The ‘Judge’ Story: It’s A Bigger Mess

· Some Judges Won, Justice Didn’t
· Legally, Pakistan Could Have 2 Chief Justices Now!
· America’s Pakistani Stooges Have Delivered

The contention that a judge who stands up to a ruler and refuses to resign is washed of all his sins is as lame as a three-legged horse. All PCO judges are the same. Chaudhry Iftikhar can’t be absolved of PCO just because he said no to a dictator when his job was on the line. If he really had a reawakening, why didn’t he say no earlier while taking oath on PCO? Clearly, Kayani is the most powerful Pakistani. Most embarrassingly clear is that it is America that really runs Pakistan. Its clear too that its agents and stooges have delivered and delivered admirably by getting rid of Musharraf who had drawn a line in the sand which he would not allow America to cross. That line has now been obliterated.

By Humayun Gauhar
Sunday, 22 March 2009.

ISLAMABAD, Pakistan—I could begin with “First the bad news” and end with “Now the good news.” But in the affairs of State, issues are rarely absolutely bad or absolutely good, absolutely right or wrong. The usual shades of grey aside, every issue or contention is part good and part bad, part right and part wrong. The question is whether the good outweighs the bad or the bad outweighs the good.

In this (now undeposed – imposed?) Chief Justice Iftikhar Chaudhry thing, President Musharraf was within the constitution in sending a reference to the Supreme Judicial Council to hold an inquiry and give him its opinion, which it was up to him to follow or not. Giving Chaudhry the option to resign in order to avoid a spectacle was according to tradition. Both were right. But to suspend him when he refused, take away his perks, put him and his family under house arrest and manhandle him while preventing him from walking to the Supreme Court was absolutely wrong. In fact, as events have shown, it was suicidal.

Similarly, the principle of independence of the judiciary is a pillar of civilization. All civilized people stand by it. Because it is a fundamental principle, like freedom, it is absolutely and totally indivisible. This is very, very important. Thus to regard one set of judges who have taken oath under an earlier Provisional Constitutional Order as legal and another set who have taken oath under a later PCO as illegal even though both PCOs are exactly the same bar the dates, is to insinuate duality into that cherished principle and thus divide it and lose a vital part of our civilization. The contention that a judge who stands up to a ruler and refuses to resign is washed of all his sins is as lame as a three-legged horse. It is highly convenient to put up a fight when cornered and claim that one has suddenly got ‘Faith’. Yes, if Faith had come to Abu Sufiyan earlier and not the night before the fall of Mecca, we would never have called him King of the Hypocrites. That is why the admirable Charter of Democracy makes no distinction between sundry PCOs and quite rightly holds that no person who has taken oath under any PCO shall be made judge. The cherished principle of independence of the judiciary is adhered to and not divided according to convenience. In the case of our ‘Black Revolution’, thus named after the black coated lawyers, the patently obvious purpose was to exploit the cherished principle to remove one president and then nearly another one that America needs.

Better, therefore, not to talk of good or bad, right or wrong but clarity and confusion. It is clear who the victors and losers are. Chaudhry is one, for he has his job back and his nemesis has lost his. So are his lawyers who led the Black Revolution. The loser is the president. He has been embarrassed. Time will tell whether he is only down or out as well. Clearly the climb-down by the government averted a showdown that could have degenerated into a bloodbath and forced the army to take over, which it is loath to do. But clearly the army did intervene, for without pressure from ‘The Big K’, Army Chief General Kayani, the government wouldn’t have come to its senses and neither would Nawaz Sharif and the lawyers’ leaders. Clearly, Kayani is the most powerful Pakistani. Most embarrassingly clear is that it is America that really runs Pakistan. It’s clear too that its agents and stooges have delivered and delivered admirably by getting rid of Musharraf who had drawn a line in the sand which he would not allow America to cross. That line has now been obliterated. Clearly too the electronic media have emerged as the most powerful force that formulates people’s perceptions and directs the course of events.

Then there is the confusion. Either the Proclamation of Emergency on 3/11/2007 that led to the removal of the judges was legal or it wasn’t. If it was legal, then how come those judges are now back without taking a new oath, as the majority of their deposed brother judges have done? Not taking the oath implies that 3/11 was illegal and therefore all the judges who took oath on or after November 3 are illegal. But we have both sets of judges in office now and more – the deposed judges who broke ranks and rejoined the judiciary after taking fresh oaths and the new ones.

Which is the real Supreme Court? Who really is the chief justice – until yesterday we had two? Is Chaudhry really the legal chief justice simply because post 3/11 chief justice Dogar’s retirement date was conveniently upon us and he is the last man standing? That’s not justice. It’s the law of the jungle. All one can say is that some judges have won – but has justice? We will see.

The post-3/11 judges declared the 3/11 Emergency legal. That has gone into the constitution as Article 270 AAA, even though it was not passed by parliament. Yet this anti-Musharraf legislature kept functioning under this amended constitution without demur. Does that imply that the amendment has been accepted by the legislature? This raises many questions, the least of which is: is it the function of the Supreme Court only to interpret the law (as we have always been told it is) or can they make laws too and even amend the constitution?

Considering that the Iftikhar Chaudhry as CJ had started transgressing into the minutiae of the executive’s domain, the next question is: why have a legislature at all, and why even an executive when a chief justice without check or balance can run all three branches of government? Let the judiciary have all three functions and see this country go to hell in a hand basket.

If the post-3/11 courts were illegal, what happens to all the judgments they have passed? Revisit them? Or brush them under the carpet under the “past and done transaction” copout. What would you say to parents whose son has been hanged? That their son’s execution is a “past and done transaction”? There will likely be another murder.

The people, having given up on the legislature and the executive are now looking to the judiciary as ‘deliverer’ and Iftikhar Chaudhry as a latter day Moses who came to deliver the Israelites from the Pharaoh. Their expectations have broken through the ceiling. They now expect Chaudhry and his gaggle of judges, both legal and illegal and we don’t know who is which, to solve their problems – revive the economy, remove poverty, high prices, joblessness, insecurity, ensure electricity, gas, water, transport, education, decent housing, adequate medicine. They expect the advent of a balanced society (adl – justice in Arabic) with justice starting from the lowest levels upwards, citizens provided the wherewithal to develop their minds to their fullest potential and overall human and family dignity. In short, implement ‘Haqooq ul Ibad’ (rights of the people) to make Pakistan a truly Islamic Republic according to the constitution that the judges take oath under and are thus bound not only to obey but ensure its implementation as well.

People also expect Chaudhry to tell the Americans to take their drones with their hellfire missiles and go to hell. They will be comparing the delivery of Iftikhar Chaudhry’s XI to Soofi Mohammad’s Unlimited. Whoever delivers more in the people’s eyes wins and the demand for him to spread his system all over the country will grow. Chaudhry should remember the hoopla with which Asif Zardari entered the President’s House with the media in attendance, as if the first rightful occupant had finally arrived. Less than a year on and they want him out.

More concerns. Judicial activism is fine as long as it doesn’t transgress into the domain of the legislature or the executive. Impartiality is near impossible. The chief justice constitutes benches and can alter them while a case is still being heard. He also “shepherds” the Supreme Court and can easily shepherd it into the Valley of Death again if he goes on another power trip.

The ‘Deal’ On The Judge

Last week I said that three men are holding Pakistan hostage. Now they have a deal – Sharif and Chaudhry have joined Zardari at the banquet table to partake of a carcass. Recognize it? It’s us, “The People”. Vultures, hyenas and jackals that always surround banqueters will get the skin and bones. The people will get eaten. What a mess, and it’s not the only one. There’s the Punjab mess growing ominous by the hour.

Nothing is impossible. One solution requires a high degree of sincerity and patriotism: the judges of PCO 2002 should say that they have successfully upheld a principle but have become highly politicized and controversial in the process. Therefore for the sake of the judiciary and the country they are resigning. Ditto the PCO 2007 judges, who should also resign for reasons of being highly controversial too.

Or, the legislature should amend the constitution in accordance with the Charter of Democracy that no person that has ever taken oath for any office under any PCO shall ever be appointed to the judiciary at any level. That way we clean the slate and start afresh with untainted judges.

Parliament should also establish a methodology for the selection of judges so that courts don’t get stuffed with stooges, cronies and sycophants by a single appointing authority.

Mr. Gauhar is a Pakistani columnist. He can be reached at


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