By Faisal Siddiqi
Is it time to write the obituary of the lawyer’s movement? Or will this lawyer’s movement never be defeated because history and truth (and some say, God) is on our side?. The aforementioned responses are the two opposite responses given to the current impasse in the lawyer’s movement. The former response suffers from opportunistic scepticism and the latter response from irrational optimism. What is required is to avoid both these extreme positions. The lawyer’s movement urgently requires to build on it’s achievements, to learn from it’s past mistakes and to objectively analyze it’s future challenges in order to determine it’s goals and devise a realistic strategy to achieve these goals. The lawyer’s movement can neither go home in despair nor carry on with the same old script and strategy of their struggle.
What, has been and is, the principle objective of the lawyer’s movement? To restore, enhance and preserve the independence of the judiciary from both executive and legislative domination. The battle ground for this objective has been the restoration, enhancement and preservation of independent judges. In striving for this principle objective of the independence of the judiciary, the lawyer’s movement has also been the warrior brigade for the intrinsically linked objective of constitutional democracy in Pakistan. One doesnot want to sound arrogant or blow one’s own trumpet but in terms of the aforementioned objectives, the lawyer’s movement has been remarkably successful and there seems to be no rational reason for scepticism or for irrational bouts of despair and despondency.
What have been the principle achievements of the lawyer’s movement in this struggle for an independent judiciary? And what have been the achievements of the lawyer’s movement in the intrinsically linked struggle for constitutional democracy? In order to understand the specific goals, specific achievements and challenges of the lawyer’s movement, the lawyer’s movement has to be analyzed in five phases.
First Phase [March 9th, 2007, to July 20th, 2007] – Before March 9th, 2007, Military rulers have removed three Chief Justices of Pakistan i.e. Chief Justice Yaqub Ali , Chief Justice Anwarul Haq  and Chief Justice Saiduzzaman Siddiqui . None of these Chief Justice’s removed by a military dictator were restored. For the first time in the judicial history of Pakistan, a Chief Justice removed by a pseudo-constitutional military dictator was restored on July 20th, 2007. In this first phase, the lawyer’s movement not only contributed towards the restoration of an independent Chief Justice Iftikhar Chaudhry but more importantly, contributed towards the restoration of the independence of the majority of the judges of the High Courts, whose restored independence was symbolized by these High Court judges supporting Chief Justice Iftikhar Chaudhry by welcoming him at lawyers functions i.e. even before Chief Justice Iftikhar Chaudhry was restored on July 20th, 2007, and also contributed towards the restoration of the independence of the Supreme Court, whose restored independence was demonstrated by the Supreme Court’s judgment restoring Chief Justice Iftikhar Chaudhry on July 20th, 2007. In short, the lawyer’s movement infected the majority of the superior judiciary with the constitutional disease of independence. There are two striking aspects of the lawyer’s movement in this first phase. Firstly, the victory was complete, conclusive and beyond expectations. Secondly, Chief Justice Iftikhar Chaudhry was restored by a petition moved by the lawyer’s movement on behalf of Chief Justice Iftikhar Chaudhry. In other words, the lawyer’s movement was not dependent upon the government for restoration because the actual logistics, method or mechanics of the restoration of Chief Justice Iftikhar Chaudhry was in their hands in the form of a legal remedy before the Supreme Court. These aforementioned two striking aspects, I will argue below have been missing in the later phases of the lawyer’s movement. In the political sphere, the lawyer’s movement became the vanguard for the struggle for constitutional democracy and as a consequence, the catalyst for the weakening of military rule in Pakistan. While recognizing the irreplaceable and critical role of political parties, it is undeniable that the democratic revolution of 2007 was started and energized by the lawyer’s movement.
Second Phase [July 21st, 2007, to November 2nd, 2007] – After the restoration of Chief Justice Iftikhar Chaudhry, the primary objectives of the lawyer’s movement was to enhance and preserve the independence of the judiciary. The lawyer’s movement contributed towards the enhancement and preservation of the independence of the judiciary by keeping a vigilant watch on the performance of the superior judiciary as well as by testing the limits of judicial independence through public interest litigation. As a result, the performance of the High Courts and the Supreme Court in this second phase was exemplary e.g. the missing persons cases, the case regarding the correction of the electoral lists, the Nawaz Shariff and Shahbaz Shariff cases, the bail application in the treason case of Javed Hashmi, the presidential election case of General Pervez Musharraf, the suo-moto proceedings in the May 12th, 2007, case, the conviction of senior civil bureaucrats and police officials in the Chief Justice’s manhandling case etc. The critics have subjected this second phase to two main criticisms. Firstly, the critics from within the lawyer’s movement have argued that the superior courts gave a few illegal decisions or failed to fulfill certain constitutional obligations in this second phase. The answer to this criticism is simple. The structures and culture of a dependent judiciary cannot be reversed in a few months. It requires constant vigilance and constant struggle. Secondly, the critics have blamed the lawyer’s movement for creating a constitutional crisis by challenging General Pervez Musharraf presidential election in the Supreme Court. The problem with this argument is that it seems to be based on the premise that the Supreme Court should only selectively fulfill it’s constitutional obligations i.e. take no action against Generals but only take action against civilians. More importantly, failure in fulfilling it’s constitutional obligation in disqualifying a sitting general from contesting the presidential election would have irreparably eroded the public confidence in the superior judiciary and eroded the gains of the March 9th, 2007, struggle. In the political sphere, the lawyer’s movement continued it’s vanguard role for the struggle for constitutional democracy by being the main protagonist for the removal of the military uniform of General Pervez Musharraf. Again without taking anything away from the immense contribution of political parties, it is undeniable that the democratic battle for civilian and constitutional supremacy was fought by the lawyer’s movement in the Supreme Court through the presidential election case of General Pervez Musharraf.
Third Phase [November 3rd, 2007, to February 17th, 2008] – After the imposition of martial law on November 3rd, 2007, the primary objectives of the lawyer’s movement was to restore the deposed judges and to reverse the unconstitutional actions of November 3rd, 2007. In furtherance of these objectives, the contribution of the lawyer’s movement in this third phase was the enhancement and preservation of judicial independence through the enlargement of judicial dissent in the superior judiciary. Two historical events took place in this third phase. Firstly, for the first time in the judicial history of Pakistan, an extra-constitutional military takeover was suspended by a seven member bench of the Supreme Court of Pakistan. Secondly, in comparison to 1977 when one judge was removed under Martial Law, to 1981 when sixteen judges were removed under the P.C.O., 1981, and to 2000 when thirteen judges were removed under the P.C.O., 2000, there was a dramatic increase in judicial dissent under the P.C.O., 2007, because 43 judges of the High Courts and Supreme Court refused the oath under the P.C.O., 2007. In the political sphere, unlike 1958, 1969, 1977 and 1999, for the first time in our political history, this imposition of martial law was actually resisted by the people through public mobilization. The lawyer’s movement was at the forefront of the resistance against this martial law and for the furtherance of the democratic revolution of 2007-2008. The political consequences of this public resistance were obvious. Firstly, this was the shortest martial law in the history of Pakistan [i.e. it lasted for only 43 days]. Secondly, General Pervez Musharraf ended direct military rule by taking off his uniform and the democratic revolution entered a critical stage. But the critics argue that the lawyer’s movement failed because the deposed judges were not restored and all the unconstitutional actions of November 3rd, 2007, were not reversed. What these critics fail to recognize is that unlike the abovementioned first phase, the critical difference was that the actual logistics, method and mechanics of restoration of the deposed judges was not in the hands of the lawyer’s movement because the Supreme Court had been virtually disbanded and only the government in power could restore the deposed judges. In other words, only a de-jure transfer of power through elections to a favourable democratic government could have resulted in the restoration of the deposed judges. This is precisely why the lawyer’s movement was wrong in arguing for a boycott of the elections, which call for boycott also sadly resulted in the breakdown of the relationship between the lawyer’s movement and the PPP and ANP. But the greatest political achievement of the lawyer’s movement and the deposed judges was to put the issue of the restoration of the deposed judges and the reversal of the unconstitutional actions of the November 3rd, 2007, at the centre stage of the political map of Pakistan. In other words, the lawyer’s movement and the deposed judges became the moral conscience of the nation. This is the maximum the lawyer’s movement could have achieved in this third phase.
Fourth Phase [February 18th, 2008, to August 27th, 2008] – After the dawn of the democratic era on February 18th, 2008, the lawyer’s movement and struggle of the deposed judges entered a critical phase. On the judicial front, the lawyer’s movement and the deposed judges contributed towards the following remarkable and historic achievements. Firstly, in view of the Murreee-Bhurban declaration and the Islamabad declaration, the majoritarian parliamentarian parties made a public commitment that all the deposed judges will be restored to the November 2nd, 2007, position through a simple parliamentary resolution followed by an executive order. In short, the restoration of the deposed judges and the reversal of the unconstitutional actions of November 3rd, 2007, became the central political project of the PPP-PML(N) coalition government. Secondly, the detained deposed judges and lawyers were released. Thirdly, there was a political consensus that the November 3rd, 2007, actions were unconstitutional and for the first time in the history of Pakistan, the majoritarian parliamentarian parties refused to recognize the constitutional amendments made by a military dictator [i.e. unlike 1985 and 2002, when the constitutional amendments were initially accepted and later validated by parliament]. Fourthly, regardless of the complications caused by the recent re-appointment of around 18 deposed judges, it is important to recognize that this is the first time in the judicial history of Pakistan that judges removed by a military dictator have returned to their original judicial position. This is truly historic. In the political sphere, the last vestiges of dictatorial rule was surviving in the form of the wounded but politically alive, Pervez Musharraf. The completion of the democratic revolution required the removal of Pervez Musharraf. What people seem to forget that after February 18th, 2008, the only mass, public and country wide, demonstration held in Pakistan calling for the removal of Pervez Musharraf was the ‘long March’ of the lawyer’s movement because Pervez Musharraf both represented the repression of the deposed judges and the unconstitutional actions of November 3rd, 2007. When history is written, the ‘Long March’ will be considered as the last nail in the political coffin of Pervez Musharraf. By threatening to initiate the process of impeachment, the majoritarian political parties presided over the funeral proceedings of Pervez Musharraf. But the critics again argue that the lawyer’s movement failed because all the deposed judges were not restored and all the unconstitutional actions of November 3rd, 2007, were not reversed. What these critics again fail to recognize is that unlike the abovementioned first phase, the critical difference was that the actual logistics, method and mechanics of the restoration of the deposed judges was not in the hands of the lawyer’s movement and only the government in power could restore the deposed judges. All the lawyer’s movement could do is to make this issue as the central political project of the government in power, which they successfully achieved in doing.
Fifth Phase [August 28th, 2008, and on-going] – Although there is no rational reason to despair, it is also important to recognize that the restoration of all the deposed judges and reversal of the unconstitutional actions of November 3rd, 2007, has suffered a major blow. This political project of the restoration of all the deposed judges through reversal of the unconstitutional actions of November 3rd, 2007, was a project of the coalition government of PPP and PML(N), which government has now collapsed. Therefore, unlike the first phase, the central problem of the lawyer’s movement still remains that the actual logistics, method and mechanics of restoring these deposed judges is not in their hands and only the government in power can restore these deposed judges. More importantly, the nature of the obstacle in the way of the restoration of the deposed judges through the reversal of the unconstitutional actions of November 3rd, 2007, has fundamentally changed. What is the fundamental obstacle? In one sentence, it is the political insecurities of a rising and consolidating political government. To further elaborate, the PPP as a ruling political party recognizes the potential constitutional structural conflict between a consolidating executive and legislature and a emerging independent judiciary [remember the conflicts between Benazir Bhutto and Chief Justice Sajjad Ali Shah and between Nawaz Shariff and Chief Justice Sajjad Ali Shah]. Therefore, why not just destroy this independent power institution i.e. superior judiciary, and consequently, avoid any structural political conflicts. The dream/ideal political strategy of the PPP government to enhance and preserve a dependent judiciary is three folds. Firstly, by having a PCO Chief Justice of Pakistan, the immediate threat from the superior judiciary has been neutralized. Secondly, by increasing the number of judges of the Supreme Court and all the High Courts, they will pack the superior courts by appointing their jiyala’s or merit-less persons as superior court judges. Thirdly, by passing the judicial amendments in the constitutional package, they will constitutionally amputate the superior judiciary by concentrating and consolidating the power in the hands of the executive. It is precisely for these reasons that the lawyer’s movement has to rethink and re-invent itself. The lawyer’s movement is neither a militant nor a revolutionary group which can themselves restore the deposed judges by reversing the unconstitutional acts of November 3rd, 2007. Nor does the lawyer’s movement’s commitment to constitutional democracy allow them to seek the help of any un-democratic forces to solve these problems. For the lawyer’s movement, their dispute with the PPP government is a fundamental dispute but it is a dispute among family members of our democratic family, which dispute has to be resolved peaceful through agitation, persuasion and negotiation. We will agitate with our brother lawyer’s, nationally and internationally, with political parties, with civil society and with the public at large. All bar associations including international bar associations, a major chunk of the political parties, media and national and international public opinion is on our side. One of the main purposes of our agitation would be to persuade the PPP government and it’s parliamentarians to do the right thing by restoring the deposed judges or to suffer constant moral shamming by the lawyer’s, political parties, civil society, media, international public opinion and the public at large. But the lawyer’s movement also has to negotiate with the PPP government in order to solve these problems. Negotiations never implies giving up your principled stance, it is merely a democratic way to solve a problem.
In the end, let us not forget that the lawyer’s movement might not have the political power to challenge any government but we hold the key to the persistence of this judicial crisis. The key is the withholding of legitimacy on the part of the lawyer’s movement. This judicial crisis will persist unless the lawyer’s movement confers legitimacy on any solution proposed by the PPP government. Therefore, following the example of Chief Justice Iftikhar Chaudhry, our ability, courage and persistence to say ‘NO’ to any unconstitutional and incomplete resolution of this judicial crisis will determine the future of this judicial crisis, of an independent judiciary and the development of constitutional democracy in Pakistan
[This is the unedited verison as shared by Faisal Siddiqi, while the edited version was published in The News today]