Conscience of the constitution: The Judicial Crisis in Pakistan

Conscience of the constitution
The News, January 22, 2010
By Ayaz Amir

The National Reconciliation Ordinance (NRO) was a dead duck the moment the National Assembly refused to have anything to do with it. If it still needed another shot in the head, a division bench of the Supreme Court (SC) could have done the needful, no extraordinary issue of constitutional theory being involved in the outcome.

But we have not been that lucky, all 17 of their SC lordships hearing the NRO case whose detailed judgment -- written by My Lord the Chief Justice -- is now out, and about which the shrillest comments are coming from the already committed or the already biased.

This judgment is not for the fainthearted because it doesn't make for easy reading. This is not syntax at the point of a rapier; more a sledgehammer driving home its many obvious points.

Discrimination -- favouring a certain classification of people, to the exclusion of others -- was enough of a touchstone by which to fell the NRO and make short work of it. But in its wisdom -- and I readily confess there may be reasons for doing so not readily accessible to untrained legal minds like mine -- the SC chose to traverse a longer route, to arrive at much the same conclusion.

In so doing the SC has pointed the way, in part, to a quaint realm of thought. It says the Constitution has a conscience which nothing must violate, a point of view likely to sound strange to the many cynics inhabiting the Republic who are convinced that anything by way of both innocence and conscience the 1973 Constitution lost long ago at the hands of such conscience-keepers as Gen Ziaul Haq.

Zia's greatest collaborators were superior judges, as were Pervez Musharraf's when he seized power many years later. It is a sobering thought that all the 17 pillars of wisdom now in the SC took oath under Musharraf's Provisional Constitutional Order (PCO) in 2000. The Constitution may have had a conscience even then but it wasn't strong enough to deter baptism in the waters of the PCO.

Nor was this all. Just as earlier coups had been validated by the superior judiciary, Musharraf's coup was validated too in 2000 in the famous Zafar Ali Shah case. Among the luminaries on that bench headed by Chief Justice Irshad Hasan Khan was an up and coming judge by the name of Iftikhar Chaudhry.

By which I do not mean to say that people remain always the same and do not change. They change all the time. Some of us as we grow old become worse, leaving the idealism of youth behind. Some of us grow better, leaving behind the thoughtlessness or follies of our younger days. But the least that should come with the remembrance of past omissions or mistakes is a measure of humility.

How well has Ghalib put it: Mein ne Majnoon pe lark pan mein Asad, Sang uthaya tau sar yaad aya. When I thought of casting a stone at Majnoon, I thought of my own head -- meaning my own follies.

In his note to the detailed judgment written by CJ Chaudhry, Justice Jawwad Khawaja writes as follows: "At the very outset it must be said, without sounding extravagant, that the past three years in the history of Pakistan have been momentous, and can be accorded the same historical significance as the events of 1947 when the country was created and those of 1971 when it was dismembered." He goes on to say: "It is with this sense of the nation's past that we find ourselves called upon to understand and play the role envisaged for the Supreme Court by the Constitution."

Without sounding extravagant? There's a touch of hubris about this declaration which almost amounts to saying that caught as we are in the midst of great events, it is history which calls upon us to make great decisions. A judiciary best fulfils its functions if it is faithful to the letter of the law and if it is honest in interpreting it; and if it doesn't play second fiddle to dictators and doesn't bend the law to suit their purposes. A sense of historical mission, which is what is suggested by Justice Khawaja's observation, is best left to the people and their chosen representatives.

And if it is history we should consider, it must be history in its entirety and not slices of history susceptible to selective interpretation. Nowhere is the judgment's take on recent history more evident, and perhaps more startling, than in its analysis of the meaning of the word 'reconciliation'. It says that the NRO was a deal between two individuals -- Pervez Musharraf and Benazir Bhutto -- for their personal objectives.

"We are of the opinion," says the judgment, "that the NRO was not promulgated for 'national reconciliation' but for achieving the objectives which absolutely have no nexus with the (sic) 'national reconciliation' because the nation of Pakistan, as a whole, has not derived any benefit from the same."

In attesting to the subjective nature of the NRO, the judgment quotes this from Benazir Bhutto's book, Reconciliation: Islam, Democracy and the West: "The talks with Musharraf remained erratic. He didn't want us resigning from the assemblies when he sought re-election. There wouldn't be much difference in his winning whether we boycotted or contested, but we used this to press him to retire as army chief. He cited judicial difficulties. It was a harrowing period. After many, many late-night calls, he passed a National Reconciliation Order, rather than lift the ban on a twice-elected prime minister seeking office a third time, which he said he would do later."

Is this an individual talking or a major political leader discussing the when and how of a democratic transition? The keystone, the flagstone, of Musharraf's rule was his position as army chief. And here when Benazir Bhutto is negotiating the removal of Musharraf's uniform -- in which she eventually succeeded -- their lordships are of the opinion that this deal between the two was just confined to their two selves and had no wider significance whatsoever.

This is a selective reading of the past three years which in Justice Khawaja's estimation have been as momentous as anything in our past. There were many things which came together to pave the way for the transition from Musharraf to the present order. Different chapters were written by different authors.

The lawyers' movement wrote one chapter, arguably the most important in weakening the mainstays of the Musharraf dispensation. CJ Iftikhar Chaudhry and the judges who stood with him wrote another chapter when they defied Musharraf. This was a first in Pakistani history. Judges had been collaborators of military strongmen. They had never stood up to them before, at least not in this manner.

There was a third chapter written by Benazir Bhutto and, much as we may dislike the notion, by our American friends when in tandem they prevailed upon Musharraf to shed his uniform. The judiciary and the lawyers' movement had an indirect hand in this in that they had created the climate in which Musharraf had become an enfeebled ruler. But this should not detract from Benazir Bhutto's role who played her cards shrewdly and engaged with Musharraf in a manner which persuaded him to hand over the army baton to a successor.

The fourth chapter was written in Benazir Bhutto's blood when she was assassinated in Liaquat Bagh. The lawyers and the judiciary had weakened Musharraf. They hadn't destroyed him. Benazir Bhutto's death rocked the Musharraf order by bringing the latent anger of the people to the surface. There was nothing that could save Musharraf thereafter, Benazir Bhutto proving more powerful in death than she had been in life.

And it was only with the coming of democracy that the judges detained by Musharraf were freed. And only with the so-called long march led by Nawaz Sharif that, after many travails, they were eventually restored. In other words, it was the political process and the climate of the times which led to their historic restoration. How can their lordships see themselves in isolation from all this history?

The NRO was a bad law and there can be no cavil with this. But it was part of a larger picture of which there is scarce a mention in the entire judgment.
Email: winlust@yahoo.com

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