Challenging the 2002 referendum in the Supreme Court was a cry of the helpless. Many thought that given the dubious history of Judiciary in Pakistan, this was a futile exercise. Skeptics even went on to suggest this was a conspiracy by the General. What better way would it be, they said, to legalize the referendum than letting others plead the matter with the Honorable Lordships. After all historically the Supreme Court has always been in the military pocket.
But one lives in hope, for this is the essence of life. So one can’t blame Qazi Hussein Ahmed, the Supreme Court bar association and others to look up to the highest arbitrators of justice in this “land of the pure”. This was a sane course that any civilized people would have take when their collective rights were being ruthlessly trampled under military boots. An army General had barged on the political scene with a fraudulent pretext, had tossed the Constitution aside and plonked himself on the throne. Adding insult to injury he was now trying to legalize this act by holding a farcical referendum. Much before the referendum, it had become pretty obvious that Army’s intention was to indulge in a premeditated fraud. The avalanche of nauseating state managed election blitz was a prelude of things to come.
With frustration, rage and despair raging in their mind what were the people of Pakistan supposed to do? Come out on the streets and indulge in loot and burning? Or grab some of the corrupt generals and decorate the lamp posts? Or commit collective suicide in places like Minar-e-Pakistan or the Quaid’s Mazar? Same places which had been abused by Musharraf and his cronies for their media circus. Who knows the way things are going people may lose their minds one day and drift into such options. For now, it was a decent thing to put hope against hope and test the Supreme guardians of the Constitution of Pakistan.
Come 27th of April, these fragile hopes were dashed. The Supreme Court of Pakistan lived up to its reputation and decided to side with the usurper. It was another kick on the teeth of the nation. To me it didn’t come as a huge surprise. Hasn’t the judiciary always been partners in crime with the Army in the checkered history of Pakistan politics? Why would the Judges go against their tradition now? After all these very Judges had taken oath on the Provisional Constitution Order. The PCO is an ever-ready tool regularly crafted by Sharifuddin Pirzada to rubbish the law of the land and give a carte blanche to the successive military dictators. It was too much to expect the “Honorable” judges to have shot themselves in their foot.
What happened in the referendum is part of our dark history. The local and foreign press has rightly poured scorn on this exercise. The level of fraud was beyond expectations and gave a new dimension to the word ‘rigging’. I need not elaborate the modus operandi. The spot light of this writing is on the Supreme Court, for its incumbents have sided with a fraud. It is time that they should be taken to task.
People in Pakistan have a short memory and they are very forgiving. They forgive and forget that the Army always manipulates the politicians from behind, discredits them to set the stage for a military take over and then stays put! Under military threat and for fear of losing their perks the “Honorable” judges readily give a blank cheque to the Junta. Initially we, the “Awam” get excited to see the soldiers jumping over the gates of the Prime Minister’s residence and other public buildings, anticipating a better leadership. The reality dawns soon when we realize that we have been hoodwinked by another joint Army-Judiciary operation. We then sit back in anguish, dreaming about democracy and losing a decade of time in the process. How often does this history need to be repeated? Just look back in time to see how the judges have colluded with the Generals in turning the dials back for Pakistan.
In 1958 Justice Munir upheld General Ayub’s army takeover on the basis of the doctrine of ‘successful revolution being legal’. This was a judicial surrender and the country paid a hefty price for granting judicial legitimacy to Ayub’s draconian act. Similarly the Judiciary did nothing to prevent Yahya Khan’s martial law in 1969. Then come 1972, at the behest of Zulifqar Ali Bhutto, the Court declared Yahya a usurper. This was a belated act in hindsight, only taken when the army was briefly out of the political scene following their demoralizing defeat at the hands to the Indians. Importantly, no one was punished.
The 1973 Constitution had a built in provision of declaring any military takeover, a high treason. This did not stop yet another army general to cast it aside in July 1977 in his ‘Operation fair-play’. Within hours, it was the then Chief Justice of Pakistan, Yaqub Ali who advised General Zia ul Haq that the Constitution can be held in abeyance without the fear of being labeled as traitor. Zia did not stop here. He promptly got rid of Yaqub and got an even more pliant chief justice, Anwar ul Haq. The innocent looking Zia turned out to be a wily manipulator. With the master conspirator Sharifuddin Pirzada at his service, there was no stopping the intrigues. In November 1977 Justice Anwar ul Haq heading a nine member bench had already legalized Zia’s intervention under the “law of necessity”. The decision was duly conveyed to the General Headquarters the night before. Finding that the decision did not include the authority to amend the constitution, Sharifuddin Pirzada threatened Justice Anwar ul Haq with his job. Next morning when the Supreme Court decision appeared, Anwar had inserted a sentence in his own hand writing! These added words gave authority to the Chief Martial Law Administrator to amend the Constitution of Pakistan, an amendment which legally needed the approval of a two third majority of Pakistan’s parliament. This was total capitulation by the Judiciary.
I was rather young in 1977 to understand the implications of all this. But witnessing the repeat of the same sickening exercise in 1999 has opened my eyes. Within hours of the coup, Musharraf contacted Sharifuddin Pirzada, the arch anarchist of Zia ul Haq fame. Again, the Supreme Court of Pakistan gave its blessings to the military might. Not only that, for no solid reason, the court gave Musharraf a whole three years to play with. Above all, to everyone’s surprise, the judges gave Musharraf the powers to amend the Constitution. What a travesty of justice!
What followed is common knowledge. Again the General issued a Provisional Constitutional Order and made the judges to swear allegiance before him. Those who were upright refused or were simply not invited for the swearing-in. The oath taking judges had actually signed away their sovereignty to the diktat of a military dictator. In essence, the signing Judges had accepted that it is the PCO of an army general which is above the Constitution itself. Whatever happened to Honorable Justices’ oath to preserve the Constitution of Pakistan? Will there be ever a time in the history of Pakistan when these generals and the colluding Judges tried (even if in retrospect) for treachery against the Constitution of Pakistan?
Between 1977 and 1999 the Judiciary of Pakistan has been through many more dramas. The Judicial murder of Zulfiqar Ali Bhutto at the behest of General Zia ul Haq and his generals was another vulgar display of connivance of the judiciary with the army brass. Bhutto was no saint and had done much damage to the polity of Pakistan (almost always in collusion with the army generals right through 1958 to 1971). But he did not deserve to be executed. And especially not for the reason in which he was framed. After all, many in Pakistan with much bigger crimes have gotten Scott-free. The villains of 1971 debacle (Generals Yahya, Niazi, Hamid, Peerzada, Farman Ali and many more) have never been punished, not even tried!
The 1990’s saw more Judicial tarnish. Benazir promoted Sajjad Ali Shah over the heads of many seniors to make him the Chief Justice of the Supreme Court. With blatant political ambitions and with the connivance of a conspiring president, Farooq Leghari, Justice Sajjad displayed astonishing histrionics. He crossed swords with the government and the parliament, unilaterally tampered with the constitution and went on to the extent of inviting General Jehangir Keramat to intervene on his behalf. All this was aptly labeled by one of Sajjad’s own colleagues as “Judicial Terrorism”. The irony of this drama was that the Sajjad-accuser was himself accused of carrying brief cases full of money to influence subsequent judgments of “Brother Judges”.
Few in Pakistan’s higher judicial service have dared to dissent against the wishes of the establishment. (read Army!) In 1977 Justice Samdani dared to defy the self-installed Chief Martial Law Administrator, General Zia ul Haq. Zia removed him from the job at the first opportunity. Similarly Justice Ghulam Safdar Shah was hounded by Zia through the FIA after the former refused to be a party to the Supreme Court judgment that sentenced Zulfiqar Ali Bhutto to death.
Ayub, Yahya, Zia and Musharraf have not been the only Generals to take the judiciary for a ride. In 1984 the all powerful Martial Law administrator of NWFP, General Fazl-e-Haq forced Chief Justice Usman of NWFP High court to reverse a decision. Later, he boasted to another general, KM Arif that “the judge did as I wanted him to do”. In 1988 General Beg had instructed the Supreme Court to reverse its judgement to reinstall Junejo’s government after Zia ul Haq’s death. The general’s emissary was the law minister of that time, Mr Wasim Sajjad who was rewarded for the service with the chairmanship of Senate. The case was publicized in 1993 when General Beg was out of uniform but still gloating over his past powers. The then Chief Justice of the Supreme Court, Afzal Zullah agitated a lot, vowing punishment to General Beg. But the case was unceremoniously aborted. Such is the power of a retired general in Pakistan! Which judge would dare question a former army chief? The generals in Pakistan are above the law, above the Constitution and above the Country itself.
Occasionally one sees a sparkle in this sea of darkness. Justice Tariq Mehmood is one of them. Salutes to him for standing up to the military junta on the issue of the referendum and choosing to resign rather than withdraw his stand when under pressure. The judiciary in Pakistan, like elsewhere in the world, is given the respect because of its sacred neutrality. This respect is earned over years through honest and bold judgments and the courage to implement the law of the land. If the judges in Pakistan don’t respect themselves, how can the people of Pakistan look up to them? Not long ago, the Supreme Court allowed a ruffian like Tariq Aziz and his accompanying goons to lead an assault on the court. He went unpunished because he was connected to the corridors of power.
The people of Pakistan now have a legitimate right to confront these judges. If the judges want respect they have to pull themselves out of this cesspool of moral decay in which they have been sinking for the last five decades.