Dr. Umar Khan
Dr. Khan heads a Lahore based Think Tank. 23-7-07
Judicial triumph and the patriots duty
“It is the duty of every patriot to protect his country from its government and the rulers” said Thomas Paine, a prominent figure of two of the most important events of recent history, American independence and the French Revolution. Strange as it might sound to Pakistanis who have been forced to equate patriotism with supporting the government, it is very true and more so for Pakistan. Our governments have shown an overwhelming predisposition to get out of control and must be reined in for theirs and country’s protection. How effectively we the Pakistanis have performed this duty of ours needs a closer look.
The Pakistanis have been seriously negligent about this duty and suffered dearly because of this. In 1954 there was no resistance when democratic institutions were first attacked by the civil military bureaucratic alliance. Poor Maulvi Tamizuddin was quite lonely approaching the courts and naturally got rejected. We failed to resist when Ayub Khan dangerously assaulted the constitution and democracy. He mortally wounded the national cohesion whose results appeared soon after in Dhaka. The courts again gave way. This tragic history was repeated with Yahya, Zia and now Musharraf with near identical conditions and results although viciousness of the attacks kept on rising. In all these instances the civil society failed to rise to protect the constitution and the country and the courts sided with the constitution breakers with two ineffectual exceptions.
During all this time the civil society kept on blaming the judiciary as a whole and different judges in particular for its ills while ignoring its own responsibilities.
Before blaming the judiciary for our democratic problems let us see the response of the civil society when faced with challenges. The people of Pakistan repeatedly failed to respond effectively against attacks on their interests. This previous apathy became clearly evident when the civil society rose to protect its judiciary from the whimsies of the government successfully by getting a revolutionary and assertive judgment from the same court that was responsible of many judgments that might not be admired by the democrats or the international community. Blaming others for your own inadequacies is not only erroneous but worse, it does not work further prolonging or indirectly supporting the longevity of wrongs it causes.
Twice in our history the courts labeled Generals usurpers and wrong but both times it was after they had lost power. The Supreme Court criticized Yahya’s takeover after he was arrested by the Bhutto regime and Zia was taken to task after he had died in an airplane crash. No wonder Zia’s son, our federal minister, clearly pointed out that the courts had given the decision after Zia’s death inferencing that they could not dare do it with him in power. Although this statement might be bordering on contempt, the society not even tolerated it rather elevated him to very high offices.
Unfortunately the story of the civil society’s apathy and indifference does not end here. It repeatedly failed to protect its judges who stood up for democracy. The Generals punished non-compliant judges in Bhutto’s case openly. Then many judges were ousted in a group by Zia, which met negligible resistance if any, by the society. Recently the General who does not tire criticizing the ex PM for unceremoniously removing a CJ, removed many himself while illegally detaining some.
Detention and humiliation of judiciary by the generals has become a kind of routine here. This situation was well phrased by the retired CJ Nasim Hassan Shah who acknowledged in a TV interview that judges cannot take a stand against Generals because generals can fire them from their jobs. Judges who responded to their conscience and refused to toe the line were sacked becoming irrelevant while the civil society quietly succumbed. No one stood for them neither they were acknowledged or appreciated.
In contrast the fate of the compliant judges was nothing short of superb. Our courts are still displaying their portraits with honor and dignity. Most of them finished their terms and enjoyed lucrative postings after retirements. The civil society gave them respect and their descendants proudly mention their names just like the proud descendants of the constitution breaking Generals.
It should not be difficult to see the message we have been giving to our judges; comply with Generals demands or suffer. The civil society is compliant and cannot or does not stand for its rights. Still worse much of the prominent members of the civil society automatically start working on getting maximum benefits for themselves through the generals. Success as a judge comes by pleasing generals not the people. In these conditions we are fortunate to have judges who still resist constitution breakers at a heavy personal cost.
It is strange while doing all this we routinely blame the judiciary for not standing against the usurping generals. Although it is not possible to condone the judges who lent legitimacy to generals at the cost of constitution, but they alone cannot and should not be blamed. Let us face it they do not have any armed force at their disposal. Recent months further proved that highest judges can be humiliated by petty officials on the streets. They have to rely on the force of the institutions whose heads are usually the ones breaching the constitutions.
Apart from the brute force it is the force of reason, law and the public opinion that makes the courts strong lending it strength. For this strength to exist, the civil society must be mobilized ending its chronic lethargy and apathy. Judges are also part of the society having the same requirements as any other common man. They might be better than the most but expecting all of them to be exactly perfect would be an unreasonable hope. With the weak and apathetic civil society like ours I doubt even if the European or American judges could give bold and independent decisions they are known for. It is always tough, nearly superhuman to stay calm while someone is holding a gun at your head. Unfortunately our judges had to work under these conditions for most of the time.
On July the twentieth our judiciary demonstrated its courage and unity very clearly but it was after a very strong and unexpected movement led by the lawyers but consisting of all facets of the society. The civil society finally woke up and made its voice heard. It finally protected its country from the government and the rulers. Its strength ultimately prevailed making the civil society ecstatic but it must realize that they have just won a battle. The war for rights is yet to be won. They have all the rights to be jubilant and deserve applause but cannot afford complacency. Institutions like judiciary or media can help them but cannot fight for them. Rights are never doled out and have to be seized specially in a not so developed society like ours.
We must realize that we owe it to our country and the future generations to protect our country from its governments and rulers. While guarding our achievements jealously we should strive for more, much more. Like all worthwhile things in life it would not come easy requiring us to stand for our rights and confront powers usurping them, which can be formidable. For this we must mobilize our society making it more responsive and less compliant. We should also protect our judiciary and media actively to make conditions conducive for them to show their brilliance and metal. We the middle classes have to do it as we have to live here unlike the rulers who are ready to flee with foreign nationalities in their pockets. Failing is not an option and we must build on our recent achievements. Only by grabbing our rights and freedom we can solve our problems and get the respectable place in the society of nations we deserve.