out of turn, he was number three on the list. Two aggrieved generals resigned. On November 27, 1997, the Quetta bench of the Supreme Court composed of two judges, Irshad Hassan Khan and Khalilur Rahman, passed an interim order in the incidental proceedings of a rent case that the Supreme Court was incomplete as the CJP was appointed out of turn.

The third judge, Justice Nasir Aslam Zahid, reached Quetta in the evening and he also appended his signature. Incidentally, all three judges in Quetta were inducted in the Supreme Court on my recommendation and had been administered their oath by me.Justice Saeeduzzaman Siddiqui passed a similar order in the Peshawar bench. Justice Mukhtar Junejo was also a member of the bench but refused to sit on the bench in that case. Justice Siddiqui took over powers of Chief Justice and issued his own roster and directed that the matter be heard by a full court except the CJP who was restrained and Justice Ajmal Mian who was the intended beneficiary and was conveniently present in Islamabad on one week’s leave as he wanted to defuse the tension and resolve differences among the judges supporting the CJP and those supporting the prime minister.

Orders passed by the Quetta and Peshawar benches were given coverage on TV because they were in favour of the government. On November 29, 1997, the Supreme Court was stormed by a mob. I had advance information that preparations were afoot to send a large crowd of persons from Lahore by Chief Minister Shahbaz Sharif in buses. I informed the DG, ISI, who later told me that the government was not involved.

One evening before the passing of the order by the Quetta bench, Justice (r) Senator Mohammad Rafiq Tarar flew in a private plane of the chief minister along with others and had a meeting with two judges of the Supreme Court from Lahore. He did a faithful job of winning over the judges of the Supreme Court in favour of the prime minister. He was rewarded with the post of the president.

It is surprising that the Supreme Court judges did not raise any objection for nearly three and a half years while I was Chief Justice and suddenly realised that my appointment was unconstitutional because I was appointed out of turn.

It turned out that out of 17 judges, 10 supported the prime minister and six were with me. Out of the 10, eight were appointed on my recommendation and were sworn in by me. All of them have retired from the Supreme Court and some got assignments after retirement. My only fault was that I was appointed out of turn, which was declared unconstitutional by 10 judges of the Supreme Court, who supported the prime minister and voted against their own CJP.

Rule of seniority was laid down in the appointment of judges when the process of consultation was involved. In the appointment of the CJP, there is no consultation as the president can appoint any one of the judges as Chief Justice or appoint a lawyer who has practised for 15 years as an advocate of a high court directly to the post of CJP.

The Constitution can be amended. In fact, that is the only way to remove ambiguity in the language. Nobody talks about the attack on the Supreme Court in November 1997 and how it happened and what was the conspiracy between certain judges and the government. The judges followed the directions of Justice Saeeduzzaman because the government gave its nod. These are the circumstances to be considered while evaluating the judgment in Malik Asad’s case. None of these 10 judges regretted the attack on the Supreme Court.

The whole offensive was filmed by hidden cameras fixed on the premises of the Supreme Court and was seen by the president, the prime minister and the COAS. Photographs were published in newspapers showing federal ministers leading the mob. I sent a reference to the president against Justice Saeeduzzaman Siddiqui on grounds of misconduct but the prime minister refused to act.

President Musharraf in his book ‘In the line of fire’ has stated that the prime minister convinced certain judges to take his side and they passed a resolution against their own Chief Justice and then the prime minister got his party goons to storm the Supreme Court building while the court was in session.

On page 84 of the book it is stated that this matter was discussed at the meeting of the corps commanders and the author (who was himself a corps commander) supported the idea that the president and the Chief Justice be sacrificed and the prime minister be saved. Against such a background with the backing of the prime minister, the federal government and the army, the judgment in Malik Asad’s case is to be considered. It is not fair to say that it is a matter between the judges of the Supreme Court, forgetting and ignoring the conspiracy and the attack on the Supreme Court.

The 13 judges of the Supreme Court, who heard the case of Chief Justice Iftikhar Chaudhry, can also consider the doctrine of necessity and relevant case law on the subject and bury the hatchet for ever. They can let ambiguities in the Constitution be rectified by parliament so that all the institutions mentioned in the Constitution can perform their duties within the parameters laid down by the Constitution to enable the nation to enjoy the fruits of real democracy after 60 years of political waywardness and constitutional confusion.

If they want the senior-most judge to be Chief Justice and the Chief Justice to be appointed and removed by the remaining judges of the Supreme Court or high court, let it be said specifically in the Constitution so that the workload of interpretation by the courts is decreased and time is given to litigation for the common man.

The writer is a retired Chief Justice of the Supreme Court. This article was written before the Supreme Court gave its verdict on Friday.