Article written by members of the People’s Resistance
Originally written on Dec 26 2007, The PCO Chief Justice of Lahore High Court, Iftikhar Hussain Chaudhry, has since retired
A Bit of History
Pakistans history is chequered with instances of military taking over the state. When Ayub took over, he introduced a constitution (1962) that gave sweeping powers to the President and the military. On his downfall, General Yahya, the new military ruler issued Pakistans first Provisional Constitution Order (PCO) suspending the citizens human rights, civil liberties and right to approach a court of law.
After the promulgation of the 1973 Constitution – considered pristine and drafted by popular, unanimous choice – the military twice displaced civil power and took extra-constitutional judicial action through a PCO that required judges to take fresh oath: in 1981 (under General Zia) and 2000 (under General Musharraf).
After Musharraf seized power (Oct 1999) the courts were first purged of independent judges when several, including Justice Wajihuddin, refused to take oath under the 2000-PCO. An Army Colonel held Justice Saiduzzaman Siddiqui, the Chief Justice of the Supreme Court, hostage for several hours while the oath-taking ceremony took place elsewhere. The fear was that he would have refused to take oath and might have influenced other judges into doing the same.
The newly constituted Supreme Court under Justice Irshad Hasan Khan gave the military regime de facto recognition, but even they made it clear that they were doing so on condition that the judicial organ of the state remained uninterrupted. Justice Irshad Hasan Khan was duly compensated by appointment as the Chief Election Commissioner on his retirement.
The Supreme Court declared at the time that independence of the judiciary was part of the basic structure of the constitution and that the Parliament could not amend the Constitutions basic structure. The Chief Executive – as Musharraf had styled himself – was given power to amend but not alter the basic features of the Constitution.
Another condition was that extra-constitutional measures were permissible only when the Constitution did not provide a remedy and the action taken was proportionate to the emergency situation.
The Present Situation
During the recent suspension of the Constitution – unlike any other situation in the past – the target was clearly the Judiciary. The media was also a major target as it exposed the government in its independent reporting.
Cynics argue that the judiciarys stamp of approval on past dictators was justification enough to dismiss the higher judiciarys current role in protecting the Constitution and rule of Law.
However, the PCO and subversion of constitution on November 3, 2007 is different from the past in that compared to very few judges in previous instances, an unprecedented 59 out of nearly ninety-four (94) judges in the higher judiciary did not recognize the PCO or were not asked to take oath.
It is important that reasons behind the en masse rejection of the 2007-PCO are widely known.
General Musharraf had claimed that the Judiciary had been interfering in the Executive branch of the government in the war against terror. However, the courts did not have jurisdiction over the Army, while the Executive had all the authority – led by General Musharraf – to take remedial action, but had failed to act. This blame for failure in fighting the terrorists was passed on to the Judiciary, which in fact had no role in the matter.
With regard to interference in power of the Executive, Justice Khalil-ur-Rahman Ramday has challenged the government to cite cases and proofs of this alleged interference. No such proof or even a tenable argument, whatsoever, to back the rhetoric and propaganda of the government has been presented so far.
The latest coup was in reality a coup by the Army Chief Musharraf against an ineffective President Musharraf, with the Judiciary identified as a scapegoat. In fact the military struck a blow to a pillar of the state to sustain its rule and control.
While the government alleged that the Judiciary was “letting terrorists go, the judges (Nawaz Abbasi, Faqir Khokhar) who on suo moto notices directed the release of the Lal Masjid students and later ordered for the reopening of Lal Masjid, were in fact the first ones to be offered and given oath under the Musharraf PCO.
While exercise of suo moto jurisdiction by the Supreme Court Judges has been made into a big issue, it is a moot point that in case of the failure of the state to protect innocent people, people turned to the courts rather than the insensitive executive for justice. Remember that the Lal Masjid leaders were allowed to flourish under the nose of the intelligence agencies. In any case, the courts could only act on evidence received. If no real cases were put up against the Lal Masjid clerics, deliberately or not, what was expected of the Supreme Court?
The government has failed to show even a single example in which a “terrorist was released by the courts.
Another reason cited in reference to “letting terrorists go has to do with the “missing persons cases pursued by the courts. The courts said they would be satisfied if the persons were detained legally, backed by evidence, with due notification and trial in a court of law. The court repeatedly asked the government to inform it if the missing people were held by the military, to give plausible reasons if so and to try the persons under proper jurisdiction.
In a twist of deviousness, the government and intelligence agencies refused to admit they had custody of any of these missing persons and yet continued to release them a few at a time (including at least one person who died a few days later because of the torture he had endured).
The judiciary, which had only asked for putting up cases and evidence against the missing persons, had to continue hearing these cases as the government did not contest their detention. Did the government expect the Supreme Court to tell the litigants that they did not have the right to approach the courts for redress?
Consider the amendment inserted after November 3 in the Pakistan Army Act, 1952. It envisages trial before military courts of ordinary civilians whom the government considers to have acted prejudicially against the defence and security of Pakistan and charged, among others, under the Anti-terrorism Act, 1997, Prevention of Anti-National Activities Act, 1975, National Security Act, 1952 and other provisions of the Pakistan Penal Code. This amendment is applicable retrospectively, clear aimed to bring the missing persons under the legal net by showing them to have been tried by military courts. The government has already admitted before the Supreme Court in July last, to have convicted one, Imran Munir, under the Army Act although an ordinary civilian cannot legally be tried by a military court.
The fact remained that the government was complete inefficient itself and had brought no evidences against those detained.
Given this situation, the Judiciary had to ask questions from the police and civil administration as well as the Ministry of Defence when hearing cases of missing persons
Another allegation was that the Judiciary was interfering in administration and in the function of the state (the executive bureaucracy) to the extent that it paralyzed the working of the state. The question was: what remedy do the people have if the civil administration violates the law? What are the courts expected to do when a police chief is seen on camera directing his officers to mercilessly baton charge peaceful journalists and citizens? Judicial oversight to ensure adherence to constitution and civil rights is a well-established legal tradition.
While previous martial law regimes offered “intellectual justification for usurping power under compelling circumstances, the present condition provides no such compelling circumstances threats of external attack, chaos within, or non-functioning assemblies.
This time, at the end of the day, the Judiciary appeared to be moving towards what the people expected them to do, which was to stand by the Constitution, rule of Law and the principles on which this country was founded. If the judges had made a mistake before, their refusal to take the oath now has redeemed them. Although some judges had refused to take oath under previous martial laws, this time a majority of judges refused. In the words of retired Justice Rasheed A Razvi:
“If the Judiciary stands by principles, they should be commended for their present action rather than condemned for past weaknesses.
The biggest sacrifices have been made by those judges who had only recently been elevated to the High Court from the District Courts – like Justice Zafar Sherwani and Justice Salman Ansari, who are credited with changing the face of the district courts for the better – and of those who were to retire soon – like Justice Rehmat Hussain Jaffery of SHC, or Justice Rana Bhagwandas of Supreme Court who were due to retire on November 22, and December 13, 2007 respectively.
Chief Justice Sabihuddin Ahmed of Sind High Court, referring to Justice Rehmat Hussain Jaffery, said:
“This was particularly painful because we could not organize a befitting court reference for him that he richly deserved. He is one of our most principled, upright judges, and he did not take oath despite being offered a position in the Supreme Court.
Yet another sacrifice was made by Justice Iqbal Hameedur Rehman who was confirmed as a judge of Lahore High Court just three days before the proclamation of emergency and had a long career ahead. He had not even qualified for the pension benefits and cannot practice in High Court. He was in fact invited to take oath but he preferred to follow in the footsteps of his father, late Justice Hamoodur Rehman, rather than accept the PCO.
The above are just a few examples of uprightness shown by our judges who decided to forego all personal benefits. All for a principle of impartiality and upholding the rule of law.
Words do not suffice to describe what is now happening in the superior courts. Lahore High Court, which was once the pride of the Sub-continent, has been reduced to a clique of courtiers. The PCO Chief Justice has fallen out with the Attorney General of Pakistan because his nominees are denied opportunity to become judges of high court, and ironically he himself is being denied extension. The destruction of an institution could not get any worse; even General Zia did not do this.
By blaming and scrapping the Judiciary, the Musharraf government has tried to hide its own failures during the last eight years. Moreover, the cost of keeping one man in power is dangerously high as a nation without a Judiciary stands nowhere. Already, in the new “pliant courts, cases are being decided on the basis of allegiance to the government rather than the merits of the case.
And yet another fact, scary as it is, is that the judicial experience of current pliant PCO-judges of Sind High Court averages about a year and a half an unprecedented low by all accounts. These are the people who will decide all the high profile cases in our country. The upright judges who refused oath have an average experience of over 8 years and some even have judicial experience of over 17 or 18 years.
Credits: Yasir Hussain, Noman Qadir, Asad Jamal, Beena Sarwar & Zahid Ebrahim