THE ROAD TO AN INDEPENDENT JUDICIARY

(Originally published in “The Nation” on 30th March, 2009)

By Nauman Qaiser

"Forget about the restoration of judiciary to pre-November 2, 2007 position, for the judges who refused to bow down before a dictator have never, in the history of Pakistan, come back to hold their old positions” – these remarks by one of my colleagues were echoing in my ears, as I was being taken in a prison van to the nearest police station for challenging the ‘writ’ of the State on that fateful day of 15th March, 2009. At that time, I could not, even in my most pleasant dreams, imagine that with in next 24 hours, I would be witnessing the dawn of a new era – an era which would bring forth the defeat of dictatorial tendencies and a thumping victory for the democratic people of this country.

Outside, the “battle of Lahore had commenced near the Lahore High Court premises with hundreds of tear gas shells fired from all corners. Notwithstanding the brutality of the Punjab police, I could see the determination and tenacity of purpose in the eyes of the lawyers, political party activists, civil society members and students who had gathered there to record their protest against the present political dispensation and its propensity to go back on its solemn promises. My sixth sense was telling me that victory would be ours.

For the next six hours, before I was released from the police station, I could only hope and pray for the success of this historic movement, which has pinned new aspirations and hopes for the rank and file of this country. I was helpless, and at times considered myself really unlucky to have ended up in a police lock-up, whereas my friends were there on the streets of Lahore fighting a long-drawn battle. My thoughts were oscillating back and forth from being optimistic to utterly pessimistic about the fate of the battle of Lahore, as dramatic happenings started taking place outside, wherein the whole scenario had changed after Mian Nawaz Sharif, along with hundreds of thousands of supporters, made his way through all the obstacles and barricades into the roads of Lahore.

At the same time, the lawyers and other segments of the society at the GPO intersection also showed their resoluteness and firmness as they resisted the police for more than six-hours through heavy rounds of tear-gas shelling and baton charging. As the people’s power started overwhelming the state power, no one could now stop the well-deserved victory of the people of Pakistan, who have, for the last two years, left no stone unturned in striving for the rule of law, supremacy of constitution and independence of judiciary in the country.
The die has been cast there and then. The address of Prime Minister to the nation in the wee hours of 16th march, wherein he announced the restoration of judiciary to November 2, 2007 position, was a mere formality now. The proud Pakistani nation had won — a triumph, which they would cherish for a long time to come, and which comes only second to the momentous victory of 14 August, 1947.

As the nation celebrates the miraculous victory, one should not forget that the reinstatement of the higher judiciary to pre-November 3, 2007 position is only a stepping stone towards establishing rule of law and independent judiciary in the country; it is not an end in itself – it is only a means to and end. The ultimate objective must be to overhaul the whole judicial system in the country, which is reeling, for the past 60 years, in a cesspool of corruption, inefficiency and ineffectiveness. Moreover, the mindset of a common citizen who dreads the very thought of going to a court of law for adjudication, given the long-drawn procedures and trials involved, must be changed by taking concrete actions in this regard.

The first step, therefore, must be to bring substantial changes in the terms and conditions of the appointment and tenure of the judges. The appointment in the higher judiciary on merit is of great importance, if we want to achieve independence of judiciary in the country. The present tendency of appointing higher court judges on political basis promotes corruption, favouritism for a particular group or party, nepotism, inefficiency and ineffectiveness, and above all, lack of trust in the judicial system as a whole. The solution lies in implementing the Charter of Democracy in the letter and in spirit, wherein all the superior court appointments would take place through a judicial commission, which would make sure that only capable, honest, and deserving lawyers, and not political workers or ticket holders of some group or party, are given this responsibility.

Moreover, the terms and conditions of the tenure of the judges, like salary, perks and privileges, pension, gratuity etc need to be reviewed. One cannot expect justice from a judge who cannot even make his ends meet, and lives a miserable life devoid even of the basic necessities of life. In this regard, the recent increase in the salary and perks and privileges of the lower judiciary in Punjab is a welcome step towards achieving the goal of an independent judiciary, but this needs to be emulated in other provinces as well. Hazrat Ali (R.A) had rightly said that a judge needs to be well-paid and well-protected, so that the very thought of corruption and nepotism doesn’t come in his mind.

The responsibility on the shoulders of the re-instated Chief Justice, Mr Justice Iftikhar Muhammad Chaudhry is, therefore, enormous. The People of this country take him for a messiah who would rid them of all the problems currently afflicting the judicial system in particular, and socio-political and economic problems in general. But this must be remembered, that revamping the whole judicial system cannot be done by the Chief Justice alone; he would require a lot of support and collaboration of the political government in this regard. Therefore, a close working relationship between the Chief Justice of Pakistan and the government is the need of the hour, not only to bring forth substantial changes in the judicial system of the country, but also due to the fact that we cannot afford further destabilisation of the political system.

But this working relationship between two pillars of the state – executive and judiciary – will not be easy, given the trust deficit that exists between the two for the last two or so years. Both the Chief Justice and the government would need to exercise restrain and compromise, if they are serious in solving the problems of the masses, more so if they want to save the country from further chaos. Both pillars of the state can function efficiently within their own purview, without interfering in the working of the other, with the only exception of judicial review by the higher judiciary in the functions of the executive and legislature. But this is easily said than done. The rejuvenated judiciary will have to face a plethora of cases in which the federal government would be a party in one way or other, like NRO, Nizam-i-Adl ordinance in swat, Benazir murder case, judicial appointments on political basis, the fate of PCO judges, missing persons issue, drone attacks, and governor rule in Punjab etc. How the re-instated judiciary deals in these cases is yet to be seen.

One hopes and prays that the hard-earned victory by the lawyers, political parties, civil society activists and students does not prove to be short-lived. We cannot afford another bout of political instability, given the deteriorating law and order situation in the country propelled by the so-called “war on terror” we are made to fight against our own people. Therefore, I request the Chief Justice, Iftikhar Muhammad Chaudhry, the Prime Minister and the President to work in collaboration with each other, completely forgetting the bitter experiences they have had between themselves in the past. Once they do that, I have no doubts in my mind that a new Pakistan would really be born – a Pakistan which would have as its hallmark an independent judiciary, rule of law and supremacy of constitution.


The writer is a corporate lawyer based in Lahore.
E-mail:naumanqaiser@hotmail.com

The long march: a logical culmination of the lawyers' movement

(Originally published in “The Nation” on 17 Feb, 2009)

By Nauman Qaiser

Much to the chagrin of the PPP's government in the centre, which is adamant that, come what may, the superior judiciary in general and the deposed chief justice in particular cannot be restored to pre-November 3, 2007 position, the "black-coat revolution" is heading towards its logical culmination with an all-out show down planned for the next month.

Given this stubbornness of the federal government coupled with its propensity to turn back on its promises, it was about time that the lawyers' community, which has, for the past two years, left no stone unturned in striving for rule of law, supremacy of constitution, and independence of judiciary in the country, played its last card and decided to hold a long march towards Islamabad, accompanied by a sit-in or dharna in the Constitution Avenue till the restoration of deposed judiciary.

One prays and hopes that this long march would not be reminiscent of the previous one held in June, 2008, which turned ugly after the lawyers' leadership decided not to hold the sit-in in the Constitution Avenue. A lot of voices have thence being raised by the lawyers, civil society, students and intelligentsia about the commitment of Mr Ahsan with the lawyers' movement; some even going to the extent of asking him to renounce his affiliation with the PPP. To add fuel to the fire, Mr Ahsan's recent decision to field his own candidate for the president of the Lahore Bar Association against that of the pro-movement group has raised further doubts as to his allegiance and dedication towards the lawyers' cause.

Given all these apprehensions about the steadfastness and devotion of lawyers' leadership towards the cause of the judiciary, cynics are of the opinion that the long march is doomed to fail. But the question is how far these apprehensions are true, and if at all they are, how much impact they are going to have on the planned long march?

For one, no one can deny the fact that Aitzaz Ahsan has played a stupendous role in the on-going movement; it was him who brought the whole nation behind a chief justice who had been audacious enough to say 'No' to a dictator; it was him who successfully defended the deposed chief justice before the Supreme Judicial Council, and than before the full bench of Supreme Court of Pakistan; it was him who sacrificed his National Assembly seat after the legal fraternity decided to boycott the 2008 elections; it was him who drove continuously for 26 hours while the chief justice was travelling from Islamabad to Lahore to address a lawyers' convention; and it was actually him who had motivated the nation and hence given the momentum to the last long march, which was, despite the hiccups, a successful affair with over one million people thronging to Islamabad from all parts of the country.

Secondly, there was never a categorical decision to hold a sit-in during the previous long march. Mr Ahsan, with whom the ultimate decision lied as the president of the Supreme Court Bar Association, in fact, deliberately kept it vague as to whether a sit-in would be held or not till the restoration of the judiciary. To start with, Mr Ahsan, being a seasoned and far-sighted leader, was cognisant of the fact that it would be really difficult to hold a sit-in in the scorching heat of the month of June and that too without the proper arrangements of food and shelter for the participants. Moreover, there were strong apprehensions that, given the stubbornness of the then President Musharraf, the sit-in might force the military to intervene, which no patriot Pakistani would want.

These reservations and apprehensions may have prompted Mr Ahsan to announce that no sit-in would be held. But this decision would have most definitely boomeranged, as merely asking people to participate in a 30-40 hours long march and than come back without attaining the purpose would have most certainly made them less interested. Therefore, an ingenious vagueness was adopted by the lawyers in order to ascertain their strengths and weaknesses, and identify opportunities and threats, before they could go for a decisive call for a long march and a sit-in.

That was the first step towards the restoration of judiciary, and second and the final step, which might also prove to be the last nail in the coffin of the present political dispensation, would be the long march and the concomitant sit-in planned for March, 2009. This time proper arrangements for food and shelter of the participants of the sit-in are being made with the help of the Islamabad, and Rawalpindi Bar associations, which are getting a lot of help from the local chapters of the PML-N, Tehreek-i-Insaf and Jamaat-i-Islami. Furthermore, the military has shown its resolve to remain apolitical, and hence, in case of a prolonged sit-in, the fear of another martial law is no more there.

As far as Mr Ahsan's resolve to remain with PPP is concerned, suffice is to say that Mr Ahsan has been associated with this party, which has always strived hard for the rule of law and independence of judiciary in the country, for last four or so decades; and, therefore, cannot even think of parting ways with it only due to the fact that a usurper, who has a different point of view about the whole judiciary issue, along with his cronies, has taken over it.

Differences have already started creeping in as Naheed Khan, the confidant of Benazir Bhutto, and her husband Safdar Abbasi have, time and again, shown serious reservations about the leadership of Mr Zardari; Prime Minister Yousuf Raza Gilani has also started asserting himself against the dictates of the president; and above all, the jiyalaz, the life line of the party, are speaking openly against President Zardari due to his ill-advised policies, which have not only led to the present judicial turmoil, but have also brought the nation to the brink of political, economic and social destruction. Therefore, the time is not far, when PPP would be purged of treacherous and disloyal entities that have cast a bad name for it - Mr Aitzaz Ahsan does not have to leave this party.

Lastly, Mr Ahsan's decision to field his own candidate - against the pro-judiciary group led by Mr Hamid Khan - in the recently held Lahore Bar Association Election has bamboozled me. I hope, Mr Ahsan, if he happens to read this article, will try to justify this act of his. But in any case, his statement on the Election Day, that the decision of fielding his own candidate will not affect the lawyers' movement, should be taken on the face value.

Notwithstanding these little foibles that we may find in Mr Ahsan's personality, we must realise that this is not a time of finger-pointing and point scoring, as the nation prepares for a final confrontation with the incumbent government. It is a do-or-die situation for the whole nation, which should, forgetting the political differences it might have, support the lawyers' community in this noble cause, because it is ultimately the rank and file of the country that are going to benefit most from an independent judiciary. Once the people of this country appreciate the fact that if the judiciary is not restored now, it would never be restored, I am more than hundred percent sure that the planned long march and the sit-in would be able to achieve its purpose, despite the impediments that will most certainly be put in the way by the People's Party led government.

The writer is a corporate lawyer based in Lahore
E-mail: naumanqaiser@hotmail.com

Pakistan's Chief Justice Awarded Medal of Freedom

Honorable Iftikhar Muhammad Chaudhry inspired a lawyers' revolution against autocracy

On March 9, 2007, Pakistani Chief Justice Iftikhar Chaudhry said "no" to President Pervez Musharraf's request that he resign, and his defiance sparked a revolution of lawyers who refused to allow guns to drown out the voice of the law.

Chaudhry said, "I felt that I was only doing the duty of my conscience." But as the rule of man threatened to overwhelm the rule of law, his defiance guided Pakistan's march to justice. "It was the proclamation of a new manifesto for Pakistan, a declaration that the pursuit of justice cannot be subverted."

The military stormed the Supreme Court and placed the justices under house arrest, but lawyers intensified the pressure on the foundation of the government, eroding support for the dictator. The march to the rule of law toppled Musharraf, and on August 18, 2008, he entered his resignation from the presidency.

The Medal of Freedom is the highest honor given by the Harvard Law School Association, and has previously been awarded to the team which litigated Brown v. Board of Education and to South African President Nelson Mandela.

Chief Justice Chaudhry was officially recognized with the award in November 2007, during the period of his house arrest in Pakistan, but he was only recently able to come to the United States to receive the honor. Dean Kagan, in presenting the award, praised Chaudhry, stating that his contribution to the rule of law was inestimable. He accepted the award on behalf of all the lawyers, professionals and students who ran the movement for the rule of law in Pakistan.

Chief Justice Chaudhry acknowledged that there is still a long road ahead as the people fight to turn the wheels of history toward constitutional order in Pakistan. The entrenched politicians, who are highly organized, are being squeezed on the one side by militant insurgents and on the other by judicial insurgents. The answer, he said, is the rule of law, which is "inhospitable to both dictatorship and terror."

As the Pakistani judiciary moves toward the independence needed to protect a stable constitutional order, Chief Justice Chaudhry predicts the rule of law will be a boon to the developing nation's economy. "The struggle now is about separation of power, the role of the judiciary, rule of law and ridding the judiciary of enslavement to the executive." This battle is one that has been won by peaceful means before. "The Pakistani gun has a history of winning over Pakistani law. The law should win over the gun."

Source: Harvard Law Record (Harvard Law School’s Independent Newspaper)

Iftikhar receives prestigious freedom medal

NEW YORK: Deposed Chief Justice Iftikhar Mohammad Chaudhry has made a stirring appeal to 'America’s judicial, legal and academic fraternities' to help Pakistan’s judiciary discard the 'rule of man' and establish the rule of law.

'What we have is rule of man. What we need is rule of law. What we cannot live without is a judiciary that is immune to political interference,' said Justice Iftikhar at Harvard Law School in Cambridge (Massachusetts) on Wednesday.

He said: 'You must help Pakistan transform itself. Rule of law is Pakistan’s national consensus. And we must all side with Pakistan’s national consensus.'

Justice Iftikhar made the speech after he was awarded the prestigious medal of freedom, an honour bestowed on two other recipients, South African leader Nelson Mandela and Justice Thurgood Marshall of the US Supreme Court.

He told a large gathering of students and faculty members: 'I stand here for all those Pakistanis who have risen against despotism, dictatorship, brutality, tyranny and injustice. I also stand here for all those Pakistanis who stand for the principle that no one is above the law and all those Pakistanis who agree with Thomas Paine that ‘in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other’.'

He said that Pakistani autocrats, whether uniformed or otherwise, were trying to turn the wheels of history in the wrong direction.

'Our autocrats, whether uniformed or otherwise, while decreeing a democratic order are, at the same time, postponing the establishment of an independent judiciary to an ever more distant future. Such democracy is bound to fail; you can’t have a constitutional democracy without security of tenure for the judges,' he added.

In Pakistan, Justice Iftikhar said, both civilian as well as uniformed autocrats had been influencing judicial decision-making for the past six decades.

He pointed out that judicial reforms were a high stake venture and said every reform undertaking had potential losers and potential gainers. 'Potential losers, if our judiciary is to become truly independent, include civilian as well as uniformed politicians and our intelligence agencies.

Potential gainers: the general population at large and the economy. There are two problems: First, potential losers are also our principal decision-makers so they resist reforms. Second, potential losers are organised, potential gainers are not.'

Justice Iftikhar said that economies of countries which had 'rule of law' prospered as against dictatorships and autocracies.

'Remember, almost all of Fortune 500 companies are a product of economies where the law rules supreme. At the same time, the poorest of the poor continue to dwell in countries where men govern as opposed to law. A government of laws stimulates economic growth. A government of men impedes economic growth,' he said.

Tribute paid to Justice Iftikhar at NY bar ceremony

NEW YORK, Nov 18: Deposed Chief Justice Iftikhar Mohammad Chaudhry received Honorary Membership of the New York City Bar Association on Monday.

President of the association Patricia Hynes presented a framed citation to Justice Iftikhar in recognition of his efforts to uphold the rule of law.

“This is a very proud moment for our association,” Ms Hynes told Justice Iftikhar. “We are proud to be your colleagues,” she said.

A large gathering of lawyers and other guests gave him a standing ovation.Expressing his gratitude to members of the association, Justice Iftikhar said he had accepted the honour in the name of the people of Pakistan who have struggled against military dictatorship, tyranny and injustice.

“No democracy can survive without an independent judiciary. There can be no democracy without law. Lack of justice produces inequalities. Only independent judiciary can checkmate extremism”, he said.

“While parliament is sovereign, the courts too have a vital function,” he added.He paid tribute to American lawyers for supporting the lawyers’ movement in Pakistan in their struggle to restore independence of judiciary. Pakistani lawyers, especially the young, have been in the forefront of the struggle.Justice Iftikhar was introduced by US Judge Jed Rakoff who praised his courage in upholding the rule of law.

He recalled some of Justice Iftikhar’s important judgments, which went against the establishment, despite the pressures brought on him. He praised him for standing up to former president Pervez Musharraf so that the cause of justice was upheld, a stance that endeared him to the people.

Judge Rakoff narrated in detail the hardships Justice Iftikhar underwent after being ousted by Gen (retd) Musharraf and said he never gave up.Justice Iftikhar is the eighth person to be conferred honorary membership by the New York City Bar.

Prior recipients include former Chief Justice of the United States William Rehnquist and former Chief Justice of India P.N. Bhagwati. Former president of the Supreme Court Bar Association Aitzaz Ahsan presented to the New York City Bar Association a crest on behalf of Pakistani lawyers as an expression of gratitude to New York’s lawyers community for their support.

A thumping victory!

By Nauman Qaiser

‘Kurd’ is a brand name with considerable cachet. That’s why, the marketing gurus of the lawyers’ movement did not need to burn midnight oil to secure a thumping victory for Mr. Ali Ahmed Kurd as president of the Supreme Court Bar Association. Moreover, this victory was a forgone conclusion, given the support pro-movement lawyers enjoy among the legal fraternity on the one hand; and deteriorating standing of the pro-government lawyers led by the Attorney General, the law minister, and, to the chagrin of many Jiyalaz, Malik Qayyum, on the other hand. Even the use of government machinery by the law minister and his cahoots to buy the votes of the senior lawyers by bribing them different legal posts did not bear fruit.

This victory, which, in a way, is reminiscent of Feb 18 triumph of the democratic forces, is indeed a new beginning, a new awakening, a new impetus for the movement of independence of judiciary, rule of law and supremacy of constitution; a fresh hope for the millions of Pakistanis who are facing the brunt of the economic and energy crisis confronted by the country today; a light at the end of the tunnel for the relatives of thousands of “missing persons” who have been made a scapegoat in the ‘war on terror’; and an insidious blow to the present government’s efforts to sweep the Judiciary issue under the carpet.

What this victory has brought home is the fact that the on-going struggle for the restoration of the superior judiciary that was unceremoniously removed from their offices on November 3 last year has not died down, as portrayed by some pro-government elements. On the contrary, it has, after a temporary hiatus – due to scorching heat, summer holidays, and the month of Ramzan -- re-invigorated itself, and from now on, it is only going to get stronger and stronger in the able leadership of Mr. Ali Ahmed Kurd. The massive turn out by the lawyers, members of the civil society, workers of the political parties and the traders at the weekly protest rallies, especially the one taken out on November 3 this year in Rawalpindi-Islamabad, besides the locking of the subordinate courts by the lawyers of the Lahore Bar Association followed by the registration of FIRs against the lawyers show that the movement is here to stay.

One may not disagree with the modus operandi of the Lahore Bar lawyers, but the fact of the matter is that it was after exhausting all the legal and moral options at their disposal that the lawyers took recourse to such an extreme measure. When 60 judges of the superior judiciary are sacked with just one stroke of the pen; when the members of the legal community are beaten, tortured and incarcerated merely for exercising their right to freedom of expression; when “promises are not ayaats and ahadith, but are just mere political statements”; and when an elected government is bent on giving indemnity to an usurper, it is naive to expect that the people would stick to the legal niceties any more and let others trample on their rights with impunity.

In this backdrop, the victory of Mr. Kurd is a silver lining. A perfect mixture of passion and prudence – with a higher tinge of passion depicted by his fiery speeches, he has all the ingredients not only to counter these sophistries, broken promises and double talks of cunning politicians, but also to steer the ship of the on-going movement to a successful culmination. Moreover, he does not carry with himself the stigma of being associated with any pro-government political party, as did his predecessor Aaitaz Ahsan.

This is not to doubt latter’s commitment to the cause, but the fact remains that he is a member of the central executive of PPPP, and is bound to be influenced by the policies of his party. To the cynics, his decision not to stage the ‘dharna’ was one of the examples of the influence his party wields over him. Having said that, we, the Pakistanis, are proud to have finally produced a leader of Aaitaz Ahsan’s standing, who, despite his all-too-human foibles, continues to be the torch bearer in this struggle for the establishment of rule of law, supremacy of the constitution and independence of judiciary in the country.

Nevertheless, the road ahead for Mr. Kurd, Aaitaz, Hamid Khan and other leaders of the legal fraternity is strewn with a lot of difficulties. The present political dispensation is adamant in its stance that the deposed judges have to take a fresh oath to be ‘re-instated’ to their offices. In the process, the government has, as per the terms and the conditions of the notorious deal, given indemnity to the November 3 actions of Mr. Musharraf. Lawyers’ stance, on the other hand, says that all those actions were extra-constitutional, and hence the judges need not take a fresh oath; only an executive order would suffice – a view endorsed by the majority of the legal minds in the country and worldwide.

At the critical juncture of Pakistan’s history when we are almost on the verge of default, with foreign exchange reserves fast depleting, one fails to fathom the total vacuity of government’s thinking as far as the judicial crisis is concerned. The PPPP-led government should, instead of lingering the issue, solve it forthwith, so that all the energies could be focused on other potent issues afflicting the country. No investor is willing to invest in Pakistan, given the prevailing uncertainty with in the judicial system of Pakistan, besides the deteriorating law and order situation compounded by the on-going ‘war on terror’ in the western borders of Pakistan. Shortage of energy, especially electricity, with the poor citizens facing 10 to 12-hour load-shedding a day, has further dampened the confidence of the rank and file in the ability of the incumbent government to deliver. Moreover, the long-awaited aid from the ‘Friends of Pakistan’ may not be forthcoming, and as a last resort, the economic moguls of the country will have to resort to IMF.

In short, Pakistan is in an economic and financial predicament, which can be solved to a large extent by the re-instatement of the ‘deposed’ judiciary, thereby not only restoring the confidence of investors into the justice system of Pakistan, but also improving the Law and order situation in the country. One hopes that the present government comes of age, and sheds it intransigence; otherwise, it will have to suffer the fate of the previous government and its mentor, Mr. Musharraf, whose removal from the office of president was made possible solely due to efforts of the lawyers’ community.

Dogar “greeted” by lawyers

FAISALABAD, March 9: Lawyers led by District Bar Association president Nasir Ali Gorraya staged a demonstration at Kamalpur Interchange when Chief Justice Abdul Hameed Dogar, who took oath under the Nov 3 Provisional Constitution Order, en route Multan via Jhang arrived here from Islamabad on Saturday.

Sources said that the chief justice was on his on way to Jhang when some protesting lawyers gathered at Kamalpur Interchange after coming to know the top judge’s travelling plan.

The protesters were carrying banners and black flags. They resorted to sloganeering in favour of deposed Chief Justice of Pakistan Iftikhar Muhammad Chaudhry the moment Justice Dogar’s vehicle left the motorway to enter the city precincts.

The lawyers vowed to continue their struggle till the reinstatement of all superior courts judges deposed under the Nov 3 PCO and for the establishment of rule of law, supremacy of the Constitution and independence of the judiciary.

Sudden and unannounced protest by the lawyers left protocol and security officials stunned and they immediately changed the CJP’s route towards Chiniot instead of Jhang to avert any further ‘eventuality’.