As much as I disdain to soil my blog with an opinion piece on temporal matters, the times are such that even the most phlegmatic of bystanders goes like ‘what the hell is going on?’ It has been well over a year that the proverbial shit hit the proverbial fan, even though there is nothing proverbial about the ever-increasing stench, and the dark stains of humiliation upon the nation’s face. On the 9th of March, 2007, a dictator, drunk on eight years of unchecked power, and deluded by some notion of his personal indispensability to Pakistan, threw a gauntlet that has since become a massive, nationwide struggle, underscoring disgrace and defeat for some, individual glory and public accolades for others, and a noble contest between right and wrong, justice and injustice, for yet many more. However, as of today, what remains at stake? The restoration of some 60-odd judges of the superior judiciary who were gallant enough to resist the dictators’ PCO and bore the vagaries of the state’s heavy-handedness, all starting from the Chief Justice’s resounding ‘No’ sending shockwaves throughout the country, the first time the commando ordered him to get packing. The questions that have been plaguing my mind, however, are at a bit of a tangent from the larger issue. I do not intend to doubt the rightfulness of the cause for restoration. True to my lethargic self, all I am trying to figure out is whether this entire ruckus is worth all the attention it gets or all the energy that has been expended thus far.
An independent, not free, judiciary, as an institution, is generally seen as the cornerstone of a fair and a just society. The idea of an independent judiciary springs from the theory of separation of powers articulated initially by Baron de Montesquieu in the early eighteenth century, and is said to be successfully implemented in the constitution of the United States, and is also thought to be effectively practiced in the United Kingdom and in other developed countries of the West. This theory attempts to bring about a balance of power between the three pillars of state, the legislative, executive and judicial, such that a check is maintained on the power of one by the collective and simultaneous powers of the other two, ensuring that neither branch has freedom enough to infringe beyond what is sanctioned by law on the rights and freedoms of its citizens. In this we see the raw skeleton of a social contract the likes of which every third world country in the postcolonial era is expected to emulate along with some form of democratic government, presidential, parliamentary etc. This emulation is necessary for survival in the new world order as much foreign aid and international acceptance depends on it. In this blind emulation of these systems that seem to be working quite well in the First World, both the exporters and the importers of such political philosophies forget that for such types of organized and institution-oriented governments and states to succeed, there needs to be a strong socio-economic base, and not vice versa. Domestic stability is the key. Let us examine the stellar examples we have. The United States gained that stability by an extremely vicious process of internal colonialism, that was irreversible, gradually eliminating an entire people, and by its policies of politico-economic imperialism in recent times. The United Kingdom achieved domestic stability through the 400 year long era of colonialism, in which the British Empire was built on the blood and corpses of peoples from the Americas to Australia. In the postcolonial stage, it maintains that stability by being the foremost client of the world’s strongest power, and everything looks to be hunky-dory for sometime to come. Unfortunately, third world countries, newly released from the shackles of colonialism, have no opportunities for similar glory, and are caught in the dilemma of building institutions on the Western pattern, without the requisite objective conditions. Just looking at ourselves, in a polity so fragmented, divided in a million ways, having multiple identities within one state, how is the simple concept of ‘majority rule’ supposed to work? On the other hand, the assumption on the part of the West that since they succeeded with a certain model of governance, it has to work in the rest of the world too is arrogant to say the least. Does the US forget its own bloody civil war over the question of ‘states rights’, which is now cleverly disguised as a righteous struggle against an evil as uncouth as slavery? Or was it that slavery did not pose as big a moral question, as it did an economic and political one. Be that as it may, like they say in Punjabi, ‘jeday ghar daaney, oday kamley vi siyaney’. The situation that countries like Pakistan face is rife with institutional failures. Pakistan, specifically, is currently experiencing one of the worst times of its history.
Our history as a nation-state is short and, therefore, easy to take a bird’s eye view of. In this short history, the history of the judiciary as an institution is way less than glorious. It has been the most honorable judges of the highest courts in the country that have provided judicial cover all sorts of upheavals, military, bureaucratic, democratic, beginning from the first articulation of the ‘doctrine of necessity’ by Justice Munir in 1953. The judiciary has been up for grabs for various players in the power game, facilitating, or shall I say, taking wholehearted part in such acts as the judicial murder of Zulfiqar Ali Bhutto, or the recognition of martial coups through eclectic interpretations of the various constitutions we have had. This is not surprising to me at least. Was it not out of the Quran that the tyrannies of sultans and shehnshahs justified by over-zealous qazis and mullahs? Was it not that after having raped and pillaged entire populations, proud Muslim generals stood tall and quoted from the Quran, saying ‘And He disgraces those that He desires!’ In this context, the misinterpretation of a man-made constitution sounds almost trivial. Needless to say then that the judiciary, when compelled to choose between justice and political expediency, has often opted for the latter; it has shirked its responsibilities. And this has been primarily because judges have owed their high offices to generals and politicians, and have done exactly what they were supposed to do in a system of never-ending favors and a vicious cycle of ‘you scratch my back, I’ll scratch yours.’ Most of the 60 judges in question accepted Musharraf’s coup of 1999 by taking oath under the 2001 PCO. Senior Supreme Court judges were superseded for the appointment of Mr. Iftikhar Chaudary as the Chief Justice by none other than Musharraf himself. Is it possible that at that time, a campaigner as weathered as Mr. Chaudary did not realize that there could be strings attached? That the favor that had been bestowed upon him would never be called? Did he actually think that being handpicked by a dictator for such an important post would allow him to function independently, and that all he needed to do was get there via the dictator’s favor, and that the end would justify the means? And when he started showing some signs of independence by striking down prime projects of the regime, did he not expect his benefactor to feel wronged, and do what dictators do best: summary execution? In my opinion, the events of the 9th of March were careerism gone wrong for the CJ. If Mr. Chaudary was concerned about justice and fairplay, he would not have postured and lobbied to get the highest judicial post in the country through the good offices of the President-General in the first place.
This brings me to the next, bigger question. Are these judges, for whose reinstatement such a movement is in action, wedded to the ideals of justice and upholding the law and the constitution, or are they, like the average professional that we see around us, and ourselves are, believe in doing the 9 to 5 routine and heading back home to enjoy all the perks that come with their positions? The cars, the mansions, the butlers etc? For if they are just time-servers like the rest of us, and only come to work a day at the office, i.e. if that is their psychology, the only difference between them and the judges that have taken the oath under November’s PCO is that of names. For if these latter ones are beholden to Musharraf, the former ones, if reinstated, will owe a debt of gratitude to one Mr. Nawaz Sharif. And anyone who was alive in the late 80’s and the 90’s in Pakistan knows that that cannot really be a good thing. Nawaz Sharif is being hailed all around for taking a principled stand on everything, from the judiciary to democracy, which is one factor that has given his party unanticipated electoral success in urban Punjab earlier in the year. I personally know people who flew all the way from Karachi to their hometowns in the Punjab to vote for Mian Sb. Notwithstanding the question as to whether he really is firm on principles this time around, or is just finding it politically beneficial to go with the general mood of the people for the time being, Nawaz Sharif and his cronies are children of the establishment, through and through. In fact, they’re children of the worst military regime in Pakistan’s history, that of the humble Momin, Zia-ul-Haq. They are people who came into the political mainstream on the backs of military intelligence and ISI, and continue to truly represent only a certain segment of Pakistani society, the industrial-business elite, insofar as their party structure is concerned. Nawaz Sharif himself is beset with an upstart industrialist mentality which dictates gauging every action in the narrow prism of profit and loss. Is his commitment to democracy and an independent judiciary only a part of his personal vendetta against Musharraf for overthrowing his government? Will his resolve to work towards institution building only remain strong till the time the General’s ousted? These are questions only time will answer because his history does not support any such hopes. I have to hand it to the Pakistani public though. Even after all the disappointments of the past, their faces had this strange gleam of hope on the morning of the 19th of February. It made a cynic like me wonder if such undying optimism ought to be celebrated or lamented. What I do lament, however, is our collective short memory, and inability to learn from experience.
Our civil society, which is just a more ‘civil’ term for the upper and upper-middle classes, seems to have decided that capitalistic democracy is the panacea for all our ills. However, this strata of society, which includes myself, seems to be more confused than anything else. A friend of mine, a successful corporate banker, and quite active in the movement for the restoration of judges as a part of the Direct Action Committee, attending rallies, shouting slogans, distributing propaganda material, praised the principled stand of the judges and of Mian Sb’s party in their fight against the dictator. Five minutes later, he spewed some pearls of wisdom on corporate success, saying that the first principle of survival in this world is, and I quote, ‘to screw the other before he gets a chance to screw u’. And the first thing that came to my mind was, isn’t that what Musharraf tried to do? Anyway, it’s been more than a month since that happened and I’m still pondering on the apparent dichotomy of principles, and how it plagues our class and my generation. In this respect, though, the media has had a very significant role to play. Like the clergy of medieval Europe, it is the fourth pillar of the state today. I draw such a comparison because the potential for demagoguery appears equally enormous in both cases. In Musharraf’s economic boom, besides banking and telecom, media is the only industry that has proliferated. And now, as is natural, it does not know what it ought to do with itself, since quantity has effectively inundated quality. So, in between the Indian style soaps to pander to the tastes of the wider market, rather than restricting itself to keeping the public informed of facts so that it could draw its own conclusions from them, it has taken to opinion-forming. There is a ‘breaking news’ and every channel has a different story as to the actual happening. Old-timers sit together in talk shows and analysis programs and tell the public exactly what they ought to be thinking. And that’s what the public is doing. Everybody believes in the righteousness of the lawyers’ movement because some droning journalist on TV said so. Nobody seems to be thinking out loud on national TV that if these judges are restored would the lawyers, and especially the frontline leaders in the lawyer community, never try to capitalize on their blood and sweat? Will that not leave the superior judiciary in the same sort of fix that it always has been in? Earlier it used to do the bidding of generals and bureaucrats. Now, it will owe a lot to bar councils and senior lawyers, and you never know what new direction that may lead us into. Everybody believes in the sacrosanct nature of the freedom of speech, not realizing that that also gives a natural edge to the one who can shout the loudest.
Finally, let me bring forth what little I know of the justice system in Pakistan. I will restrict myself to the rural areas since I have little knowledge of how stuff gets done in the cities. This in itself is saying a lot since 70% of Pakistan is still supposed to be rural. To the rural poor, the first adjudicator, or dare I say, the scribe of their destinies, is the Thana incharge. Whatever he writes in his FIR is the basis of all litigation afterwards. Therefore, this man wields tremendous power, and consequently, enjoys tremendous opportunity for making money. This is where the poor soul who got himself involved in such a messy business as seeking justice is bled for the first time. If he gets lucky, he’ll only get away with paying a few thousand bucks in bribes. Else, if the SHO likes his daughter, he might have to offer her up to make sure that the cattle that are his livelihood are returned safely from the robbers who took them. Also, if he is on bad terms with a local influential who is on good terms with the police, or the offending party, he might end up getting charged for a crime himself and might find himself tasting the hospitality of a rural interrogation office. There are a million possible combinations wherein a poor man seeking justice may have to sacrifice his belongings, dignity or honor and I could possibly not list them all. Let’s just say, to get the process moving effectively, u need to have money, contacts, guile and zero self-respect. From here, the process moves into the courts. Here the baser things are truly not en vogue, since judges are educated, refined types, and only work for money, or the right person calling them up. This is where property disputes can take more than a decade to sort out, and where murderers and rapists are let free based on how well they are connected. Although, it must be granted that the level of corruption decreases as you move up from the district courts to the provincial high courts and then on to the supreme court, isn’t the corruption at the lower end, the end closest to the civilian, the deadliest? Because it is here that lives are made or broken. A poor man, whose son’s murderer is acquitted in a district court, may not have the resources or the will or the physical strength to take the case to a higher court. He may just do what people in our parts have been doing for centuries: leave it to God’s ultimate judgment. All the 60 honorable judges have passed through this very system. I do not attempt to associate any sort of corruption or malpractice with them and I am very sure that they are all men of great integrity and moral fortitude. But all of them have passed through this system. All of them know what goes on in the peripheries and at the lower levels. In this entire 14-month struggle, has there been a single cry for reform? For actually taking any steps towards changing a system in which justice is bought and sold like a common whore? Will this system where the SHO of a thana somewhere in some long-forgotten tehsil of a district in the middle of nowhere earns at par with any corporate fatcat, profiting on the misery of the poor, be allowed to persist after everything is ‘set right’? Has any leading lawyer raised a voice of protest against this system in his speeches on freeing this country from the clutches of dictatorship? Or do they assume that with Musharraf gone, everything will correct itself from top to bottom? I am very sorry but people assumed the same about Ayub and Yahya and Zia, and nothing happened. And it is actually sad to say that it feels to me as if this entire struggle has become a battle of egos centered around the basic notion: ‘give them their jobs back’ and ‘I want my job back!’ Hell, at the risk of sounding repetitive, if you’re only going to do what you did before you were kicked out, and what the PCO judges are doing now, might as well stay out. Most I can do is condole with you over loss of perk and privilege. For I feel that we have had enough of a top-down approach in this country. It’s time that we started bottom-up, towards a system in which everyone matters, where justice is just blind, not deaf. Laws that are not uniformly applied at every level of society encompassing the entire body politic of the nation are not worth the paper they’re written on. And all well-suited gentleman who like to fancy themselves the custodians of law and its actual spirit, should also have the courage to fully understand what is truly engendered in such grand titles, and that it actually means a lot of responsibility to each and every citizen of a country in much need of justice, not just posturing to effect a favorable balance of power at the top. And suffice it to say that the top, from the perspective of the people, is way out of reach. Everyone in this country aspiring to do great things at the top, the politicians, the lawyers, the generals, the media, all of them have had their fair share of trying to win the hearts and minds of people. And even when the people have demonstrated vigorous willingness to be won over, they have been let down. Now would be the perfect time for a revolution of hearts and minds, a complete change in mindsets and attitudes, and in deference to an old national habit, it would be much better if that transpires top down.
To keep on repeating ‘how dare a dictator do that?’ is like oversimplifying the issue because then one would have to make an honest inquiry into why the dictator is there in the first place, and soon enough, not much of our ‘civil’ society or the civilized world, will be able to avoid blame. Remove the dictator by all means, but also make sure that the restoration of the judiciary does not simply equate to professional reinstatement. For I feel that justice, rather than any institution that claims to administer it, is the solid base upon which the edifice of state and society ought to be erected. But it will continue to remain an illusory ideal till we can effect a change in mentalities. I believe that that is what our brightest minds should be working on. The nation has had enough of protracted wars of wits and egos, even if the realization of that has not yet dawned fully.
