The Common Enemy

COMMENT: The common enemy — Asma Jahangir
Daily Times, March 21, 2007

The lawyers’ movement has acquired a broader agenda, addressing the survival of civil institutions under the weight of militarisation

At every judicial crisis, the legal fraternity finds itself in a snare. It has little choice but to protest attempts to undermine the judiciary by the executive. At the same time the actions of the lawyers have often made unworthy heroes of victimised judges. The present crisis is no exception. Lawyers continue to complain that judges balk at them when on the bench but bank on them when on the mat. Yet the bar has no option but to protect the feeble autonomy of a crumbling institution even if its champions are created undeservedly.

Lawyers crave a system where they receive a fair hearing and an assured delivery of justice. They have consistently urged the judiciary to stand its ground, but found few instances to rejoice. The immobilised chief justice of Pakistan was no role model for the bar, but his act of defiance in refusing to resign in the face of executive oppression has made him an instant hero.

The contents of the reference filed by the president are now irrelevant. The central issue is the process adopted by the government in making the chief justice ‘non-functional’ and the subsequent violent attacks on the media and lawyers. The lawyers’ movement has acquired a broader agenda, addressing the survival of civil institutions under the weight of militarisation. Their support has widened, not out of love for the judiciary, but because of the shared abhorrence of military rule.

Pakistanis have matured. They can clearly see through hypocrisy. Ironically, the very authorities that made a mockery of the Constitution are now taking refuge behind it. After having strangulated the spirit of the Constitution the military government expects the lawyers to follow the letter of a mutilated document and abandon all protest as long as the matter of the chief justice remains sub judice The president and his ministers insist that the reference against the chief justice (non-functional) is a purely legal matter, that his detention and manhandling was merely a ‘tactical’ error and therefore the matter should not be politicised. But a planned removal of the chief justice and his subsequent humiliation is neither a mere legal issue nor can it be explained away as a blunder. Over the years the Musharraf government has become increasingly unaccountable and deceitful.

The military action in Balochistan was twisted as a bid by the government to restore its writ. The cold-blooded murder of Nawab Akbar Khan Bugti was painted as an accident and the state’s refusal to hand over his body to the bereaved family was glossed over. All ‘disappeared’ persons are being portrayed as ‘jihadis’ and suicide bombers who have supposedly left their families voluntarily. But according to the information collected by the Human Rights Commission of Pakistan, a majority of those reported to have been abducted by government agents have no connection with ‘jihadi’ groups. Almost sixty percent are Baloch and Sindhi nationalists. There is overwhelming evidence that security and intelligence agencies have violated human rights.

In the past those who wished to defend the president believed that he was misguided. Others took a less generous view and blamed him of living in self-denial. However, Musharraf’s interview with Geo TV (on Monday, March 19, 2007) gives the impression that the president has lost his touch in being able to deceive skillfully.

According to him, the filing of the reference was a matter of “routine” and there was no intrigue or pre-planning. Yet all members of the Supreme Judicial Council miraculously arrived in Islamabad in a synchronised and timely manner. Fortunately, the media brought the reality to life. It was an eye-opener for all Pakistanis — a rude shock and a chilling realisation that no one was safe from the excesses of the rulers.

The fate of the government is at stake. It may survive or perish, but fundamental lessons must be learnt by the bar and bench. Judges must learn to distance themselves from the executive and the bar should remain united in promoting the independence of the judiciary without demonising or lauding individual judges. The process of selection and accountability of judges to the superior courts must be transparent. Judges should not take over as acting governors or seek office after retirement. Similarly, serving judges must not be appointed as election commissioners and they should stay away from being members of law commissions. More importantly, we have to realise that once the military takes over, all civilian institutions must resist in order to survive with dignity.

Asma Jilani Jahangir is a Pakistani lawyer and human rights