"˜Judges denial is an asset for state'

By Amjad Malik

On 3 November 2007, 70 odd judges of the superior judiciary of Pakistan showed mussels and risking their livelihood, bread and butter and liberty refused to bear allegiance to the outgoing General of Pakistan whilst they were considering an important decision as to whether a man with the gun can participate in elections for the top slot as head of a state of Pakistan. Those judges have shown courage and wisdom to curb the norm of military run democracy and all now rests on the politicians to translate the voice of the civil society, media and judiciary into action. They must not compromise this sacrifice on the altar of politics. If they can achieve that goal of establishing the rule of law and restore basic democratic rights of people to choose where independent judiciary monitor and media operates freely, then i congratulate the nation of 160 million people that those will be the last days of military intervention in Pakistani politics.

Alas that stance is yet divided and if politicians promote and shelter the law of necessity in political classes now, then no judge in future will ever risk losing the perks and luxury by refusing to accommodate the law of necessity which we claim a lot to have buried with every going decision in Supreme Court. I agree that no one has the ultimate key to solve the crisis we are in, but everyone agrees that elections under emergency are virtually impossible where media is gagged and highest judicial officers are in detention and most of the mobile lawyers are incarcerated. Election is an expression of free will as to who should govern on the name of people as they desire and in the circumstances where the will of masses is terrorised, bulldozed and detained, it's difficult to get the feeling of fairness. I must say that return of exiled is a good omen for Pakistani politics but time is ripe than opening back door channels of secret negotiations with any one particular party and damaging the system further, military leader must initiate open and transparent public discussion in the supreme national interest with all political parties at a round table ensuring presence of all heads of parties to discuss how a credible free and fair elections can possibly be held which meets minimum international standards.

Those consultations may discuss the mechanism of inducting an independent and reliable care taker set up possibly non PCO judges along with powerful election commissioner who will impartially hold elections. At present the set up consists of a major component of people with aspirations and sympathies with pro General faction except one or two, and above all the activities of the so called Attorney General must be stopped at once who is damaging the system further with his dark tricks almost every other day. I think judges issue is very simple to resolve by inviting them all to take oath under 1973 Constitution which is an easy solution which do not require any amendments in laws and as the judge's will is not known when they are detained but it is only visible from their judgements. I must say all judges who reach to that higher court are good judges who have spent their life time in practising and preserving rule of law and we must preserve them too, and we should not waste them as they are our honour, pride and an asset of the country. The top minds of our state needs consultation with all political parties as to how the independence of judiciary can be secured as currently the ruler's actions negates his claims that he believes in justice, fair play and free media.  

Only a fair and independent judiciary can guarantee holding of a fair election(s) in Pakistan. These elections can't be held fairly if the head of judiciary on one day is begging justice in his own court, and the other day he is detained in his bungalow with his family and other colleagues. What a picture the regime is showing the whole world of the state of play at judicial front, and the humiliation the masses feel over this issue is visible from their wider condemnation. These suggested actions are not imminent and may not happen at all as our leadership lack political will and have no roots as well as  wisdom which needs to solve the crisis they are they are following the advice of already condemned in every nook and corner.

The sane advice is to preserve what is left as we all are Pakistanis and ever one is amongst us, let's not demolish what we have built ourselves and let us not make our country a joke here and abroad in every one's eyes. I am pretty shocked when one of the Indian Doctor friend said the other day, "˜feel free, now we will not attack you', i asked why is that, he replied, "˜we do not need to, as you will die fighting yourselves'. That is an eye opener. The regime and all the stalwarts must realise the tenacity of the situation we are in, and our responsibility towards state requires our firm action and a word for outgoing General Sahib is if Pakistan is first, then why are we so scared of taking to each other, and why Pakistani media, Pakistani lawyers and human rights activists, Pakistani judges and Pakistan as a state is hostage to the will of one man, the nation needs an answer, sir? And why these fat cat advisors are not telling you the truth that the time is up.

Amjad Malik is a Solicitor-Advocate of the Supreme Court (England) and a life member of Supreme Court Bar Association as well as Vice Chair of Association of Pakistani Lawyers (UK).

27 November 2007