Dr Haider Shah:
The SC did its part by issuing the right orders. If any group does not comply with those directives it is the failure of our political and civil society in getting the orders of the judiciary enforced
December this time is not only the harbinger of a new year but also marks the departure of two important players in the power play of Pakistan. The admirers of the former Chief Justice (CJ), Mr Iftikhar Chaudhry, extol his virtues while his critics only see mischief in his era. Perhaps there is a need for dispassionate analysis of such an important phase of our chequered national history. First, we have to realise that public figures, unlike Bollywood heroes or villains, are neither embodiments of spotless virtue nor a personification of fathomless villainy. Like Shakespearean and Homeric heroes they also retain human weaknesses.
No social transformation can ever take place unless enabling discourse has first been generated and popularised. When custodians of the existing power structure are challenged, it is natural that they will not be pleased. Like emperors of the bygone period, our political elite likes to be seen as benevolent distributors of livelihood to the needy. While ordinary voters sacrifice their time, energy, money and lives for the cause of democratic ideals, the fruit of hard labour is gleefully taken away by the personal buddies of top leaders. If the chief executives of the country do not abide by the law, we cannot expect the security establishment and militants to show respect for constitutionalism in the country either. To establish the rule of law, first of all executive heads have to bow before the supremacy of the law. If an order of the Supreme Court (SC) is not to the liking of the government it can use its position in parliament to render the order null and void by amending the constitution. Yousaf Raza Gillani blatantly ignored this and thus deserved to be sent home in order to firmly establish the first and foremost principle of constitutionalism in the country. Many political leaders are still frozen in the 1970s and 1990s. For the current decade of 21st century Pakistan they need a new model that is not based on feudal loyalties and massive patronage but on clean governance and sensible economic policies.
If political leaders believe themselves to be above the law, wealthy individuals also behave not much differently. Cases like that of Shahzeb Khan are important as they not only empower the ordinary people but also shake the foundations of status based social order. We must realise that the SC should not be mistaken for a team of Hollywood superheroes who can singlehandedly change everything for us while we comfortably sit on our couches playing Candy Crush types of games on social media. A social change can only happen if all stakeholders make honest contributions required of them. In human rights cases, the former CJ helped in the generation of enabling discourse. From the rights of eunuchs to the alleged killing of girls in a remote village of Kohistan, the judiciary, with the media’s support, flagged up the rights of ordinary people as an important part of our national discourse. Now it is the responsibility of civil society, opinion makers and political parties to take it further and hasten the process of social evolution.
In our country, the army and its intelligence agencies have customarily been treated as the holiest of holy cows. Men like gods, they can do anything anywhere against anyone. When Senator Farhatullah Babar, during Pervez Musharraf’s era, asked about the laws under which the working of intelligence agencies is regulated, his question was nipped in the bud by the then senate chairman. Contrary to the past, we saw for the first time the conduct of generals questioned under the full glare of the media spotlight by the former CJ. Critics point out that while the Prime Minister (PM) was sent home, no similar action was taken against men in khakis. Again, it must be remembered that the aging members of the judiciary are not Rambos or Spidermen who will go and arrest powerful criminals. Their power is wholly moral and is dependent on active compliance and subordination of all law enforcement agencies.
The SC did its part by issuing the right orders. If any group does not comply with those directives it is the failure of our political and civil society in getting the orders of the judiciary enforced. Men in uniform tend to behave as though are above the law all over the world. When the Abu Ghraib prison story leaked out, US society did not turn its eyes away. Similarly, when the story of killing a Talib captive broke out some time ago, the accused British soldiers were arrested and recently found guilty of murder charges. Courts can only dispense justice when the whole of society stands by them with its full might.
Like a Shakespearean or Homeric hero, the former CJ was not devoid of human weaknesses. It was pretty obvious that he had a strong urge to remain in the headlines. As often happens with many self-made persons, he also seemed to have an insatiable demand for protocol. No wonder his critics pounce heavily on these issues to vent their grievances. As an independent analyst, I find ‘Memogate’ and the Arsalan episode the low points of the former CJ’s era. His interference in purely administrative matters like the taxation policy or pricing of electricity was also unwarranted. However, seen in its totality, the former CJ has made a lasting contribution to institutional development in Pakistan. Exercising sensible self-restraint, one hopes that both the media and judiciary will continue playing constructive roles in helping civil society become more assertive in matters of public policy and human rights.
The article was originally published in Daily Times on 14th Dec. 2014.