Aug 5, 2009

Supreme Court reborn

Roedad Khan

The Supreme Court, in its landmark judgment on Friday last, declared all the actions taken on or after November 3, 2007, by former military dictator General (r) Pervez Musharraf as unconstitutional and invalid. How could one resist the temptation to be present on such a historic occasion? History was in the making. I was lucky enough to have witnessed, from a ringside seat in the court, the brick by brick demolition of the unconstitutional edifice erected by General Musharraf. This was the crowing event, the apotheosis of all that we had fought for. The mood around me in the court verged on ecstasy. I never thought I would live to see that day. My own overwhelming sense of triumph and happiness was mixed with relief. After all those years on the streets of Islamabad, it was over. In another sense, it had just begun.

War, according to the famous aphorism, is too important a matter to be left to the generals. The work of the Supreme Court is similarly too significant in a country such as ours to be left only to the lawyers and law professors. It is scarcely possible to understand our history without an understanding of the part played in that history by the Supreme Court. Today the court is both a mirror and a motor – reflecting the development of the society which it serves and helping to move that society in the direction of the dominant jurisprudence of the day.

In Pakistan, as in all federations, the Supreme Court plays a crucial role. It is the sole and unique tribunal of the nation. The peace, prosperity and very existence of the federation rest continually in the hands of the Supreme Court judges. Without them, the constitution would be a dead letter; it is to them that the executive appeals to resist the encroachment of parliament; parliament to defend itself against the assaults of the executive; the federal government to make the provinces obey it; the provinces to rebuff the exaggerated pretensions of the federal government, public interest against private interest etc. They decide whether you and I shall live or die. Their power is immense.

In every period of political turmoil, men must, therefore, have confidence that the superior judiciary, the guardian of the constitution, will be fiercely independent and will resist all attempts to subvert the constitution. It is our misfortune that from the country's first decade, our judges tried to match their constitutional ideals and legal language to the exigencies of current politics. The superior judiciary has often functioned at the behest of authority and has been used to further the interests of the rulers against the citizens. Their judgments have often supported the government of the day. This was their chosen path through the 1950s and during the martial law period of the 1960s and the 1970s. When the history of these benighted times comes to be written, it will be noted that the superior judiciary had failed the country in its hour of greatest need.

In the darkest hour in the history of our country, fate had found the man who had the character, the will and the determination to speak truth to the military dictator. Chief Justice Iftikhar Mohammad Chaudhry appeared on the scene like a deus ex machina and changed the course of history. Had fate not intervened, he might have retired, like any other chief justice, leaving behind an indifferent judicial record. But somewhere in the universe, a gear in the machinery shifted. As history shows, everyone must, from time to time, make a sacrifice on the altar of stupidity to please the deity. General Musharraf thought himself poised on the cusp of power, but was about to start sliding down a slippery slope whose end is bound to be disastrous.

When Chief Justice Chaudhry refused to resign, and decided to defend himself against the military dictator, he ignited a flame that soon engulfed the country. With that simple act of courage, he changed the course of history. The die was cast. A Rubicon crossed. Suddenly, "that uneasily dormant beast of public protest" -- Musharraf's nightmare, his greatest challenge – burst forth.

The "historic encounter" between Chief Justice Iftikhar Chaudhry and General Musharraf reminds me of the famous confrontation between Chief Justice Coke and King James I. The year was November 13, AD 1608. The king felt greatly offended when told that he was under the law. "This means", said James, "that I shall be under the law, which it is treason to affirm". "To which", replied Coke, "I said that Bracton saith, quod rex non debet esse sub homine, sed sub Deo et lege" (that the king should not be under man but under God and law). Chief Justice Coke did not waver. He did not falter. He risked going to the tower but he stood his ground.

The Iftikhar Chaudhry court reminds me of the Marshall court in America. Marshall made the Supreme Court "a driving force" for change. Like the Marshall court, the Iftikhar Chaudhry court has put itself in the vanguard of change. Marshall employed the law as a means to attain the political and economic ends that the people favoured. The judge was to use his power to mould the law in accordance with the needs of the American people. Marshall moulded his decisions to accord with the "felt necessities of the time". For Marshall, as for Iftikhar Chaudhry, the constitution, like law, was a tool to serve the needs of the nation.

In Pakistan, the Supreme Court's historic role has been one of subservience to military dictators. Chief Justice Chaudhry broke with the past tradition and changed all that. The nexus between the generals and the superior judiciary has snapped. An era of deference by the Supreme Court to the executive has given way to judicial independence. Isn't it ironical that today the people of Pakistan, especially the poor, the disadvantaged and the voiceless, expect justice not from parliament, not from the presidency, but from an unelected and unaccountable Supreme Court?

Today the political landscape of Pakistan is dotted with Potemkin villages. All the pillars of state, with the exception of the Supreme Court, are dysfunctional. Pakistan sits between hope and fear. Hope because "so long as there is a judiciary marked by rugged independence, the country and the citizens' civil liberties are safe even in the absence of cast-iron guarantees in the constitution". As early as 1837, Tocqueville wrote, "the president may slip without the state suffering, for his duties are limited. Congress may slip without the union perishing, for above the Congress there is the electoral body which can change its spirit by changing its members. But if ever the Supreme Court came to be composed of corrupt or rash persons, the confederation would be threatened by anarchy or civil war". Fear that in spite of a strong and independent judiciary, the present corrupt order will perpetuate itself because both the presidency and parliament are out of sync with the spirit of the times.

And what of Musharraf? "Short while ago, we saw him at the top of fortunes' wheel, his word a law to all and now surely he is at the bottom of the wheel. From the last step of the throne to the first of the scaffold there is a short distance"? Musharraf is gone, derided by the people and thrown by them in the dustbin of history. Musharraf subverted the constitution, imposed martial law, sacked and jailed the judges of the superior courts and emasculated the judiciary. He must be called to account and punished. In the words of Chief Justice Hamoodur Rahman, "May be, that on account of his holding the coercive apparatus of the state, the people and the courts are silenced temporarily, but let it be laid down firmly that… As soon as the first opportunity arises, when the coercive apparatus falls from the usurper's hands, he should be tried for high reason and suitably punished. This would serve as a deterrent to all would-be adventurers". Now that coercive apparatus has fallen from Musharraf's hands, he should be tried for high treason and suitably punished. "Fiat justitia rual coelum", (Let justice be done even if the heavens fall). Heaven won't fall. That is for sure. Pakistan will be Pakistan again. It will be morning once again in Pakistan.

The writer is a former federal secretary. Email:,

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