Supreme Court of Pakistan is about to give its verdict on Qazi Hussain Ahmed’s petition and it should be interesting to find out what possibly would be going through the mind of a supreme court Judge sitting not only at one of the most important and respected position in Pakistan but also at the brink of a possible division in history between pre & post 9 march of Pakistan.
The long & eventful struggle by people of Pakistan led by highly active lawyers community along with the civil society finally came to an end (or new beginning?) on July 20, 2007. I didnt mention political parties in above on my personal analysis of their failure to prove their sincerity & dedication with the cause, except possibility Imran Khan, the Center right voice who raised the slogan of No-Justice No-progress in 1996 when even prominent political voices like Benazir & Nawaz hardly seemed bother about this important balance-act in a society and country.
This post, in no way attempts to predict an outcome in this petition. It only tries summaries different influences that are not alien to a Judge’s mind
Post 20 July events are equally worth a note. We saw a new, & I call it renovated, Judiciary (unlike “liberated as majority thinks) showing some signs of activism. Qazi Hussain Ahmed went to court challenging president’s dual office status for elections, testing judicial metal of freedom. Keep in mind that during this period PPP & govt. were close to a deal and MMA seemed divided itself on the issue of resignations. Both events later resulted in formation of APDM. Politicians, this time again seemed undecided about their direction. I mentioned above few facts for an important reason that i shall dwell into later.The case is being heard by a 9 member bench headed by Justice Rana Bhagwandas.
During proceedings different observations were made by SC judges which are not only interesting in meaning but more importantly in context. Hard-line anti-Musharraf groups may view it as an diversion from a free judiciary (renovated in my words). Is that really the situation?. If so, what are the possible reasons?. SC’s one observation was related to how it can reject an amendment approved by parliament, referring to the deal done by MMA with government that allowed Musharraf to stay in uniform. Parliament is supreme in a parliamentary form of governance. A similar argument was earlier floated when SC was hearing CJP case that met an equally interesting reply from one lawyer who asked what if parliament allows marriage between Brother and Sister. Will the SC still take the same position?. The point was should SC always see a case through the glass provided by the constitution or see otherwise too when justice demand.
The observations gave an impression that not only the Judges are unhappy with the fact that all burden has been thrown onto Judiciary & unfortunately every Tom Dick & Harry thinks SC is a place to settle political scores. Its indeed not going well with a SC judge that political parties disobey public mandate when they see fit, break rules & abandon principles when they engage in deals in order to ensure a share in power but when things dont work out they choose the court to wash their dirty linen. How can the SC judges forget MMA dealing with a dictator only for its own good few years back, providing him the dream package to escape constitution?, that the same MMA is a partner in crime in two provinces enjoying every benefit for last 5 years & yet crying foul on legal matters as if its the most grieved party and is doing all this for people of Pakistan. Indeed they are not ignorant of possible PPP-MUSH deal too & know very well for whom all this drama was/is being staged. The nation cannot expect every judge to act with the bravery & nerves like CJP when its about taking on the might of establishment. How many Iftikhar Chaudhries we had before 9 March? One has to understand that a judge only answers the questions raised & cannot go beyond request. The SC judges ever since Justice Munirs infamous verdict had to bear good deal of cursing & recent decisions indicate they tried to make that a history but what if their righteousness is washed away between deals. Why would they take on a powerful establishment only to find that a corrupt leader bargained to allow a dictator what was legally not allowed at first place & rejected by a SC judge?. The power to amend constitution is nothing less than a magic stick. Its a mother and child at the same time. Because parliamentary form of governance only counts heads, unlike Shariah where weight also matters, a parliament full of fools can cross any limit of wrongness & yet it will be correct technically. This dilemma is not hidden from a SC judge. The MMA were the best of fools when they signed the 17th amendment and guess who is bearing the burden of all those sins now?, the SC. Its natural that one party will be happy with a verdict and other may accuse SC of dishonesty. Such a heavy price for no guilt of Supreme court.
In commenting on judges we forget that they are, after all humans and are not devoid of external influences, are not some perfectly ordered machines programmed in a legal syntax to act precisely according to law in book. This is very much true in our country where we all know public opinion about lower echelons of judiciary who later reach SC, with experience. But experience never means credibility or honesty. Its only a numerical value. In our quest for Justice we have taken it for granted that a SC judge should also keep an eye on society as a whole, which is absolutely wrong. e.g A judge cannot do policing .A judge only gives verdict, interpret constitution & provide relief to anyone who knocks at his door.
Our judiciary however brave wont opt head-on collision with Army or establishment. Not for now at least. Such a scenario will be just another pretext for Musharraf to declare Martial law, bring a new PCO. Why a judge risk himself when his verdict could be washed away by the likes of Fazl-ur-Rehman & Benazir whose commitment to democracy, by their record, is very poor.
Also technically, it may well be that the lawyers from Qazis side havent done their home work. From their statements appearing in papers its evident that beside legalities there is a hint of some political leaning. On few occasions the honorable judges had to interrupt & ask them to argue on points related to case. Furious statements outside court against any possible verdict in governments favour are not helping either.
The judge knows how incompetent this government is & who calls the shots but in a worst case scenario it may well come down to Army establishment vs. Judiciary. One judge commented that the parliament is a Lame duck. How can they transform a lame duck into a Lion. Political parties are engaged in deals while the people of Pakistan are running from pillar to post for flour. If political parties accuse a judge on his sincerity for this its a different matter but such statements indicate a behavior in crisis among groups (MMA, PPP, PML, Lawyers, Judges, Gov.) where every group wants to benefit without taking responsibility. This is exactly the reason why political parties are also divided on the issue of resignations with Fazl-ur-Rehman & PPP least willing to join any prospects of a long struggle. They want their share now & see opportunity coming. In the long run, a judge has nothing to loose by giving a judgment in favor of government.
This all, in no way justifies that a judge is allowed to be influenced but it only tries to take a pragmatic approach in a country where upright honesty, principle & professionalism is difficult to be found, even if argument is related to a respectable institution like Judiciary with history standing firmly at our side. It was this reason I had used the word “a renovated judiciary earlier as I guess its nearly impossible for a Judge to change his behaviour at this stage & age of life. A miracle is required to turn a dishonest judge into an honest and brave one from as an out come of events like March 9. This argument bears much weight in a country where according to Transparency International; Judiciary is considered 3rd most corrupt institution by public.
[Image : SC Paksitan]