Here’s the unmentionable truth: if today Pakistan had an independent judiciary, Asif Ali Zardari may not have been the president. The 107 legislators who voted for him in the NWFP assembly would have faced disqualification for breaking the sanctity of the ballot. Were the Supreme Court free, it would have taken notice and ordered a stay. What does the word ‘secret’ mean? If our honourable parliamentarians of the Frontier don’t know its meaning, then they don’t deserve to be sitting and making laws for the province. If our honourable judges of the superior courts don’t know the meaning, then they too don’t deserve to be handing down judgments. And if Chief Election Commissioner Justice (r) Qazi Muhammad Farooq was sovereign, he would never have rushed to judgment and announced Zardari’s victory disregarding the evidence before him.
When the lawmakers en masse become the lawbreakers, democracy becomes a joke. The NWFP lawmakers played dumb charades on the day they voted for a new president of Pakistan. Like excited school kids, they put up an act for the media and their PPP fellow legislators when they stood up to vote. Acting out their parts they let it be manifestly known to all who they were voting for. It was Asif Ali Zardari! Lining up like playful schoolchildren under the towering roof of the mock-colonial styled assembly, one after another held up his/her ballot paper to show to the TV cameras and the monitors of Asif Ali Zardari that they were dutifully voting for him before putting their papers in the ballot box. Exalting the pack was the proud chief minister of the Frontier. Young dashing Ameer Haider Khan Hoti treated the media and his PPP minders to a peep show. I bet you all must have exchanged high-fives after the peep show.
Chief Justice Tariq Pervez of Peshawar High Court was the presiding officer. Those inside the hall and the world at large saw almost all MPAs of ANP, PPP, JUI-F, PPP-(S) and independents showed their ballot papers to ANP leader and provincial information minister Mian Ifthikhar Hussain and PPP leader and provincial Health Minister Syed Zahir Ali Shah after marking their votes in AAZ’s favour. Both the provincial ministers were sitting on the left and right sides of the polling booth. After marking his or her ballot paper, each MPA showed them in whose favour he or she was casting the vote. The ministers were the two ‘angels’ recording the legislators’ deeds – one on the left and the other on the right.
According to press reports, Nargas Samin, an MPA from PPP-S, was “caught” by Chief Justice Tariq Parvez showing her ballot paper to Mian Ifthikhar. She was called to the dais and told to hand over her ballot paper to the honourable judge. “He put it in his pocket.” At this point, the polling halted. The judge went to the speaker’s chamber accompanied by polling agents, Barrister Javed Abbasi of the PML-N, Liaqat Shabab of PPP and Nighat Aurakzai of PML-Q.
When the judge returned to the floor, he again summoned Ms Samin to the dais and pulled out the ballot paper which he had earlier put in his pocket. A triumphant Nargas Samin then strutted to the ballot box and put her paper clearly marked in Zardari’s favour, earlier witnessed by everyone present, into the box. What did that signal? Oh, it’s okay for the remaining 106 voters to show they have voted for Zardari before polling their votes. “Presiding Officer Justice Tariq Pervez Khan directed all the MPAs to stop showing their ballot papers but the parliamentarians set aside his directives and kept on showing ballots till the end of the election,” say the media reports.
In a rare interview with the Quarterly Criterion which comes out of Islamabad and is published by S Iftikhar Murshed, Justice Khalil-ur-Rahman Ramday says that an independent judiciary draws its might from the people: “The courts of law are not equipped with tanks and guns and fighter planes. Their strength lies in the people and the public.” Well, if the people today were that strong, the sacked Supreme Court judge who restored Chief Justice Iftikhar Chaudhry last July would have been resuscitated by now.
But Asif Ali Zardari broke his promise to the people of Pakistan that he would restore Justice Chaudhry along with Justice Ramday and all others sent packing by Musharraf on November 3. Why? Tell me which democratic government likes to have an independent judiciary even if it claims to want one. I call it the ultimate hypocrisy. When coalition governments’ parliamentarians break the law, the government of the day hates the judiciary to interfere and take them to task. But if the people were to wrest the power away from the government and demand an independent judiciary, not even President Zardari, the man who “swept” the presidential polls and made some sort of a record, would have the power to resist. “I’ve always said that the county judge who summoned President Nixon or the county judge who summoned President Clinton was not made of steel,” says Justice Ramday. “He was also made of the same flesh and bones as I am. The difference however, was that this petty county judge in Washington knew that he was summoning the president of the United States of America…and he knew that he [president] would come. The reason was that both knew that the people of the country were standing behind that county judge, and the president despite all the power and might he enjoyed, dare not disregard the summons from the court.”
Who has the gumption to call President Zardari before him today? Or even question him? Or even entertain a case against the government of the day? Does a name come to your mind? As for the past, there have been judges who “showed strength of character,” says Justice Ramday, “but they have just fizzled out. People forgot about them. It was as if they never existed or as if they had never done anything commendable for the people, the nation or the constitution.”
The judiciary today looks the other way when the ruling party legislators in the NWFP assembly breach the constitution and later shamefacedly tell the media, “Oh, we were just joking!” while defending their illegal action. So what’s the future of the judiciary? Justice Ramday is asked by the Criterion. “There are lots of forces working on either side. This is the defining moment. Out of this melting pot you will either get a judiciary which will be the pride of the people or you will get a judiciary only in name.” The judge gives the example of Café Zumzum which he and his Gordon College buddies often frequented as students. The owner had a record player. “We were given the privilege of requesting songs that the owner would play [for us]… Will we get courts or a Zumzum café where only some privileged people’s requests are catered to?”
Law Minister Farooq Naek may have driven a wedge between the pre-November 3 judges, but for how long? The intensity to get them restored may have decreased but it will never die out. “It will come back one day or the other and when it comes back it may be with very disastrous consequences. One should not let that stage be reached,” warns Justice Ramday.
Put back the steel in the judiciary, I say. Attorney General Sardar (newly affixed) Latif Khosa and Law Minister Farooq Naek need to listen to their conscience and not sell their souls for petty political gains that can recklessly pull down their government in the months ahead.
The writer is a freelance journalist with over twenty years of experience in national and international reporting
Source: The News, 16/9/2008