Tuesday, November 25, 2008

Chief Justice Iftikhar Chaudhry's Speech at Harvard Law School - November 19th, 2008

chaudury receives award
Speech Transcript: November 19, 2008: Cambridge, MA

Madam President,
Distinguished ladies and gentlemen:

It is a singular honour to be awarded the Harvard Law School Association's Medal of Freedom on behalf of 170 million Pakistanis who continue to stand for rule of law, independence of the judiciary, equality, freedom and justice for all.

This the 19 th day of November , and I stand 10,816 km from my hometown. I stand in one of this planet's largest reservoirs of law: America's oldest law school. And I stand here as a humble representative of all those Pakistanis who continue to defy autocracy, repression and oppression in all their forms.

I stand here for all those Pakistanis who have risen against despotism, dictatorship, brutality, tyranny and injustice. I also stand here for all those Pakistanis who stand for the principle that no one is above the law and all those Pakistanis who agree with Thomas Paine that "in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other."

The power to issue the writ of habeas corpus was exercised with dramatic effect by Lord Chief Justice Edward Coke 8 decades before the English Courts guaranteed the subject of the Crown the right of vote in 1704 in the case of Ashbey Vs. White. It was also three hundred years before full adult franchise was granted to all in England.

For the record, the Act of Settlement, that institutionalized a guaranteed security of tenure came in 1701 some 86 years prior to the Grand Convention at Philadelphia, the Convention that gave birth to a Constitutional Democracy in this country. In other words, judicial independence preceded constitutional democracy by more than 8 decades.

Intriguingly, Pakistani autocrats, whether uniformed or otherwise, are trying to turn the wheels of history in the wrong direction. Our autocrats, whether uniformed or otherwise, while decreeing a democratic order are, at the same time, postponing the establishment of an independent judiciary to an ever more distant future. Such democracy is bound to fail; you can't have a constitutional democracy without security of tenure for the judges .

Imagine; 307 years ago, King William III was cornered into signing the Act of Settlement which "established tenure for judges unless Parliament removed them."

Three hundred years thence, Pakistani lawyers are now struggling to keep their autocrats, military as well as democratic, from influencing judges. The campaign underway is truly, truly unique. To begin with, the campaigners—devoting time, effort and risking life and limb—seek neither any office nor power. A hundred thousand intellectuals lawyer' at two in the morning, thousands getting burnt by the cruel sub-continental sun, hordes waiting in rain drowning a Chief Justice's car in rose petals are all things neither Pakistani nor something that the Third World has ever witnessed. Unprecedented and without any equal in human history, the whole movement is about three things: principles, principles and principles.
On March 9, the debate was all about the action against me alone through the Presidential Reference or indictment. No more. The indictment or charge sheet was thrown out and trashed by the verdict of 13 senior judges of the Supreme Court including those who would profit by my removal. The struggle now is all about "Trias Politica", 'separation of powers', 'role of the judiciary in our society', 'rule of law', more about ridding the Judiciary from Executive enslavement.

In Pakistan, both civilian as well as uniformed autocrats have been influencing judicial decision-making for the past 6 decades. Just look at what we now have: an inefficient, vulnerable, partial judiciary. And, this inefficient, vulnerable and a partial judiciary has long been keeping Pakistan from realizing her full economic growth potential.

Judicia l reforms are a high stake venture. Every reform undertaking has potential losers and potential gainers. Potential losers, if our judiciary is to become truly independent, include civilian as well as uniformed politicians and our intelligence agencies. Potential gainers: the general population at large and the economy. There are two problems: First, potential losers are also our principal decision makers so they resist reforms. Second, potential losers are organized, potential gainers are not.

Remember, almost all of Fortune 500 companies are a product of economies where the law rules supreme. At the same time, the poorest of the poor continue to dwell in countries where men govern as opposed to law. A government of laws stimulates economic growth. A government of men impedes economic growth.

Pakistan's 600-day 'March to Justice' has been long and painful. Those black-coated lawyers, braving the baton and the bullet, gas and guns, the inclemency of the weather, the mid-day scorching sun and the sub-zero winter storm, are ambassadors of law, missionaries of justice, messengers of virtue, emissaries of due process and jurists of fairness. They seek no seat of power. They look for no junkets at state expense. They long for no bullet-proof limos.

I salute, too, the millions who participated in the Long March. It was a seeding machine, a real and living revolution. It was the proclamation of a new manifesto for Pakistan. It was a declaration that the pursuit of justice cannot be subverted or resisted.

The latest in our series of military dictators had built his throne strong—strong on pillars of oppression and repression. The latest in our series of military dictators having partnered with the lone super power had sent every civilian leader into forced exile. He sent Benazir Bhutto to Dubai and sent Nawaz Sharif to Saudi Arabia. They could not come back. They were therefore could not face the dictator's wrath. The latest in our series of military dictators wouldn't abdicate his throne—wouldn't abdicate his throne for anything in the whole wide world. But then, the lawyers came on stage. They faced the dictator's wrath. They weakened the pillars of oppression and the pillars of repression. The lawyers exerted the pressure that brought Benazir back. The lawyers exerted the pressure that brought Nawaz Sharif back. And, the lawyers brought Dictator Musharraf down.

Remember 1987. The Russians had come in T-84 tanks and the Russians had come in Putilov armoured cars. Lithuanians had neither tanks nor cars. Their songs were their tanks and their hymns their cars. The tanks rolled over men. The tanks rolled over women. And, the tanks rolled over children. Lithuanians did nothing but sing. Lithuanians sang in front of radio stations. Lithuanians sang in front of television stations. But the tanks kept coming for four long years and Lithuanians kept singing for four long years. We all know what happened at the end. Tanks lost, songs won. Russians lost, Lithuanians won. Remember 1990. Lithuania got liberated. We all know that was the Singing Revolution.

Now try and remember the 9 th of March the year 2007. A dictator had not suspended me but the Chief Justice of Pakistan. And with me he purported to fire several dozen other judges. The entire superior judiciary was out in the cold. Now that's something that had never happened—never in Pakistan's 61-year chequered history never in the 10,000 years of human history. That's when Pakistanis began their 'Long March to Justice'; Pakistan's 'Lawyers' Revolution' had begun.

South Asia had never seen a Lawyers' Revolution before. The judges were fired for no rhyme or reason. I began to address the Bar Associations. That is when the people began to pour out.

March 9 th is seen by the people when the Chief Justice of Pakistan said "NO" to a military dictator. But I only did my duty according to my conscience. Now that's something that had not happened in 61-years of Pakistan's history.

Who doesn't know that Pakistan has been a 61-year long judicial nightmare? But then the Chief Justice said "NO". And, that "NO" has fathered a dream. It's a dream to end the nightmare. A Pakistani dream to become part of civility. Everyone knows that dreams take time. And I know that this one would too.

To live by the law is all that the dream is all about. Pakistanis, both with and without guns, will have to live by the law. Play by the rules and no judge can ever become a hero. Break the law, and crowds gather and mirrors show the crowds to the world. Judges become heroes.

Pakistan's Lawyer' Revolution has been just that, a revolution and no less. Our Lawyers' Revolution is like no revolution in the entire Muslim world. Lawyer' Revolution is like no revolution in a thousand years of Islamic history. Remember, Pakistan's revolutionaries are neither soldiers nor warriors. Remember, Pakistan's revolutionaries have neither guns nor bullets. Their drums are their guns and their drumsticks are their bullets. Remember, Pakistan's revolutionaries have damaged no property and hurt not a soul. Remember, Pakistan's revolutionaries have been on the streets for 20 long months.

Is the state of Pakistan to be subject to the 'Rule of Law' or the 'Rule of Man'? Well, there are two broad systems of governance: 'Rule of Law' and 'Rule of Man'. Now there are 245 countries on the face of our planet and of the 245 there are 202 sovereign states. Of the 202 sovereign states, the "Supreme Court of Pakistan is the only court in the world to have given cover to military rulers under its novel law of necessity theory. Of the 202 sovereign states there are 193 states with international recognition and of the 193 states there are 192 member-states of the United Nations. I would say that of the 192 member-states of the UN, two-third are being governed based on the 'Rule of Law'. I would also say that of the 192 member-states of the UN, one-third are being governed based on the 'Rule of Man'. Please note that of the 57 member-states of the Organization of Islamic Conference, four-dozen member-states fall into the 'Rule of Man' model of governance. Under 'Rule of Law', the source of all authority within the state is the law of the land. Under 'Rule of Man', the source of all authority within the state is the man who rules. Using the same principle, states can be divided up into pre-modern and modern; pre-modern is where the source of authority is the man who rules while modern is where the source of authority is the law of the land.

It's time for Pakistan to transform from a 'Rule of Man' to a 'Rule ofLaw' state. It's time for Pakistan's judiciary to declare a spade a spade. We are already a half century behind India's judicial transformation. Obviously, justice cannot be dispensed in a vacuum. Pakistan's judiciary has to be confident that Pakistan's civil society has reached the level of maturity whereby the Judiciary will be protected against the coercive apparatus at the command of the Executive.

Pakistan's 'Rule of Man' model of governance has seen at least four conflicts between the gun and the law. For the record, Pakistani gun has a history of winning over Pakistani law. This is what Pakistani lawyers now want to reverse. The law ought to win, not the gun. Pakistani lawyers now want the source of all authority within Pakistan to be the law of the land, not the gun.

Who's side are you on? The dreamers or the anarchists?

Pakistan's present judiciary has neither institutional nor decisional independence. No wonder Pakistan is flirting with financial bankruptcy. America will not win her war either. No one can win without siding with rule of law.

Pakistan is at war. At war on two fronts; judicial and militant insurgency. Lawlessness, chaos, confusion and disorder have led Pakistan into a spooky, dangerous dungeon. Rule of law is Pakistani's only way out. Rule of law is America's only way out.

You have to choose are you on? Lawlessness, chaos, confusion and disorder? Or, rule of law, clarity, harmony and prosperity?

On November 4 America voted. On November 4 America stood united for change. On November 4 America voted for change. Change is what an overwhelming majority of Pakistanis demand as well. A change from 'rule of man' to 'rule of law'.

You have Article Three of the United States Constitution. Canada has her Constitution Act. And, Britain her Constitutional Reform Act. What we have is Part VII of the Constitution of Pakistan. We all have statues and we all have laws. America, Canada and Britain also have rule of law. What we have is rule of man. What we need is rule of law. What we cannot live without is a judiciary that is immune to political interference.

Remember, rule of law is inhospitable both to dictatorship and terror. Remember, Pakistan's judiciary is at war. And, America's judicial, legal and academic fraternities must help Pakistan fight this war. Pakistan's judiciary desires to transform Pakistan. And you must help Pakistan transform itself. Rule of law is Pakistan's national consensus. And we must all side with Pakistan's national consensus.

This medal is a tribute to all the judges, lawyers, media persons, political workers, traders, labourers, civil society members and every Pakistani citizen of Pakistan who have stood steadfastly by the rule of Law. It is my privilege to accept it on their behalf.

Thank you ladies and gentleman

Related:Pakistan’s ousted Chief Justice accepts HLS Medal of Freedom - Harvard Law School NewsPakistan Chief Justice Iftikhar Chaudhry’s Speech at Harvard Law School - NYT

1 comment:

prags79 said...

Bravo. I am an Indian, I new feel good about Pakistan because with the leaders like chowdary pakistan would take small step to modernity.
I think for sake of Pakistan, and the world we should help in reforming the Pakistani Army. I remember once Gen Musharaff saying the Pakistan Army to be most disciplined Army. When my Pakistani Freiends when I was then in Germany told this. My reply was An Army who overthrows its own Law is the most indisciplined force.