Cowasjee: Who can tolerate an independent judiciary?

By Ardeshir Cowasjee
Sunday, 15 Mar, 2009

‘The reality is that neither Nawaz nor Zardari can tolerate free judiciary.’

‘The reality is that neither Nawaz nor Zardari can tolerate free judiciary.’

Now, what with the word ‘disintegration’ being bandied about in the media, the ‘leadership’ we suffer must bear in mind the words spoken by Mohammad Ali Jinnah, who they still profess to still revere.

Over 61 years ago, he firmly told the members of his constituent assembly, three days prior to the birth of this country: ‘…you will no doubt agree with me that the first duty of a government is to maintain law and order….’

Well, it has become more than abundantly clear to the nation and to the world that this government has not the faintest clue as to what constitutes either law or order — that is not to say that any previous government was not afflicted with the same failing.

Another blinding failure is the absence, since the early 1950s, of a truly independent judiciary. For, if the machinery of state is to impose and to maintain law and order, there must be upright and independent-minded men or women sitting on the benches of its courts. Law and order and an independent judiciary go hand in hand and one cannot exist without the other. With what we now have both in government and in the judiciary, hope for law and order is a far cry.

The head of state has been busy appointing judges, all of his choice, to further the subservience of the judiciary to the state. He, at least, has seldom made noises about his desire to have an independent judiciary, whether by oversight or merely because he thinks it would be redundant. On the other hand, we have the Mian of Raiwind, formerly of Lahore, now trumpeting his overwhelming desire for an independent judiciary and his avowal to never surrender until he has put back on the judicial benches those judges dismissed by Musharraf when he lost what was left of his mind on Nov 3, 2007.

The reality is that neither man can tolerate an independent judiciary, as to do so would be quite contrary to their respective political natures. Such has been the case with all those in the top notch for over five decades. Nawaz Sharif’s 1997 physical assault upon the Supreme Court cannot be forgotten or forgiven, as cannot his earlier wish to imprison a sitting chief justice of Pakistan for one night so as to impress upon him who was the boss-man calling the shots. His principled and moral stand, as he terms it, has to be highly suspect.

As husband of the prime minister Asif Ali Zardari is on record as having offered a Supreme Court justice the office of chief justice of Pakistan providing he handed over an undated letter of resignation.

Now we have President Zardari trying to emulate PPP founder Zulfikar Ali Bhutto who extended the tenure of his then chief justice by pushing through the sixth and seventh constitutional amendments. Zardari has been busy attempting to find ways and means to keep on Chief Justice Abdul Hameed Dogar who is due to retire in a matter of days. It is not clear how he can do this — but it is worth a try. If Nawaz Sharif is telling the truth, Zardari offered to make a ‘deal’ with the Brothers Sharif whereby he would see that a favourable verdict was handed down in the Sharif disqualification cases if they agreed to agree to the retention of Dogar.

This government, now tripping over itself, is run by a party which never ceases to proclaim that it is a party ‘of the people’, and thus democratic. Is there not one member who can at least admit that it is neither ‘for the people’ nor has it any credentials that anywhere approach the democratic? Its very basis is highly undemocratic. It has no elected leadership. It is led by a man who was allowed to hijack the party in the name of his assassinated wife within two days of her funeral with the shameless party-people remaining supine. In the good old days of ZAB, self-professed socialist and democrat, there were many amongst us who consistently claimed that the party was more inclined towards the fascistic. This present-day PPP, since Feb 25, has proven that our claims had much foundation which has endured over the long painful years.

With the aid of a pliant judiciary, the head of state has wilfully and knowingly created chaos, disrupting the lives of millions of citizens by its greed and grabbing tactics — the object up for grabs being the government of Punjab. The party and its leader have consolidated themselves in the Senate, the National Assembly and in three provincial assemblies. It wanted a clean sweep.

To get it, they, or rather the supreme leader, used the judiciary. Evidently, the choice of Justice Dogar as Chief Justice of Pakistan to succeed the dismissed and contentious Chief Justice Iftikhar Mohammad Chaudhry was part of the insidious and completely contemptible ‘deal’ engineered by the US and agreed to by the then president, Pervez Musharraf, and Benazir Bhutto before she was removed from the scene when the ‘deal’ was transferred onto the skew-whiff shoulders of Asif Ali Zardari.

Musharraf put his trust in Benazir Bhutto and in those who then were his ‘friends,’ the Americans. His greatest mistake was to put any trust in Zardari, when asked to do so by the friendly US after the Dec 27, 2007 disastrous event. And now, perhaps, the US with its need of a stable, secure Pakistan has realised that it also made a monumental mistake in ignoring past records and the calibre of its chosen anointed successor to Benazir.

That it has had a rethink is evident from the news projected on Friday, if accurate, that chairman of the US Joint Chiefs of Staff Admiral Mike Mullen had stated that Gen Ashfaq Kayani had informed him that he did not wish to take over the country, that his army wished to keep the situation at arm’s length and press for a political resolution.

What is now happening to this country can in no way be dignified as being compared to a Shakespearean tragedy, as has been done in certain media circles abroad. The players at play in our devastated fields cannot in any way match the calibre of characters portrayed by The Bard. The current scenario cannot even be likened to a Gilbert and Sullivan operetta, light and frothy as are their characters, our players being dark and devious, adept at the art of mendacity, double-dealing and turpitude. (Dawn)