Saturday, August 02, 2008

A chief justice delayed...

A chief justice delayed
By F.S. Aijazuddin, Dawn, August 2, 2008

THE philosopher-poet who conceived our nation was a lawyer. So were the founder of our nation, our only nominee on the International Court of Justice at The Hague, and the prime minister who gave us our 1973 Constitution. So were both our current functioning and non-functional chief justices. Given such a legal lineage, why do we continue to treat the law with such contempt?

To many, the ongoing movement by the lawyers’ community to restore Chief Justice Iftikhar Chaudhry and other judges to their positions ante-Nov 3, 2007 appears as a renaissance of faith in the nation’s judiciary. To others, their agitation is less altruistic in its motive. For them it has one aim, and that is to commit regicide.

Nearly nine months have passed since President Pervez Musharraf removed Justice Iftikhar Chaudhry. What was intended to be a swift procedure that should have taken no longer than the time it takes a surgeon to remove an appendix has instead lingered, and then festered, until it has become a suppurating sore on our body politic.

Can it ever be healed? Quite frankly there is no one who has not tried, from constitutional connoisseurs to legal literati to political pundits. It seems that rather than touch it, they prefer to wash their hands of it.

President Musharraf has stopped asking for advice on it. Asif Zardari would prefer not to be given a solution to it. And Mian Nawaz Sharif, when confronted at the conclusion of the lawyers’ long march on June 14, shied away from a definitive resolution. A chief justice delayed meanwhile continues to be a chief justice denied.

The lawyers’ community is understandably disgruntled. Those who subsist from a client’s hand to their mouth have suffered financially by refusing to appear before PCO judges. Schisms have begun to appear amongst politically aligned factions of the various bar associations. Lawyers have descended to the level of their clients, bickering and arguing and ventilating their differences in public.

Chaudhry Aitzaz Ahsan, as president of the Supreme Court Bar Association, squandered a chance for victory when, in an error of judgment that Mahatma Gandhi once described in another context as “a Himalayan miscalculation”, he disbanded the long marchers instead of leading them in a Bastille charge against the official barricades in Islamabad, or in a passive Gandhian sit-in.

His strident demands for the reinstatement of Chief Justice Iftikhar Chaudhry continue. But, being a lawyer, he sees a benefit in yet another adjournment — this time until Aug 14, when he hopes to celebrate the independence of our country and the independence of the judiciary simultaneously on the same day.

In all this, the predicament of the non-functional chief-justice-in-the-wings is perhaps the most poignant. He has endured being manhandled by police officers who would have cowered in his court. He has had his hair pulled, his family incarcerated and his liberty denied.

During the dark days of his house arrest, he might have had time to recall the humiliating trials of his American brother-judge Clarence Thomas, prior to his nomination to the US Supreme Court in October 1991. Thomas was the second African-American judge after Thurgood Marshall to be so elevated, but the character assassination during the Senate hearings left him badly battered.

“This is a circus,” was his angry remonstrance. “It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the US Senate rather than hung from a tree.”

At one point, Clarence Thomas even thought of asking the White House to withdraw his nomination. No job in the world, he felt, not even a seat on the US Supreme Court, was worth the humiliation he was forced to suffer. Even though Thomas was finally voted in by the Senate with the slim majority of 52-48, it was never enough to assuage the bitterness he harbours to this day.

Chief Justice Iftikhar Chaudhry in his private moments must have experienced similar misgivings. He must smile ruefully that while he still awaits restoration, the attention-seeking lawyer Naeem Bukhari (whose open letter of Feb 16 against him lit the fuse that has led to the present conflagration) has had his membership of the Punjab Bar Council, from which he was then expelled, restored.

Putting aside for a moment the mechanism by which the non-functional chief justice and other judges could be rendered functional again, now or in the near future, the public has a legitimate reason to speculate about what would happen afterwards.

Musharraf would be understandably apprehensive. Asif Zardari would read the fine print of the NRO. Nawaz Sharif would be exultant at restoring the dignity of the same Supreme Court his cohorts had stormed in November 1997. And Barrister Aitzaz Ahsan would have achieved the lawyer’s dream: a Supreme Court bench of his own restoration.

Will Chaudhry Aitzaz Ahsan or his fellow agitators abstain from appearing before any of these restored judges? Will any of these judges, once restored, excuse themselves from hearing a case argued by their erstwhile benefactors?

To those Pakistanis to whom the law is still something to look up to, no matter how far it has been made to fall, such an act would provide a very necessary affirmation both of the restored independence of the judiciary and its refurbished dignity. Most importantly perhaps, it would send a message to the public that although the law (to quote Charles Dickens) may be an ass, and that some politicians do on occasions behave more stubbornly than mules, what matters most to the public is the supremacy of the law and the dispensation of justice.

At this critical moment, our beleaguered country needs just such a restorative.

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