Crisis of the courts

“Ek rassi Allah ki, Aur ek rassi Tumhari. Allah ki rassi ko mazbooti sey thamna, Rahmatoon aur barkaton ka inam hai… Aur tumari rassi… Zabaan aur ankhen nikal deti ha… Lekkkin qad lamba ho jata.”

This small poem titled ‘Rope’ was found in the personal library of former prime minister Zulfikar Ali Bhutto, after he was hanged on April 4, 1979, in what is regarded in the country's political and judicial history as ‘judicial murder.’ After almost 44 years, the Supreme Court, while correcting the historic wrong committed by fellow judges in the past, endorsed that the former premier did not get a ‘fair trial’. But, the court remains ‘silent’ about those judges who committed such a grave mistake which ultimately took one of Pakistan’s most important politicians of world fame, who was also the founder of Pakistan’s only unanimous Constitution and nuclear programme, to the ‘gallows.’ A million-dollar question is, has the judiciary learnt any lesson from this trial and error?

The events that unfolded after the 1979 execution of the former premier revealed that the superior judiciary remains ‘under pressure’ and except for a few, most of them gave verdicts either under pressure or motivated by greed. Those who showed dissent or said “NO’ were shown the door. The judiciary didn’t even learn the lesson from Justice Munir’s ‘Nazriya-e-Zaroorat’ (Doctrine of Necessity) which ultimately led to the 1958 Martial Law and the break-up of Pakistan in 1971. The judiciary also failed to become wiser from Asma Jillani case declaring Martial Law as ‘illegal and unconstitutional, in the 70s, and continued to grant legitimacy to 1977 (Gen Zia ul Haq) and 1999 (Gen Pervez Musharraf) Martial Laws. Besides, from the judicial murder of Zulfikar Ali Bhutto, all their decisions from the dismissal of four elected governments to some other high profile cases all remain controversial.

This has been the dilemma of our Supreme Court (SC) of Pakistan for long. But, even in the worst cases like the Bhutto’s, there were few voices of dissent like Justice (retd) Dorab Patel, who was the most senior judge at that time, Justice M Haleem, and Justice Safdar Hussain Shah who went down in history as ‘honourable judges’ as compared to those who were called ‘compromised judges.’ Two other judges on the original bench Justice Qaiser Khan and Justice Waheedud Din, who according, to the former chief justice Naseem Hasan Shah were in favour of accepting Bhutto’s appeal and acquittal retired while the other had fallen ill respectively clearly showed that the majority were in favour of giving relief to Bhutto. Shah, who years later admitted that he was ‘under pressure’ narrated the ‘real story of Bhutto’s trial and execution,’ not only confessed in a TV interview but also in his book 'Memories and Reflections.’

Letter of seven judges

The present judicial crisis emerged after a letter written by the six judges of the Islamabad High Court to the Supreme Judicial Council and the chief justice of Pakistan regarding the alleged external interference, threats, bugging of judge’s houses, which is basically a narration of the kind of pressure the judges of the Supreme Court had been facing for years.

It’s a matter of serious concern and its sensitivity demands a high-level probe. It is good that the better sense prevailed and the Supreme Court of Pakistan took a suo motu and fixed the hearing for Wednesday, April 3.

The move was certainly a setback for the government and also to some extent the earlier consent of the SC itself as Prime Minister Shahbaz Sharif's meeting with Chief Justice Qazi Faiz Isa took place on the latter's request which was followed by the decision of the federal cabinet to constitute a one-man inquiry commission by former CJP Justice (retd) Tassadaq Hussain Jillani. The latter also took a sane decision by keeping himself out of the commission.

After Justice (retd) Jillani's refusal, which contained the reasons in his letter to the government, CJP Isa took suo-motu and constituted a seven-member bench. There was a lot of hue and cry among the legal fraternity over the Commission and lawyer's demanded full court in the case. The seven-member bench already held its first hearing in which CJP also hinted at the possibility of a full court when the bench will meet again later this month. One has to wait and see the outcome of this landmark case.

Perhaps, neither the government nor SC were expecting the kind of reaction that came from the legal fraternity against the move. The good thing about the present CJP is that he always makes decisions through full court meetings unlike his predecessor former CJP Umar Bandial. This suo motu will go into history as historic but will it be able to end the alleged interference, perhaps not?

Judges in the past mostly remained silent or sided with successive establishments. Being a student of Pakistan’s political, judicial and journalistic history I would not be surprised if all the concerns shown by the six judges in their ‘letter’ were swept under the carpet after the one-man judicial commission. Thus, the outcome of the government constituting a commission under the Commission of Inquiry Act, may not go beyond a certain limit. But, let’s wait and see whether SC take notice of the ongoing debate on the formation of the one-member Commission of former chief justice, Tassaduq Hussain Jillani.

Sadly, in our judicial history ‘honourable judges’ are always in the minority for different reasons. Former Justice (retd) Fakhruddin G Ebrahim, one of those judges who did not take oath under General Zia ul Haq’s Provisional Constitutional Order (PCO) of 1981, once narrated a story about how the former chief justice of respective high courts became acting governor after 1977 Martial Law. “Zia before imposition of July 5th, 1977 Martial Law sought consent from the Chief Justice of High Courts in case Martial Law was imposed and they were made Governor. The message was sent via the Attorney General of Pakistan. Surprisingly, all agreed.” No wonder why all this led to Bhutto’s trial and execution.

A similar kind of story was once narrated by former chief justice of Pakistan, Justice Saeeduzzaman Siddiqui and it was his personal experience. The events unfolded on October 12, 1999 when the military overthrew the elected government of former prime minister Nawaz Sharif. “I was at home on that day. In the night I tried to contact my fellow judges as I wanted to discuss with them the development and overthrow of an elected government. Would you believe that except for two Karachi Judges no one even attended my call?” Siddiqui said.

All this followed the Provisional Constitutional Order, PCO, during General Pervez Musharraf’s government. When PML-N leader Syed Zafar Ali Shah challenged the military takeover, the SC in 2001, not only declared the military coup constitutional under the Doctrine of Necessity but also allowed the government that if they desired they could even bring amendments except in a few clauses. This in itself showed how ‘compromised’ our judiciary had been.

In 2007, former CJP, Iftikhar Mohammad Choudhry, created history by refusing General Musharraf and said, 'No.' That historic NO led to a historic movement for the independence of the judiciary which continued even after Gen Musharraf's 2nd PCO on November 3rd, 2007, but the movement continued even when former elected president Asif Ali Zardari also backed out on his commitment to restore deposed judges. The crisis finally ended in 2009, when the PPP government reinstated judges.

In the post-2007 situation, the CJP who succeeded Justice Iftikhar Mohammad Chouhdry failed in protecting the independence of the judiciary and became too controversial, either due to 'unknown pressure' or for any other reasons.

Now the crisis that emerged as a result of the letter of six judges of the Islamabad High Court can also be taken as a window of opportunity, not only to restore the confidence of the judges and independence of the judiciary but also to pass on a message to those who have been blamed for uncalled interference.

The writer is a columnist and analyst for GEO, The News and Jang

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