Saturday, September 15, 2007

"The Justice and the General": By Aitzaz Ahsan

Pakistan: The Justice and the General
A journey towards democracy by Aitzaz Ahsan
Index on Censorship for Free Expression: September 15, 2007

When President Musharraf suspended the chief justice of Pakistan, Iftikhar Muhammad Chaudry, earlier this year, there was an unprecedented public outcry and major repercussions for the president’s bid for re-election. A further stand-off is now likely following former prime minister Nawaz Sharif’s attempt to return to Pakistan. On a recent visit to London, the chief justice’s lawyer, Aitzaz Ahsan, who led the protest movement in support of Chaudry, recalled the dramatic events.

March 9 dawned with Chief Justice Iftikhar Muhammad Chaudhry presiding over his bench in the Supreme Court. He was informed that the president, who is also the chief of army staff, would like to see him. There has been much controversy over whether he went voluntarily or whether the president summoned him, but it has been established in the Supreme Court – and I have argued it – that he was summoned. That is another issue.

The chief justice, I think, was happy. He was going to see the president. He had an agenda to discuss the appointment of judges. He had requested a consultation (mandatory since a Supreme Court judgment in 1996 on how judges must be appointed). He had a list of judges that he took to the president to come to some decision.

The charges

Instead of discussing the appointment of judges, the president began to discuss charges formulated against the chief justice. And sitting with him, this general-president, were four other generals, three in military uniform: two intelligence chiefs – director-general of Military Intelligence and director-general of Inter Services Intelligence (one of them, I believe, living here in London these days!) – the director-general of the Intelligence Bureau, a brigadier, and also a lieutenant-general, and another general. So five generals, three in uniform, encircled the chief justice, while the president, also in uniform, outlined the charges.

‘Yes, well I’ve read about them. Lawyers have written a letter to me about some of them and most have been published in the press, there has been an outcry on that basis. They are spurious. Nobody takes them seriously.’

The general said: ‘No, but I take them seriously.’
The justice said: ‘Oh? Up to you.’
The general said: ‘I’ll make an indictment to the Supreme Judicial Council.’
‘Well that is your choice, sir. You can make the indictment, but I tell you the charges are spurious.’
‘Then you have an option.’
‘What is the option?’
The justice said: ‘I’m not resigning.’
‘But you’ve got to resign.’

The justice said ‘No!’ At which point, after a while of fervent persuasion, the general-chief of army staff left the room, leaving the justice in the custody of his colleagues.

They were very anxious to extract a resignation because the general had instructed the justice to resign, and if the chief of army staff instructs you to resign, you have to resign. But the chief justice kept refusing and saying, I assume meekly and softly, that he too was a chief – just not their chief, because he was not wearing their uniform.

The long and short of it was that the justice was detained for five hours and driven in custody to his house where he was detained with his family until 13 March. In the meantime, what actually had happened was that the army had a Plan A, but no Plan B.

Plan A was: ‘Call the chief justice, sit him down and tell him to resign, he’ll resign. What will he do? He’ll resign!’

But when he refused, they had no Plan B.

So, in pure military fashion, what do you do if the chief justice is refusing to resign, what do you do? You secure the Supreme Court. How do you secure the Supreme Court? By appointing an acting chief justice! How do you appoint an acting chief justice when there is already a chief justice? You suspend the chief justice. How do you suspend a chief justice? You find a reference! So immediately a reference was churned out of a computer in some joint secretary’s office and sent to the Supreme Judicial Council. And because the matter had been referred to the Supreme Judicial Council, the chief justice was suspended. But nobody read the reference and nobody read the documents that accompanied the reference.

The silence

He spent four days under house arrest, with his children and family - all his servants had been picked up by the intelligence agencies for interrogation. Pakistan had turned a new page. First the lawyers and the bar association came out militantly in defence of the chief justice. Then, the people… On March 13, the Supreme Judicial Council, not having read the reference and not having read the material, had appointed the day for the first hearing of the chief justice.

That was the first time the chief justice had come out of his house in four days. Four days of confinement with his telephone lines cut, television signals jammed, newspapers prohibited, with intelligence agents serving his food. That was the day there was a big demonstration outside the supreme court and that was the day he retained me as his lawyer. It was a great privilege, from amongst all lawyers, to be selected by the chief justice of Pakistan when his life, his liberty and reputation were at stake. The only thing I asked him, when he asked me to be his lawyer, was: ‘Do not buckle!’

‘I am faced by desperate men,’ he said, ‘but there is no way they can break me.’
I then said, ‘There is one other thing. From now on, no public statements, no media conversations.’

‘But the media are trying to get into my bedroom. What should I do?’
‘If the judges learn in the next month or the next six weeks that you have turned from a judge into a politician, I will have lost the case. So, no statements to the press. No media.’

Which he abided by assiduously. So that was an important decision. The other decision we took was to have a panel to support the chief justice and that included the Supreme Court Bar Association President and the Pakistan Bar Council Vice Chairman. We took a decision, you know: the chief justice is doing nothing! He’s been suspended, he can perform no constitutional duty, neither administratively nor judicially. But is there something he can still do while on forced leave?

So we looked at the rules and the code of conduct, etc, and we found that he could go and address bar associations. So, why not? It’s part of the duty of a judge to try to maintain good relations between the bar and the bench.

The Pajero

So, since he was receiving invitations to address bar associations, we took the decision that he would. But with that we took another decision that was crucial. And that was to travel to the bar associations by road. We did not know when we decided about the kind of response we would get from the people of Pakistan. It was phenomenal.

The 150 miles between Islamabad and Lahore we covered in 26 hours: the people would not let the vehicle go past. They would block it. People ask me now: ‘Are you a better lawyer, a better parliamentarian, a better politician or a better driver?’ I think I’m a better driver than anything else. We went to Peshawar – 70 miles we covered in ten hours; we went to Faizlabad, and those 150 km were covered in 23 hours; and when we went from Lahore to Multan, those 200 miles were covered in 40 hours.

It was just crowds and crowds and crowds. It was like driving at the bottom of the sea with the resistance of the water against you. And you’ve got to drive at an optimum speed. People are trying to push the car back in their enthusiasm to shake hands with the chief justice and they had to do it from my side because his window wouldn’t go down. The radiator was choked with rose petals and there was no cooling down. This was May 6, in the hottest month. Everybody was dressed in black robes, black jacket, black trousers. People were running around the vehicle, kissing the vehicle, getting on top of the vehicle. I have a photograph of the vehicle, a Mitsubishi Pajero Chief, which the Japanese ambassador especially came to my house to photograph!

I can tell you one thing. Out of the two, the manual or the automatic, the only one you can use is the manual, because you need the clutch to determine speed. Without that, if you take your foot off the gas pedal, the car starts moving backwards with the force of the crowd, and if you put your foot on it, the car jumps into the crowd. Go with manual every time!

The gate

We had not expected the response we got. It changed the face of the country. It gave heart to the judiciary. In the movement for the independence of the judiciary, that was the most significant and important factor. And then, let me also say very simply and straightaway, the chief could not be exposed to political slogans, he couldn’t even show photographers a v-sign. There would be political parties, political flags, cadres, civil society, shopkeepers and crowds.

When we entered Faizlabad at 3am, it took us five hours while the whole town was alight, celebrating. All the shops and bazaars were open, people were chanting slogans, dancing, beating drums. It took us five hours to get to Kacheri Gate. Fifty thousand people marched with us; there were several hundred thousand that remained in the squares or went back to bed after we had passed. The gate opened. Only lawyers and the chief justice’s car went in: every political worker or civil society worker stayed out because we kept saying that the chief justice is not going to address a public meeting. He cannot, because he is the chief justice.

It was amazing the love that was showered by the people, but let me tell you that the love they had for the chief justice was not matched by the hatred and contempt that they had for the general.

So we had first a decision: that the chief justice would not speak to the press and media, only to the bar associations. We had a second decision: that he would travel to address the bar associations. And a third critical decision: that he would go by road. We had a letter from the acting chief justice that the chief justice should not undertake the Islamabad-Lahore journey by road, but take a flight. The Supreme Court judges wanted the chief justice to go by air it seemed, but we had made all the arrangements to go by road. We did not realise there would be large crowds and that this would be a 26-hour journey. So one of our friends picked up the phone and rang up the Gujarat District Bar and said: ‘Hurry up and fax an invitation to the chief justice to address the Gujarat Bar Association immediately.’

The council

The proceedings were being held in camera at the Supreme Judicial Council. The Supreme Judicial Council is composed of colleagues of the chief justice who are immediately junior to him. Each in his turn would become the chief justice of Pakistan if the chief justice was prematurely ousted. I said: ‘In case the chief justice is reinstated – this is all in camera – you will be reviled as the senior puny judge of the Supreme Court – but in case he is ousted, by your judgment, you will be chief justice of Pakistan for four long years.’

‘No,’ he said, ‘three years, six months and 14 days.’
I said: ‘That is what I wanted to establish was going on in your mind!’

The petition

Eighteen hours before the Supreme Judicial Council was due to meet, driving back with the chief justice, a little depressed and despondent, I said to him: ‘Chief, I think the goose is being cooked.’

He said: ‘What do we do?’
I said: ‘We have to go and petition the Supreme Court.’
‘Who will petition the Supreme Court?’
‘The chief justice of Pakistan.
‘Who? Me?’
I said: ‘Yes.’
‘Petition the Supreme Court? Me? The chief justice of Pakistan? My own court?’

I was the sole voice saying it had to be the chief justice’s petition. Not the Supreme Court Bar Association, not the Pakistan Bar Council, not any good Samaritan. It won’t be taken seriously. Everybody and his grandmother in Pakistan thought that we were not going to fight. As I was going to leave the chief justice’s house, he held my hand and whispered in my ear: ‘Just go and lodge the petition.’

That decision was unprecedented and the judgment will also be without precedent.
To argue the petition and to establish that a chief justice could petition his own court – we were challenging the Supreme Judicial Council before the Supreme Court – my associates and I scanned every jurisdiction on Earth for the last 500 years of judgment.

The cases I quoted were from Trinidad and Tobago, and Belize, of course from the United Kingdom and India. No where had the chief justice of a country sued the head of state in his own court. This, to that extent, was something without precedent

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