Historical Significance of the Movement for Independence of Judiciary

Historical Significance of the Movement for Independence of Judiciary

Dr. M. Ashraf Adeel


Pakistani lawyers have slowly but surely filled the leadership vacuum in the country. They are educated and modern middle class men and women who have decided to stand up, look the dictators in the eye, and say ‘no’! The constitutional rights of the people, they have asserted, will be compromised no more. As a result the country is up in an unprecedented collective resolve under a new form of leadership. At no point in Pakistan’s history, such collective middle class leadership has been provided to the people for such a noble cause. The movement is completely focused on the goal of rehabilitating the independence of judiciary in Pakistan which, in simple terms, means rehabilitation of the constitutional rights of all citizens, regardless of their social and economic status or religious creed and race. It is this focus which makes the movement noble and revolutionary. Luckily for Pakistan, the leadership of the movement is not in the hands of a single individual but the Bar Councils of the country and their membership. Reference against the Chief justice of Pakistan, Justice Iftikhar Mohammad Chaudhry , has functioned as the catalyst for initiating the movement but he neither started the movement nor does he lead it. The movement is being led by the collective will and conscience of the legal fraternity in the country. This makes the movement unique in addition to being noble and revolutionary.
The question, therefore, is: What is the significance of this movement in the context of Pakistani society, its history and its future? The answer, in a nutshell, is that this movement
1. can restore our self-respect as a society;
2. it can redefine our history, and
3. it can save our future as a nation.
Let me elaborate. A nation which is made to fail time and again to govern itself under rule of law loses confidence in its own abilities and slowly starts viewing itself, sub-consciously, as immature and morally incompetent somehow. The rest of the world reinforces this feeling by refusing to accord fullest respect to such a nation. As a result people become quite pessimistic and their creative power and moral energy do not get fully channelized into national construction and development. Absence of rule of law leads to demolition of merit system as well and, through collective loss of hope, the nation starts lagging behind other comparable societies. This further accentuates its sense of paralysis and deeply damages its self-respect. No amount of demagoguery on the part of unconstitutional rulers can save a nation from this deep collective psychological damage. That is one basic reason dictatorships are considered so destructive. Since our nation has been subjected to this trauma time and again, its self-confidence has been eroded immeasurably. The current movement for restoration of people’s right to constitutional governance, if successful, will restore our self-respect as a nation because, this time around, people themselves will have led for their own cause and achieved success. It will establish in people’s collective consciousness that they can lead their society and decide its shape and destiny. In a way, the success of the current movement will overhaul our national character and self-image. It will also enhance our global image as nation irrevocably committed to rule of law. (That is one reason all segments of the society, including the establishment and vested interests supporting it, need to do some deep rethinking before positioning themselves in relation to this movement).
Many have said that this movement has brought Pakistan to a defining moment in its history. One way this claim can be interpreted is that the current struggle of the lawyers in the country is going to give a sense of direction to our national life in history. Pakistan movement originated as a movement for protecting the rights of a minority from the overwhelming strength of a presumably insensitive majority. This has been the central justificatory principle for seeking a separate homeland for the Muslims in the sub-continent. Therefore, in one basic sense Pakistan movement was a movement for the rights of the people---a minority group. If that happens to be a correct idea then Pakistan has been derailed from its historical track every time it has been subjected to unconstitutional governance in the form of military dictatorships. Dictatorships have violated the sacred principle that motivated the movement for Pakistan. The ongoing lawyers’ movement for the restoration of constitutional governance is, therefore, a struggle for recapturing the true spirit of Pakistan movement. Its success can redefine our history for us by restoring the original direction of Pakistan’s national life. It will make us true to ourselves as a nation by structuring our governance on the principle of protection of people’s rights at all costs. (It must be added that, by the same logic, violating the rights of minorities in today’s Pakistan would also amount to violating the spirit of Pakistan movement.)
Success of the ongoing movement for judicial independence can also ensure a dignified future for Pakistani nation by not only guaranteeing civil rights of the citizenry, particularly their right to govern themselves through their chosen representatives, but also by establishing confidence of the people in middle class leadership. This later factor may pave the way for emergence of new political arrangements in the country and may bring both elitism and extremism into check. Obviously middle class in the country is neither elite nor extremist. If its leadership is established, the country may be saved from swinging towards extremism. The United States and the rest of the Western world should take a cue. If dictatorship continues in Pakistan, the country stands every danger of swinging towards an extremist dispensation. However, if the current movement succeeds, the chances of such a swing will be considerably reduced, and, perhaps, eliminated.
Once an environment of constitutional governance is established, people will flourish through actualizing their potential freely in a fair setting. Nations are not built in a day but such fair and free environment can definitely set the ball rolling for our better future. Pakistanis are a talented and hardworking people. Our only and greatest misfortune have been the power brokers of our country who have always sold us out for perpetuation of their own power or for a miserly pittance:
Qaumay frokhtand o cheh arzaan frokhtand
(They sold the nation and they sold it mighty cheap).
Political parties in the country should also learn some lessons from the current situation. What they failed to do as political parties, a section of middle class professionals has rendered possible by creating a socially and politically rich movement. Therefore, in the next elections, they should look to middle class professionals for issuing party tickets for assemblies. They need to come out of their cocoons and start seeing the realities on the ground. Their policies ---elitist, opportunistic, or obscurantist---have really alienated the masses.
It may be added that the very emergence of the current movement in Pakistan at this juncture of its history is a manifestation of people’s will to take matters in their own hands and make a last-ditch effort to protect themselves from the machinations of the established brokers of power in the country. Therefore, the chances of failure for this movement are minimal. So far, the establishment has failed to tire out the will of the lawyers and the people of the country who support the movement. The establishment has failed to suppress the collective spirit of protest even by resorting to a massacre through an ally in Karachi. Nobody dare say that the Karachi massacre has cowed down the people and they won’t be on the streets next time the call comes. Overall the establishment has already placed itself in a huge dilemma: every strong arm tactic it has used has backfired. The strategy to prolong the crisis and tire out the legal fraternity has also failed (and does not have the potential to outwit the lawyers in the days to come). Therefore, the official pundits are at a loss as to how to defeat this movement. Let us remind them that such movements, which emerge from the hearts and souls of a people, cannot be defeated. Such movements keep surging like a river in a state of flood. You cannot stop the flow by either badmouthing it or kicking it or by hatching conspiracies against it. The current must flow on and must reach its destination. The best strategy in dealing with such peoples’ movements is to yield to their noble ideals. Otherwise the tide of history wipes you out. Nobody is an automatic darling of the forces of history. You can either work with them or self-destruct by going against them.
Finally, the lawyers and the people are showing great patience while working this historic movement to its logical conclusion. They have proven by now that violence and conspiracies cannot defeat them. Extra-constitutional tactics of the establishment will continue to backfire as long as the lawyers and the people remain united and focused. The government will only dig a deeper ditch for itself by resorting to extra-constitutional moves. However, one hopes that it will refrain from proving the dictum that reason takes a rather early leave of a scared dictatorship.
M. Ashraf Adeel
Department of Philosophy
Kutztown University of PennsylvaniaUSA

This Assault on Free Press

Dr. M. Ashraf Adeel

Within one week the Musharraf Government has mounted assaults on two basic institutions of constitutional and transparent governance, judiciary and free press. On 9th of March, General Musharraf made the chief justice of Pakistan non-functional. On March 16th , brute police force was let loose on the office of the largest media network of the country to make Geo TV and the News International office in Islamabad “non-functional”. On 13th March, the chief Justice of Pakistan and his courageous wife were roughed up when they just wanted to walk to the Supreme Court. (Who can dare walk against the will of the mighty and the powerful in our country!?) On 16th March, the police roughed up the valiant journalists of Geo TV and the News International simply for doing their professional duty. The higher-ups of police and administration watched over the manhandling of the chief justice and his family as well as that of the GEO staff. On both occasions, many of the higher-ups were reported to be on the scene and messages were being sent out on walkie-talkies. There is not a shred of doubt, therefore, that both times the government planned to intimidate. The idea obviously is to suppress freedom---both of the judiciary and the press. The powers-that-be know that an independent judiciary is the only genuine threat to the tyrannical powers of their establishment, and, they also know, that a free press is the most powerful ally of a judiciary for protecting the civil and human rights of the masses. Assault on the freedom of press through attacking GEO TV Offices, therefore, is fraught with deep implications for the civil society and its rights in Pakistan.

The struggle for civil rights in all societies has been historically linked with freedom of expression and its institutional embodiment, i.e., free press. The simple reason for this linkage has been that free press is the instrument of public conscience inasmuch as it brings violations of civil rights of citizens to the notice of the citizenry. A society without free press cannot actually develop an effective public conscience. It is not for nothing that the freedom of expression is considered by many as the first right of a citizen. It is through the exercise of this first right that other rights of the citizens can be protected and ensured. The free press stands on the foundation of this first right. A tyrannical and ignorant government, therefore, tends to target free press in order to achieve two objectives: stopping the emergence of a public conscience and dehumanizing the citizen through snatching his/her first or foundational right. Let us all be reminded, therefore, that the assault on the freedom of press is an assault on our humanity.
It must be added that those who ordered this assault on the freedom of press must have acted out of ignorance alone. Otherwise, they would have seen that, in the process of dehumanizing members of society, the instruments of tyrannical power themselves get dehumanized by losing their moral conscience. Men without moral conscience are probably worse off compared to citizens without civil rights. Therefore, people at the helm of affairs need to grasp the fundamental truths of civilized life. Power and wealth are not the only things that matter in a person’s life. A person, as Plato would say, must do his/her utmost to leave an honorable legacy or name for his progeny. To be sure you cannot do so by destroying your own moral conscience. This is a way of dishonoring yourself whose consequences can never escape the notice of history and society. Let us all, therefore, know our limits and not transgress into areas where we can get our fingers burnt. Let us not try to snatch people’s right to humanity, that is, their right to free speech.

Another implication of this attack on the freedom of press is that powers-that-be have not yet grasped the true meaning of the national outrage over the assault on the office of the chief justice. The nation is outraged because they want their self-respect restored. That basically means restoration of the civil and human rights of all citizens through a judiciary that cannot be coerced by the executive branch of the government. The free press in the country only highlights this deep-seated desire of the people behind their current outrage. Now, as history has shown time and again, there is no power on earth which can take away this deep-seated desire from a people. It is human nature. Our people are not any different in this regard. Trying to suppress their natural instinct for freedoms and rights can, perhaps, delay democratic and constitutional governance but it can never stop it. The costs for trying to cause such a delay, however, are generally enormous for those who are on the side of oppression. One of the greatest modern philosophers---Hegel---said that the march of history is in fact an inexorable movement towards greater and greater liberty for man. Therefore, the ‘powerful’ in the country need to stop trying to choke the national outrage by choking the free press. Their’s is a self-destructive approach.

The crux of the right to free expression actually lies in seeing that disagreements are a natural part of human societies. People can come to form different perceptions and opinions on the same issues. When that happens, it does not serve the cause of truth to suppress differences. Indeed, it is through sharp but civilized differences of opinion that progress in scientific thinking becomes possible in all areas of knowledge and concern. Politics is particularly amenable to such progress through civilized pursuit of difference of opinion. Socio-political institutions and social thought itself progress only in an atmosphere of free disagreement between different stake holders. Societies which try to suppress such free disagreement (in the name of either religion or liberalism) end up stultifying their own growth. Free press in a country, therefore, provides the critical space that a society needs for such disagreements to exist for social growth.

Being able to handle and allow difference of opinion is also related with the level of a nation's or an individual's moral and psychological maturity. A society which cannot allow and tolerate multiple perspectives on important issues in its life, ends up being socially and intellectually starved. Such a society slowly yields to violence and its ability to sustain itself in competition to other societies gets severely damaged. A free press is what some political scientists have called a marketplace of ideas; and multiple ideas in the marketplace create intellectual and spiritual sustenance for a society. It is not surprising, therefore, that all efforts to suppress freedom of press in modern history have been squarely condemned by intellectuals as well as the masses and have generally done more harm than good to their perpetrators.

The ongoing struggle in the country for the protection of judicial independence is of critical significance for guaranteeing civil rights to our current and future generations. It is a struggle which will either ensure intergenerational dignity and rights for us or, in case of failure, we’ll be forced to crawl in dust by many more tyrants. A free press is a natural ally in such a struggle. However, the press cannot be blamed for inciting people insofar as it brings the truth to them. An oppressive regime tends to shift the blame of its oppressive policies to the free working of the press. Their thinking is that it is the press which is responsible for inciting the struggle for civil and human rights. That thinking is completely fallacious, however. If people were not already suppressed and if their civil rights were already in place, no free press would ever succeed in inciting them. The collective conscience in Pakistan has revolted against the marginalization of the rights of the people by the powerful in the country. People want their rights to be restored through an independent judiciary. The press has not created the conditions which have systematically marginalized the rights of the people or the people themselves from the power equation in the country. Some ‘forces’ have been violating the constitutional rights of the people over and over again and they are the ones responsible for creating the conditions for people to start this struggle. At this stage of the game, and in this age of information revolution, there is nothing the government can do, through intimidating the press, to undo the conditions that have led to the start of the ongoing struggle. Free press should not be consciously or unconsciously made into a scapegoat. They are simply doing their professional duty in reporting the facts, and, the current information revolution has ensured that facts would be reported by one mean or another, no matter what. Therefore, the government should realize its limitations and stop trying to send free press on “forced leave”. They have done enough damage by sending the honorable chief justice of Pakistan on “forced leave”. Nobody believes them any longer when they claim to exercise objectivity in the matter.


Dr. M. Ashraf Adeel
Department of Philosophy
Kutztown University of Pennsylvania
USA

Allow the Chief Justice Walk in Dignity

Dr. M. Ashraf Adeel

“Self-destructive instinct” of the powerful in Pakistan has moved again, this time against the judiciary in the country. The all-powerful General has declared the Chief Justice of Pakistan, Justice Iftikhar Mohammad Chaudhry, non-functional and has detained him and his family incommunicado in their Islamabad residence. Today the police roughed up the Chief Justice of Pakistan and his family in order to stop him from walking to the Supreme Court. He was not allowed to exercise his free will in this matter. It was for such occasions, perhaps, that Faiz Ahmad Faiz had said:

Nisaar mein tiry galiyon kay aay watan kih Jahaan

Chali hay rasm kih koee na sur uthaa kay challay.

(O beloved homeland! My life be sacrificed on your streets where

They have initiated the custom of not allowing anyone to walk in dignity)

They forced the Chief Justice into a vehicle to present him to a Supreme Judicial Council, SJC, comprised of judges against whom there are pending references before the same so-far non-operational SJC. The Council is led by a Judge who has already been sworn in as the acting Chief Justice and would become regular Chief Justice if the non-functional chief justice is declared guilty. This obvious conflict of interest has forced Justice Chaudhry to express his lack of confidence in the SJC and ask for an open trial.

The whole world is closely watching these events and the prestige of the country and its people is hanging in the balance. Everybody is wondering, one last time, whether or not the people of the country and its genuine leadership at all levels have the ability to govern in a legal and constitutional way. It should go without saying that independence of judiciary, with concomitant ability to deliver justice to all concerned, is the ultimate test of constitutional governance. If your courts are not independent and cannot deliver justice, then you are doomed as a society, both internally and externally in terms of your image. Three famous instances come to mind in this regard.

1: When London was being bombed to ground by Hitler’s Air Force, a journalist asked Churchill about the British chances in the war. Churchill’s response was in the form of a query: “Are our courts still delivering justice to the people?” When the journalist said “yes”, Churchill assured him that Britain will survive.

2: When Napoleon attacked Egypt in 1800---the first onslaught of the colonial West on the Muslim World in modern times--- the French showcased a technological exhibition in Cairo. The Muslim historian Abu Younis was not impressed. But when an Egyptian Muslim killed one of Napoleon’s generals by infiltrating their camp and the French court subsequently gave a fair trial to the accused, Abu Younis was impressed. He then realized why Egypt had fallen to the French: The standards of justice in Egypt had gone down and were no match to the French court.

3: When Ottoman Sultan Murad chopped off an architect’s hand, the Qadhi in the city ordered the Sultan to be presented in the court of law and handed out equivalent punishment. There was not a murmur in the armies of the Sultan. He accepted being treated like an ordinary criminal as well as the punishment. Only after free and un-coerced forgiveness from the architect, the Sultan was let go. In Iqbal’s famous words, in the eye’s of justice, “the blood of the king is not superior in color than that of the architect.”

It is not for nothing, therefore, that Ibn Khaldun, the founding father of the science of sociology, has argued that survival of a state fundamentally depends on two things: a cementing ideology and dispensation of justice. But without justice, even a feeling of cultural solidarity cannot save a dynasty or a state.

In the chilling circumstances of the ruination of the office of the Chief Justice of the country, there is no alternative but to ask what does the establishment, the people, the political parties, and the civil society leadership want in Pakistan? Apparently, the establishment believes that turning all institutions into rubber stamp institutions is the only way for it to govern in this day and age. This mindset does not deserve any consideration at all and is obviously self-destructive. Power-intoxicated elite of the establishment is rotten to its core and would demolish itself under its own weight sooner rather than later. The more important question, therefore, is what do the people and political parties in the country want? This is a critical moment in our history. People and political parties must come together in total solidarity to defend the institution of justice in the country. If they miss this opportunity, they are going to have to live without civil and human right for many more decades. Political parties in the country must stand firm for constitutional governance at all levels. Let no one steal the elections or the parliament or the judiciary from the people of Pakistan. They are the rightful owners of these institutions. If politicians cannot stand up for these institutions, they better call it quits and stop deceiving the people in the name of “politics”.

Similarly civil society leadership at all levels need to defend civil and human rights of the people at all costs and in all sections of the society. You cannot divide the civil rights---allowing them to some and not allowing them to others. If civil and human rights can be snatched from one section of the citizenry, then they will be snatched from other sections in due course. Religious right in Pakistan needs to grasp this truth. But, liberal or conservative, all must realize that everyone’s rights are sacred and can be/must be defended through an independent judiciary in the country. Under no circumstances judiciary should be allowed to become a handmaiden of a single section of the society or establishment.

Finally one must add a laudatory word for the legal community in the country. They have been outraged by the unconstitutional action against the Chief Justice and have come out to defend the independence of judiciary with their blood. Their commitment to the protection of justice has added a new chapter to our judicial history. Their struggle is the only redeeming feature of the current situation for the image of the country abroad. It is also critical for the restoration of the dignity of judiciary in the country and must succeed. It can succeed if it remains focused on its goal of defending the judiciary and is not deflected in any other direction. Overall, the current moment in our history has been created and shaped by the legal community’s commitment to justice and, if correctly handled, may set us on course for truly constitutional governance in Pakistan---a governance under which a chief justice will be allowed to walk to the court, if he so wills.

Dr. M. Ashraf Adeel

Department of Philosophy

Kutztown University of Pennsylvania

Pennsylvania, USA.

(Former Vice Chancellor Hazara University)