Pakistan: An adulterated second coming

Mir Adnan Aziz
The Frontier Post

Mir Adnan Aziz Alexander Hamilton, eminent lawyer and most influential of the United States founding fathers, famously said: ' The independence of judges once destroyed, the constitution is gone and it is a dead letter. It is a vapor which the breath of a faction in a moment may dissipate.'

Justifying his November 3 action, President Musharraf had blamed the judges of derailing democracy, judicial activism and spreading anarchy. Had the justices been rubber stamps, validating the Presidential decapitation of the Constitution, this could have been true. The fact that they were poised to do otherwise, earned them the ire of a not too magnanimous individual. Denial of justice is historically the instrument of tyrants and dictators.

The proclamation of emergency was portrayed as not being from a President but rather a Chief of Army Staff. The impression given was that he enjoyed total support of the army top brass and the institution itself. The fact that orders were implemented was not charisma, leadership, statesmanship or infatuation for the man; it was rather a trait ingrained and embedded in the military psyche - discipline. Gen Kiany's disengagement blitz from politics and civilian matters was and is a feat the nation is thankful for. It also is a testament to the belief that the army as an institution truly believed that they had been forced into a morass, it's image bruised and battered as never before.

Apart from its frequent forays into civilian governance, the army in principle (albeit these last years as a forced servile stooge) has set aside Washington's unsolicited counsel on matters of national import. Gen Zia stood up to both Russia and the US when the two had arrived at an Afghan settlement seen detrimental to our own national interest.

Were we also not under tremendous pressure with threats and desperate pleas combined to prevent a nuclear Pakistan? The fact that we withstood that pressure speaks volumes for the then civilian (oft maligned) and military leadership. We also had a cacophony of presidential telephone calls to the one of a Deputy Secretary of State which saw our spineless post 9/11capitulation.

Unfortunately we made a convenient scapegoat and chose to incarcerate the very architect of a nuclear Pakistan, ostensibly for his own good! The winds of change and freedom should benefit Dr. A Q Khan too, and given his frail health, at the soonest. It was, tragically, for the first time in these last eight years that we became mindless American proxies; totally and blindly forsaking our own to protect alien interests.

Alexander Hamilton paraphrased this capitulation as: A nation which can prefer disgrace to danger is prepared for a master, and deserves one.... Of those men who have overturned the liberties of republics, the greatest number has begun their career by paying an obsequious court to the people, commencing demagogues and ending tyrants.

The doing away of the 'unwanted judges' was a criminal travesty of justice visible to all. Out of the public eye, other steps were under way (tragically still are) to complete the subversion of the judiciary. With the judges, lawyers and media bringing the case to the nation, the people gave as clear a verdict as any jury could pronounce. The overwhelming majority saw the President guilty on yet another count.

The lawyers were never given a privileged position to change our judicial system, or spread 'anarchy'. It was the blatantly audacious act of the President (with American approval) that was unacceptable to all – the lawyers, judges, media, civil society and intelligentsia and above all, the people.

It precipitated public anger into a massively popular movement for restoration of the judges and doing away with remote controlled governance. Sandra Day O'Connor recently retired US Supreme Court judge, aptly commented, 'Statutes and constitutions do not protect judicial independence - people do.' In 1787, Hamilton wrote in the Federalist Papers, ' where powers of the government are properly separated, the judiciary poses the least threat to constitutional rights and has no physical force of its own'.

'Although liberty has nothing to fear from judiciary alone', he warned, 'it has everything to fear from its union with other parts of government. A truly independent judiciary is a safeguard of the constitution; a non-independent one a grave threat'.

Constitutional rights are always guarded through strict interpretation of law and adherence to judicial practice. This is how courts form the strongest barrier against tyranny and injustice. It is imperative that those elected differentiate between an independent judiciary and a compromised one. A society devoid of an independent, assertive and just judicial system, lapses into frustration and fear. With no forum for redressal, fear and abrogation of rights suppress individual inquiry. A shackled judicial system, a must for unjust governance, is thought to enable control of the people. It is also ostensibly done under the guise of providing protection to the very same dispossessed of justice.

The emerging scenario regarding the restoration of judges has been marred with back-pedalling and created uncertainties. The formation of a committee is a blatant ploy to further muddy the already opaque waters. What is being reportedly offered is a totally adulterated second coming of the Chief Justice.

The Pakistan 'Peoples' Party cannot afford to go against the judges' restoration on merit as it could prove to be politically devastating for them. The adopted policy therefore is, to restore them but after drastically weakening their powers and limiting the CJ's tenure. If done, history will judge this as an act of judicial subversion and all those party to it as betrayers of the people.

It is ironic that a multitude got lightening relief through the NRO. Thousands of criminal and civil cases, mostly years old, were scrutinized, recommended and summarily quashed with ruthless efficiency. The fact that individuals charged with criminal atrocities, looting and plundering got away scot-free in record time speaks volumes about our standards of moralities.

Today the judges are being treated as perpetrators of anarchy or would be saboteurs. A promised righting of a proved wrong has been transformed into an issue - all this to the hackneyed tune of an unremorseful Pied Piper. His followers would be wiser if they could only but understand where he would eventually lead them all to.

NWFP Information Minister, Sardar Hussain Babak, has written to his federal counterpart about the stereotyping of Pakhtoons. The print and electronic media plays a great part in shaping perceptions. A frivolous portrayal plays negatively, as it rightly should, on the sensitivities of a great race. As for American discomfort at peace negotiations with the Taliban, their comfort to date has translated into bloody mayhem for us. Their use of brutal force has failed to pay dividends and has proved to be a total disaster. They will not lose face (as the Chinese say) by giving peace a chance themselves.

President Bush has also 'rebuffed' his commanders' proposal to expand the war to our tribal areas. For once in his lame-duck period, sanity has seemingly prevailed. One would otherwise expect of him, knowing him as we do now, donning his top-gun garb, cruise missiles and Daisy Cutters blazing - a 'mission unaccomplished' president at his last stand.

(miradnanaziz@gmail.com)