Apr 272008

One of the major causes of the failure of democracy or the overthrow of civil governments in Pakistan is the absence of an independent judiciary in Pakistan. Therefore, Pakistan Peoples Party’s slain chairperson Benazir Bhutto and Pakistan Muslim League’s spared chief Mian Nawaz Sharif rightly agreed in their famous Charter of Democracy signed in London on May 15, 2006 to reform the judicial organ of the state on their return to power. When the two leaders signed the Charter of Democracy they did not realize that even before they or their heirs could embark upon the task of ‘independence of the judiciary’ they would be faced with another task of ‘restoration of the judiciary’ as a result of yet another unconstitutional act of Pakistan’s Fourth Military Ruler. General Pervez Musharraf’s act of November 3, 2007 was the natural outcome of what our judges, particularly the chief justices, had been doing ever since Justice Munir was appointed as chief justice of the Federal Court in 1954. They not only became toys in the hands of despots but also repeatedly violated the oaths of their offices purely for worldly gains. It is a historical fact that despite President Iskander Mirza’s imposition of martial law on October 7, 1958, General Ayub Khan did not stage his coup until the Federal Court had validated Mirza’s martial law. Within hours of the Federal Court’s judgement in Dosso’s case on October 27, 1958 Ayub seized power sending Mirza in exile. Conversely, Ayub would not have seized power if the Federal Court had not legitimised Mirza’s imposition of martial law. A successful crime gives birth to another crime. Therefore, General Yahya Khan forced General Ayub Khan to hand over power to him in March 1969. General Yahya Khan imposed martial law on March 25, 1969 and left corridors of power on December 21, 1971 only after East Pakistan had been dismembered. In other words, he would not have abdicated power if Pakistan had not been broken into two pieces. Our judges of the superior courts continued to support Yahya’s unlawful regime as long as he stayed in office. Once his rule came to an end and Zulfiqar Ali Bhutto rose to power, the judges declared Yahya as a usurper and his regime as an illegitimate regime. Contrarily, they would have never given such a heroic judgment in Asma Jilani’s case if General Yahya Khan had still been in power. Two successful military coups legitimised by our superior judiciary were bound to give birth to yet another military takeover that did happen on July 5, 2007. Once again, the Supreme Court of Pakistan not only justified the imposition of martial law but also gave General Ziaulhaq unbridled power to amend the Constitution unanimously approved by the elected representatives of Pakistan. As if that was not enough our judges also joined hands with General Ziaulhaq to hang Zulfiqar Ali Bhutto through a ‘judicial murder’ only to appease our foreign masters who wanted to keep the Muslim nation deprived of its sovereignty. Former chief justice Nasim Hasan Shah is on record for his public confession on a television channel that the judges were pressurised by General Ziaulhaq to give a verdict against Bhutto. General Ziaulhaq’s successful military coup and Bhutto’s execution to please the Americans, with the active connivance of the judges, paved way for yet another military coup, which was staged by General Pervez Musharraf on October 12, 1999. For the first time in the history of Pakistan, chief justice Saeeduzzaman Siddiqui and five other judges refused to take oath under the PCO. However, the majority of the judges were pleased not only to take oath under the PCO but they also willingly legitimised General Musharraf’s illegitimate rule giving him unlimited powers to amend the Constitution. Clearly, it was not only the usurpers but also their collaborators who were responsible for repeated military takeovers and overthrow of civil democratic governance in Pakistan. Benazir Bhutto and Nawaz Sharif rightly identified that recurrence of military takeovers in Pakistan could not be stopped until and unless the judiciary was made really independent in Pakistan. Therefore, both leaders gave special attention to the issue of the independence of the judiciary in the Charter of Democracy. Before they could put their words into practice the unwanted situation of March 9, 2007 hit Pakistan’s constitutional politics. What happened in Pakistan on that day would not have happened if the judges had not been doing what they had been doing during past five decades. It is evident that the generals had been increasing their demands from the judges with each military takeover. Therefore, it was natural for a military ruler to summon the chief justice and demand his resignation. Asif Ali Zardari is right in his assertion that the March 9 episode started because President Musharraf attempted to remove Chief Justice Iftikhar Muhammad Chaudhry. However, he failed to look at the reasons as to why the President wanted to remove the chief justice. Zardari is also right in protesting against the pressure of countdown being exerted over him to restore the judges within a deadline of thirty days. Nevertheless, it is he who prescribed this deadline by signing the Bhourban Declaration with Nawaz Sharif. Similarly, Zardari is also justified in saying that the judges failed to give him, and his workers, relief when they were perishing in prisons as a result of political victimization. Yet he agreed to restore the deposed judges within thirty days of the formation of the federal government. To say the least, whatever Asif Zardari said on the judges’ issue on April 22 was unnecessary and it could have been easily avoided. These statements are against his new image of being a mature statesman rather than a self-centred politician. Whosoever advised him to make such statements certainly lacked political sagacity and worldly wisdom. The best way to come out of the situation is to avoid making any controversial statements and just to stick to the promise made in the Bhourban Declaration. Federal Law Minister Farooq H Naek, who heads the cabinet committee for the restoration of the judges, has already announced on April 25 that all differences on the issue have since been resolved between PPP and PMLN. According to him, Asif Zardari and Nawaz Sharif will soon meet to approve the modalities finalized by the committee. Naek’s statement makes it clear that despite his party’s reservations, Asif Ali Zardari is sincere in implementing the Bhourban Accord and to restore the judges even without caring as to who makes political fortunes out of the issue. Zardari’s main concern seems to be as to what would happen in case the parliament approves a resolution or the federal government issues an executive order to restore the judges. He appears to be under an apprehension that as soon as an executive order is issued, Chief Justice Dogar and his colleagues may suspend the executive order or they may ask for assistance from the President or the Chief of Army Staff in terms of article 190 of the Constitution. Such apprehension should not discourage the PPP co-chairman from fulfilling his commitments. The whole nation, including the President and the COAS, has been suffering because of the judicial crisis for the past over one year. Therefore, the chances are that once an executive order, with or without the promised parliamentary resolution, is issued all quarters will try to bring this crisis to an amicable end. However, if the good sense does not prevail upon the powers to be, the federal government should leave this matter to the Supreme Court to decide it for itself. After all it is the judges and their predecessors who are responsible for bringing the things to such a point where this untoward situation did rock the country. After issuing the executive order, the coalition partners should concentrate their energies on addressing the peoples’ immediate problems and their mediate constitutional goals to frustrate the designs of the Fifth Military Ruler of Pakistan. dr.chishti@hotmail.com

Source: The Frontier Post, 27/4/2008

 Posted by at 8:23 pm

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