I am not a judge. Yet when I read in the newspapers that the federal government has notified that 24 judges of the provincial high courts, who did not take oath under the PCO, have 'ceased to hold office' with effect from Nov 3, my heart went out to them and also to the judges of the Supreme Court who await the same fate.
Alas there is little I can do to help any of them, despite the fact that the government's action is totally unconstitutional, unlawful, unjust, unwarranted, unethical, improper, and just plainly and simply wrong any way you look at it.
The adjudicator of last resort — the judiciary — has been besieged by the government and there is no credible institution in the country to provide relief, let alone dispense justice to these judges or to anyone else opposed to the government. The legal fraternity and civil society have reacted vigorously and sought the restoration of the pre-Nov 3 judiciary. However, the legal fraternity, though extremely active and vocal, has its limitations and civil society is not as organised. They would need the undiluted support of the politicians to achieve this objective. Ultimately, however, it is all of us, as concerned citizens, who have to ensure this outcome.
Over the years, the government has become adept at arbitrarily removing anyone who dares to withstand its pressure. I recall suffering the same fate in early 2006, when I was notified through the TV channels during Eid holidays that I had 'ceased to hold office' of chairman, Securities and Exchange Commission of Pakistan, with immediate effect. The government was then at the pinnacle of its power and I had refused to bow to governmental pressure to abandon investigations into the stock market crisis of 2005.
The notification removing me was not only improper but, like the present notification for the judges, had absolutely no legal basis whatsoever. While I did not consider it proper to go public for the sake of maintaining the dignity of the institution I had headed, I did write a letter to all policy board members and commissioners of the SECP and shared with them the circumstances that led to my removal.
I also copied the letter to the Chief Justice of Pakistan and the attorney general in the hope that they would take notice of the illegal and improper way I was removed from office. I had not sought personal vindication but had hoped that the highest judicial and legal officers of the country would take action to salvage the institutional independence and honour of the SECP. However, neither the Chief Justice of Pakistan nor the attorney general took any note of this egregious infraction of the law.
Institutions are more important than individuals. However, as a friend of mine reminded me, it is individuals who make the institutions. The judges who refused to be cowed down by the president and chief of army staff to give judgment in his favour and those who have since refused to take oath under the Provisional Constitution Order are indeed judges who have shown their mettle and who can be relied on to foster and maintain the independence of the judiciary.
They have not only been sent home; they have also been put under house arrest. In causing personal wrong to these judges, the government has in fact dishonoured the institution of the judiciary. While the wrongs done to these individuals may heal in time, the damage done to the institution will leave an everlasting scar on its face.
When Chief Justice Iftikhar Mohammad Chaudhry was sent on 'forced leave' in March, I struggled with my colleagues to preserve the dignity of his office. As a concerned citizen, I filed a petition before the Supreme Court for his reinstatement. As a concerned citizen, I also participated actively in the movement for the independence of the judiciary and the supremacy of the rule of law.
As a concerned citizen, I continued to take part in the movement for the restoration of democracy in the country — and got battered by the police while protesting peacefully outside the Election Commission on Sept 29. As a concerned citizen, I continue to struggle with the legal fraternity for the restoration of constitutional rule and the reinstatement of the independent judges who refused to take oath under the PCO, more so because as a person who has suffered governmental abuse I understand not only their personal plight but also the importance of an independent judiciary.
In his article 'First things first' (Dawn, Dec 6) Munir Malik urged the political parties to press for the restoration of the judiciary in their charter of demands, and impressed upon them that without an independent judiciary, true democracy will remain a distant dream. I join him in his plea. If the politicians choose not to speak for the judiciary today, there will be no one to speak for them tomorrow.
Let me remind them of the famous poem from the Nazi era that encapsulates the fate of all those who condone injustice: "First they came for the communists, and I did not speak out — because I was not a communist; … Then they came for the Jews, and I did not speak out — because I was not a Jew; Then they came for me — and there was no one left to speak out for me.
The government has indiscriminately arrested not only the non-compliant judges but also lawyers, students and human rights advocates as well as political and social activists. For those of us who are lucky to be free, let us speak for them before the government comes for us.
The writer, a lawyer based in Islamabad, is a former chairman of the Securities and Exchange Commission of Pakistan.
thassan@ijurist.org
Source: Dawn