Five years on

Do all the judges, on all the benches, in all the courts, in all the cases, agree on all the points of law?

I am writing this on the morning of 3 November, 2012. It is a crisp fall morning in Lahore, and nothing in the air or on the faces of people discloses anything about the significance of this date. However, five years ago, today, one of the most traumatic events of our checkered national history took place. And we must take this opportunity to assess the gains and losses that have resulted ever since.

A brief history first: 2007 was a tumultuous year for Pakistan. The year started with fanatic clerics and baton-carrying women gathering in the Lal-Masjid in Islamabad, and ended with the assassination of Shaheed Benazir Bhutto. However, on 9 March of 2007, General (retd) Musharraf deposed the Chief Justice of Pakistan (on grounds of corruption and misconduct), and moved a reference against him to the Supreme Judicial Council. This decision (which kicked-off of the Lawyers’ Movement) was challenged by the chief justice, and on 20 July, a 13-member bench of the Supreme Court restored the chief justice to his rightful place.

In this backdrop, a constitution challenge was made against General (retd) Musharaf’s bid for re-election to the office of the President, while still being the Army Chief. Apprehending a verdict against himself, in the early hours of 3 November, Musharraf, in his capacity as the Chief of the Army Staff, proclaimed ‘Emergency’, suspended the Constitution, and removed the judges of the superior courts from their office. Immediately, a seven-member bench of the Supreme Court, led by the honourable Chief Justice, issued an interim order against this action, directing the armed forces of Pakistan not to obey any illegal orders. However, the notorious 111 Brigade entered the Supreme Court building and detained the judges, putting them under house arrest.

This, for all intents and purposes, was the darkest hour in our constitutional history.

A new Provisional Constitutional Order (PCO) was introduced, which required judges to retake an oath of allegiance to Musharraf. Majority of the judges refused to do so, including 15 Supreme Court judges, 19 (out of 31) in Punjab, 23 (out of 27) in Sindh, 8 (out of 15) in Khyber Pakhtunkhwa, and in 6 (out of 11) in Balochistan. The next year and a half resulted in a divisive battle that concluded with the restoration of the judges on 16 March, 2009, and the removal of the PCO judges on 31 July, 2009.

And since then, the judiciary has enjoyed the most far-reaching and unfettered authority of any other court in the history of Pakistan. Returned to their rightful place after a tough and bloody battle (that claimed the lives of dozens of people), judges of the superior court were hailed as messiahs – as the last bastion of constitutionalism in our land.

This appeal of a restored judiciary stemmed from its promise of ‘independence’. While ‘independence’ is a rather elusive concept to define, there can perhaps be a consensus on the notion that ‘judicial independence’ necessarily entails the idea of being dauntless and unbiased – an aspiration that justice shall remain unadulterated by passion or prejudice. And on this scale, it becomes pertinent to ask today as to what extent has the restored judiciary been able to live up to its glorious promise.

Positives first: even the critics of the court would find it impossible to argue against the idea that, since restoration, our judiciary has been courageous and intrepid. In this regard, the court has not shied away from taking on entrenched political interests in cases such as the NICL scam, Harris Steel corruption, and the Hajj scandal. In fact, though the exercise of inquisitorial proceedings under Article 184(3), the court has gone a step further to seek out and shake the foundations of the political mafias that have plagued our nation for over six decades (as in the ephedrine case). These judgments, above all, have instilled a fear among the echelons of political power that they are not beyond the reach of law. In the same breadth, this assault has sent a clear message to the bureaucratic apparatus that supports the political elite, that they too shall be held accountable to law and be punished for their misdeeds as necessary.

Additionally, this court has done more than any of its predecessors in trying to reign in the khakis. While not fully succeeding, the court’s efforts in the missing persons cases, the killing of a boy by Rangers in Karachi, the Balochistan issue, and most emphatically the Asghar Khan case, are commendable. In many ways, the court here (out of necessity) has filled-in for the impotence of the executive and the parliament. And this courage, despite being less than complete, is commendable.

But away from these gains (which are not insubstantial), some judgments of the court have left it open to criticism of being biased. Perhaps the most blatant of these has been the Arsalan Iftikhar’s saga, any defense of which seems soporific. While the court has exercised ‘inquisitorial’ proceedings and praised the media (for bringing ‘important’ issues to the court’s notice) in several other cases, in the Arsalan Iftikhar judgment, the court took a virtual U-turn in criticising the media for reporting without proper due-diligence, and refraining from exercise of any inquisitorial power. Sadly, this leaves the court open to criticism for defending a ‘prodigal son’. People naturally wonder: would the court have done the same if the dispute related to Moonis Elahi or Musa Gilani?

In fact, the court has gone a step further. To curb criticism, Registrar of the Supreme Court recently asked the Islamabad Police to stop media channels from airing talk shows that criticize/defame the judiciary. And the Islamabad High Court has effectively banned the airing of such debate. This is a slippery slope. It is a cautionary tale to recall that on 3 November, 2007, along with the imposition of emergency, Musharraf blocked TV channels that were ‘creating discord’ against him and the army. While such intolerance can be expected from a dictator, it is unbecoming from the very institution sworn to defend the right to free speech.

And surprisingly, there is no voice of dissent against these judgments or actions by any member of the superior judiciary. In fact, since restoration, dissent has all but vanished from the courts (barring a few exceptions e.g., Justice Nasir-ul-Mulk in the Mukhtaran Mai case). It begs the question: do all the judges, on all the benches, in all the courts, in all the cases, agree on all the points of law? The answer, in all likelihood, is ‘no’. Dissent exists behind closed doors. However, somewhere along the line, it has been deemed that in the current national circumstances, institutional solidarity trumps the need for dissent. I’d be the first to admit that I cannot imagine the pressures of being a member of the superior judiciary, but from my idealistic and naïve vantage point, they cannot be stronger than the need for a jurisprudence of dissent.

These are troubling times. And the judiciary today stands in the gaze of history. Many (and measurable) advances have been made, over the past five years in turning a new leaf in our constitutional history. But let’s not kid ourselves: there is need for a lot more.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: [email protected]