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)
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