This interview was conducted by Baber Ayaz on behalf of Asian Human Rights Commission. The Asian Human Rights Commission authorizes the faithful reproduction of this interview with due acknowledgements .
"…. Malik Qayyum (the sitting Attorney General) and Sharifuddin Pirzada (legal advisor to the president) had established their credentials as supporters of the establishment. They were very close to Chief Justice Iftikhar. There was a feeling that the Supreme Court (SC) is trying to improve its moral image or its public image by taking Suo Motto (taking cases on the court's own initiative) notices of popular issues including especially the steel mills case where a decision was given against the government. It was feared that with this image the Supreme Court will give decisions favouring the government on crucial petitions like that related to the President's election ….. So I was certain that we need an independent bar to keep a watch on the SC itself."
"At that time, by and large the Chief Justice of Pakistan (CJP) was very unpopular in the rank and file of the legal fraternity for the principle reason that he was very arrogant and the perception was that he dispenses justice in cases according to the face value of the counsel who appeared before him. If it was Sharifuddin Pirzada he was sugar and honey, and if the counsel was not an important figure he would be otherwise. I think he was over-zealous in clearing the back log even at the cost of miscarriage of justice. Lawyers from Karachi, Quetta, Peshawar and Lahore were given notice in the evening that your case is fixed in Islamabad tomorrow. This roster problem was agitating the lawyers. So I was ready to raise this issue with him as I think justice hurried is justice buried……."
(On sensing a reference against a judge of the superior court.)
"… first, the manner in which he (former CJ) was summoned and detained, at the army camp office. The message it sent was that the judiciary is really not an independent organ of the state and a uniformed President can do what he pleases. And by implication the legal fraternity was also helpless. Second reason was that Pervez Musharraf could not constitutionally make a judge dysfunctional. An executive order was issued, by the 'royal secretary' at 5:03pm saying that the CJ had been suspended and acting CJ was sworn in. This was a complete negation of the principle of separation of powers. Every judge would have felt insecure; all you had to do was send a reference."
" There was a wave of indignation in the manner of his dismissal and everybody I talked to from the legal fraternity said that though CJ was not a nice man but what has been done with him was not right. ….. The administration over-reacted …."
"…. this was the difference between 2000 and 2007. In 2000 when 6 judges of the SC resigned, they were also detained in their houses and prevented from coming to the SC building. But at that time the print media had not given much importance to this and there was no independent electronic media. I don't think the CJ would have been re-instated without the media support."
QUESTION : In the second Benazir Bhutto and Nawaz Sharif stint the judiciary was humiliated by both, but there was no massive movement against that. Why this time?
" Well, historically the judiciary has always been a collaborator, with the ruling elite. It has been the 'B' team of the army. It retains the old, imperial mindset that they are there to serve the government. If the president would call a judge of the high court he would probably take out his best suit, take a camera with him and it would be an event for him to remember, that he has been summoned by the president or the prime minister."
"In Bhutto's white paper that had been published after 1977 I think Zulfiqar Ali Bhutto in one of his side notes remarked, 'they will come to you for petty favours' like a plot, for a diplomatic passport, an admission for a child, a posting for a relative. So they were only part of the establishment, they had no moral credibility. If a man in uniform said something that was the law. You could sense that if there was a case involving the corp. commander or cantonment land, the judge would think that before the corp. commander says something to me I should oblige him. So I think both the legal fraternity and the civil society felt why (they had to) support them. This time the media brought to our drawing rooms a man saying 'No' to the establishment. So the image that came out was that this man has stood up to fight generals, and say that I will not resign I'm innocent."
. . . . . . . . . . .
"You see the executive ought not to shift the entire onus on the judiciary. I concede the proposition that citizen rights have to be balanced against the interest of state security. Now in England, we have the same problem but their parliament enacted a law."
"The question is where do we draw this balance and who draws this balance? The balance is to be drawn by parliament, and then the executive will implement this law. Supposing the law is that they can keep a suspect incommunicado for 7 days. Ok, so they keep me incommunicado for 7 days but on the 8th day I should be produced before a magistrate. Decision on whether the executive has transgressed the law, is the judicial function. Now, in England, after 7/7 they have adopted legislations. We, on the other hand, haven't been able to define terrorism yet. What is terrorism? What is a terrorist act? The definition we have is that which is found in the Anti Terrorist Act as something which is liable to scare the general public. The classic definition of terrorists is state terrorism, where the state uses its coercive power to repress its citizens.
"…… the international community must come up with a framework of rules. Now tell me, supposing they pick you up on a charge of national security, doesn't your family have a right to know that they have you in their custody? So the degree of accounting will be less but accounting will have to be done. The state must account for persons. When they pick you up on preventive detention it is not a substantive charge but they say we have picked him up. They don't present you before a court but at least a person doesn't disappear."
No comments:
Post a Comment