Ideals and Expediency?

By Muneer A. Malik:
Retrieved: Dawn, June 27, 2007

In my first article about the current lawyers’ movement, I had countered sceptics convinced of its ultimate futility by reminding them that the longest journey starts with a single step.

Now, as the movement grows from strength to strength; as hundreds of thousands of people turn up to show their support from Abbottabad to Lahore, Peshawar to Chakwal; as an increasingly desperate regime seeks refuge behind the corps commanders, I have still not been approached by any intermediary seeking to broker a compromise.

To save everyone’s time, let me make the bar’s position absolutely clear. The demands of the bar are non-negotiable and brook no compromise. This is because of the inherent nature of this movement.

To begin with, what are the objectives of our movement? Firstly, it is about changing the mindsets of our people. Throughout our history, the masses have viewed the bureaucracy, the military and the judiciary as part of the same ruling elite, cooperating with each other to subjugate the people. The minds of the masses have been inoculated against the concept of true justice. We were taught obedience at the cost of our liberty and independence.

This mindset is a hangover from our colonial past. These institutions were created by the British as a means of controlling the civilian populace. They were manned by Englishmen from the same background taught to venerate the same ideal — the preservation of the Raj.

Judges and ICS officers were not meant to empower the masses and improve their lot, they were there to keep the peace so the British could continue, unhindered, with their commercial exploitation and empire building. Likewise, the army’s primary role was internal not external. Their job was to quell local rebellions that could threaten British dominance. Alas! This role remains the same.

Decentralisation and separation of powers were never on the agenda. When a few thousand Englishmen set out to establish total control over a land of three hundred million people, any localised pockets of power could have proved fatal. A division of powers between the different institutions of state would be suicidal.

Our fight is for a separation of powers, for constitutionalism, for the principle that all men are equal before the law and for the ideal that the pen is mightier than the sword.

Thus the DC ruled his district (with the willing cooperation of the local elite, the feudal lords) with a free hand and without any constraints. His basic job was to keep the people quiet and subservient to imperial dictates.

If populist leaders, like Muhammad Ali Jinnah, B.G. Tilak or M.K. Gandhi, became too noisy, he knew he could always call upon his willing brothers in the judiciary to convict them for sedition or banish them from the practice of law. If matters went further, the likes of General Dyer would bail him out by shooting a few hundred natives for the restoration of ‘peace’.

The supposed impartiality and independence of judges in the colonial era is a complete myth. Of course, they were neutral when deciding land disputes between two natives. But when the interests of the Raj were at stake, when the interests of the people collided with those of their colonial masters, they never let their government down. Unfortunately, our nation’s independence and the departure of the British did not bring their system of governance to an end. Rather, a ‘coloured’ ruling establishment quietly stepped into the shoes of their departing masters and adopted their practices and beliefs. After all, it was more civilised to be an Englishman, notwithstanding that you were not admitted to their clubs unless you served as a waiter.

As a result, concepts such as the rule of law or the independence of the judiciary never took root in the minds of our people. We were never convinced that the judiciary’s true function was to guard the rights of the people and to protect the masses from oppression.

The first aim of our struggle is to change those beliefs. We seek to convince the masses that the courts are not there only to adjudicate property disputes between rich landowners or the competing commercial interests of multinational corporations, but that a truly independent judiciary will allow the common man to realise his fundamental rights. That judges with security of tenure will be fearless enough to administer true justice. That such judges will protect them from the abusive exercise of power by the wadera, the ‘seth’ or the SHO.

We seek to inculcate the belief that laws are not meant to be jealously preserved in jurisprudential tomes but to be applied, by activist judges, for the protection of the common man, and that the rule of law is an idea worth fighting for. To do so, we have to change the mindset of our judges about their true duties and functions. This is our second aim. For too long they have functioned as if they were part of our military-bureaucracy, and now the plundering capitalist (the attempted sale of the Steel Mills being a case in point), establishment. They need to realise that they are no longer part of a foreign force seeking to forcibly impose its will upon the people. They need to end their alienation from the masses and align themselves with the wishes of the people.

Why is it that Justice M.R. Kayani considered it acceptable to contest elections and become president of the Civil Servants of Pakistan Association while he was sitting on the bench of the high court, particularly when the major portion of his duties involved the judicial review of the wrongful acts of civil servants? It was not because of any particular lack of integrity on his part. Rather, he was known as an outspoken and honest judge. It is simply the pernicious elitism that pervades our entire judiciary that leads them to ally themselves with the ruling classes rather than with the masses. Our judges can easily identify with the causes of senior government officials but not those of a ‘kissan’. That is exactly why I call for a Supreme Court of the People of Pakistan.

Why is it that high court and Supreme Court judges consider it perfectly acceptable to lunch in elitist clubs and exchange views with industrialists, government ministers and advisers, bureaucrats et al, but shy away from sharing a cup of tea with the labourer or political worker at a trade union function? Does this not distort their perception about the needs and aspirations of the people of Pakistan?

The visit of the governor of Sindh — fresh from his debriefing in London — to the Sindh High Court is illuminating. Eyebrows were raised when seven honourable judges examining the May 12 tragedy refused to meet him and he was told that there could be no discussion on that issue. Why should there have been even an iota of surprise?

The government of Sindh, and the party to which the governor belongs, had been directly implicated in the tragedy of May 12. I say that at the risk of my life and that of my children. Would there have been any astonishment if any judge refused to entertain a common litigant who wanted to have a cup of tea in the judge’s chamber and discuss the facts of his case? The commendable behaviour of the Sindh High Court judges was newsworthy because too often in the past our judges have fallen short of this standard of rectitude when it comes to the power elite.

The idea that judges interpret the law in splendid isolation strictly in accordance with recognised and time-tested legal doctrines is entirely fallacious. Our Supreme Court has repeatedly pointed out that the Constitution is an organic document and needs continuous reinterpretation in light of changing times and needs. So who will inform them about the changing needs of the hour? Must it be the generals, the industrialists and the bureaucrats?

Take the example of the reviled doctrine of necessity. Blatantly illegal and unconstitutional acts were repeatedly justified by our Supreme Court on the basis that they were necessary for survival of the nation. And who was the spokesman for the nation? The generals.

Why can’t the needs of the nation be determined by directly listening to the voice of the nation? Why must the doctrine of necessity always be employed in favour of the military-bureaucracy establishment? Can it never be used in the other direction — to force a general (even if he has invented a specious legal cover for his actions) to respect the legitimate desires and aspirations of the people?

I recall discussing this issue with the late Justice Dorab Patel. A splendidly honest man, he felt compelled, nevertheless, to defend his brethren. He justified previous judicial decisions based on expediency on the grounds that they were made by a few old men left alone in face of the entire army’s might. This movement seeks to reassure our judges that they are not alone. If they choose to do the right thing, the whole legal community and the entire nation will turn out in their support.

The learned Chief Justice is no charismatic politician. His speeches, on purely legal issues, do not enthral the nation. But when hundreds of thousands of people stand all day in Lahore’s scorching heat and brave all night Faisalabad’s thunderstorms waiting to catch a glimpse of him, they do so to salute the courage of the man. They do so to show their support for a judge who dares to say ‘no’.

Our aim is to instil that courage in every judge throughout the land. Our aim is to illuminate a path that leads beyond the Maulvi Tamizuddin, Dosso, Nusrat Bhutto and Zafar Ali Shah cases.

Our third objective is to restore civilian supremacy in Pakistan. We are no longer prepared to live under the barrel of the gun. Those guns and their wielders must return to their rightful positions; facing outwards at the frontiers of our land. The people will rule themselves. Of course, our elected politicians will make mistakes, both honest and dishonest, and there will be misrule. But the court of accountability must be 170 million Pakistanis and not nine corps commanders. Elected governments must complete their tenure and face up to their failures at the time of polling instead of being handed a convenient excuse by their forced ouster at the hands of the military.

Fourthly, our aim is to strengthen all the institutions of our state; the executive, the legislature, the judiciary as well as the media. Only by strengthening these pillars and strictly enforcing the limits on their separate powers in accordance with the Constitution can we protect ourselves from tyranny and secure the rule of law. Only then can we rid ourselves of the inequities of the past.

To achieve these goals, we welcome the support of every segment of civil society; the media as well as labour unions, NGOs as well as political parties. But our demands are non-negotiable. We will not sacrifice our principles at the altar of expediency. Any dialogue with the establishment can only begin after they take steps that concretely display their commitment to these principles.

Our history is replete with tragic compromises. We don’t need to go too far. The Zafar Ali Shah case was a compromise by the judiciary. Musharraf’s military takeover was legitimised in exchange for a promise that elections would be held and a civilian government installed within three years.

Five years have passed since those elections, but all power still rests with Musharraf and his corps commanders rather than with the prime minister and his cabinet. On March 9, 2007, while cabinet ministers hunkered under their beds, the ISI, MI and IB chiefs wreaked havoc.
The Seventeenth Amendment was a compromise by the politicians. Musharraf was allowed to continue as president despite his uniform in exchange for, essentially, a verbal promise that he would shed it in a year. Characteristically, he reneged and four years later he was donning the same uniform when he attempted to fire the Chief Justice. No amount of apology, no matter how sincere, will bring back lost times and opportunities.

For once in our history, people from every segment of civil society, judges and politicians alike, need to stand up for ideals and eschew the culture of deal-making. The struggle is not for tawdry offices and superficial power; it is about principles. If we can maintain our united commitment to these principles, we shall triumph and overwhelm all opposition. But if we fail to learn from history, we will be condemned to relive it.