About wrong and right

Daily: The Statesman
Date: 05.06.08

“What I want is men who will support me when I am in the wrong” said Lord Melbourne
(1779-1848) in reply to a politician who had said “I will support you as long as you are in the
right.”

It was the Chief Justice Munir who validated Ghulam Mohammad’s unlawful dismissal of
Khwaja Nazimuddin. That was the beginning of the story: coups became routine matter
followed by validation by the Supreme Court and indemnified by the pro-coup assemblies
formed under the umbrella of the coup-maker. The existence of the President General
Musharraf is the recent episode of the same story.

The former Prime Minister of Pakistan, Zulfiqar Ali Bhutto, managed to incorporate Article 6
into the Constitution of 1973 to safeguard democracy but he failed to foresee the
availability of the words like ‘supra-constitutional’ and ‘extra-constitutional’ that would be
accepted in the Supreme Court to justify and validate one coup and another. In a way, the
sanctity and applicability of Article 6 – which declares abrogation of Constitution an act of
high treason and to be dealt with death penalty – was preserved but a bypass was created.
Had there been a question of another supra- or extra-constitutional coup on 9 March 2007,
the response of the Chief Justice Chaudhry Iftikhar Hussain could have been different: he
might have validated it.

But this was not the case. March 9 actually created a situation in which the military as an
institution directly challenged the authority of another institution, the judiciary, by unlawfully
forcing Iftikhar Chaudhry to resign on whatever allegations. Retrospectively, had there
been no March 9, there would have been no anti-PCO verdict on 3 November 2007 issued
by the deposed bench of the Supreme Court headed by Iftikhar Chaudhry.

In the aftermath of the coup on 12 October 1999, the higher judiciary came in the line of fire
being exchanged between the politicians and the military – the Kargil crisis may be
considered the immediate reason for the politico-military confrontation. The judiciary
circumvented its conflict with the military and became a non-party in the issue by offering
the military a bypass of Article 6 under the pretext of supra-constitutional nature of the
situation. That was how it validated the PCO – it is called the PCO-I issued by General
Musharraf.

On 3 November 2007, the bench of the Supreme Court issued and circulated an order
nullifying any PCO – it is called the PCO-II issued by General Musharraf. In one of his
articles published in a renowned daily of Pakistan, Justice (retd) Bhagwan Das has given
several arguments to divulge the difference between the PCO-I and -II and the reasons for
accommodating the PCO-I and not the PCO-II by the judges of the Supreme Court. That
may be right. But as obvious, March 9 adversely disturbed the symbiotic relationship
between the higher judiciary and the military. In a way, the liaison was more than symbiotic:
one institution was reinforcing another for its own survival. The reinforcement aspect can
be deciphered in the post-November 3 events.

To the relief of the politicians and the people, Musharraf severed the symbiotic link between
his institution and the judiciary on 9 March 2007. Musharraf failed to fathom the popularity
graph of Iftikhar Chaudhry which the latter had attained due to delivering popular and just
decisions. Retrospectively, the higher judiciary avoided confrontation with the military on
the question of PCO-I and kept on focusing to provide relief to the common people. The
PCO-II was quintessentially against the judiciary and not against the politicians – as
Parliament was intact and functional – so the judiciary reacted to that. The reaction was
unprecedented and that was why the clairvoyants like Sheikh Rasheed could not predict
the outcome. The Musharraf camp remained confident that sooner rather than later the
lawyers’ movement would run out of enthusiasm. That confidence also kept the pro-
Musharraf politicians non-critical of the Musharraf policies ranging from killing of Akbar
Bugti to the raid on Jamia Hafsa. Similarly, the generals who sided with Musharraf since
1999, and of course were the beneficiary, observed silence until now.

In the ongoing lawyers’ movement, the politicians have found an opportunity of revival of
democratic institution – which is a good omen. On the other hand, the people have found a
chance to end the chain of the martial laws for ever. The situation could not have
snowballed into such a mass movement, had there been no March 11 or for that matter had
no picture come out in the public showing humiliation of the Chief Justice at the hands of
the security forces on his way to the Supreme Court to defend his position. That event
catapulted the situation and hastened the reaction against the state machinery. The sense
of justness of the people attained a full swing and the unchallenged throne of Musharraf
was made to shake to its core. That was how the lawyers’ movement got birth.

The other day, in his address to lawyers in Karachi, when the deposed Chief Justice Iftikhar
Chaudhry said, “We would not have seen this day had our judiciary not supported
unconstitutional steps taken by dictatorial regimes in the Zafar Ali Shah case and on other
occasions,” he also meant that by validating the PCOs in the past the judiciary sent signals
of its cowing into the military hegemony. That capitulation made him, Iftikhar Chaudhry,
experience March 9.

There are many who try to differentiate between restitution of Iftikhar Chaudhry and
restoration of independence of judiciary. In the given circumstances, if Iftikhar Chaudhry
had succumbed to March 9 pressures, there would have been no talk of independence of
judiciary today. That is why, the reinstatement of Iftikhar Chaudhry takes precedence over
independence of judiciary – through whatever means. If an opening has been found to
rectify the mistakes of the past, let the institutions be placed in their due Constitutional
order. Let the judiciary don independent attire. Let the judiciary repent of its past mistakes.
Let the nation proceed to democracy.

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