October Issue 2008
Interview: Aitzaz Ahsan
“It is a tragedy that nothing seems to matter — no signature, no oath. It is astounding and is a measure of our political system”
– Aitzaz Ahsan, President the of Supreme Court Bar Association
Q: What has the lawyers’ movement achieved?
A: There are two aspects of this. If we consider that it set out to achieve the actual physical reinstatement of Iftikhar Mohammed Chaudhry as Chief Justice of Pakistan, then obviously it has not achieved its goal and it is a movement that, to this point of time at least, has failed. However, the movement has achieved major successes: The reinstatement of the Chief Justice on July 20, the weakening of Pervez Musharraf’s authority at a time when the political leaders were in exile and no one in the country was taking up the challenge, the return of the political leadership to Pakistan, removal of Musharraf’s uniform and the holding of elections, the signing of the Murree Declaration, payment of salaries to deposed judges and reappointment of judges; never before [in the history of the country] have judges come back. Importantly, it also established that Pakistanis across the board and the country have a conscious stake in the issue of the rule of law and constitutional governance.
Q: People are disillusioned; the movement has had setbacks. Some say it’s gone as far as it can and is now over.
A: The movement is not over. It’s slowed down; it’s Ramadan and the Supreme Court Bar Association (SCBA) elections are in October. No movement can move at the same pace, with the same vigour and sustain itself indefinitely. We spotlighted the issue, showed the world and the government this is a popular demand; we sought to embarrass and isolate the government into reinstating the judges. It’s important to acknowledge that the lawyers’ movement has thrice achieved its ultimate goal of reinstatement. It may not be physically so, but by the written express and declared promise by the leaderships of the PPP, PML-N and their partners.
Q: Then why the impasse?
A: The current impasse is that, despite the fact that the reinstatement was not only agreed to, formal documents were signed, the judges have not been restored. One party has overtly gone back on the signed word — and that is the Pakistan Peoples Party.
Q: The judges have taken fresh oaths and the PML-N is lukewarm.
A: Indeed the judges have gone back. The PML-N may appear to be lukewarm but the frustrating issue is, what do you do beyond getting a signed and public commitment?
Q: Has the return of the judges damaged the judiciary?
A: These judges were stellar; heroes of the movement, people had enormous trust in them. The lawyers came out for them, bore the scorching heat of summer, were beaten, bludgeoned, tear-gassed, burnt, shot, had acid thrown at them, took prison, death cell and solitary confinement in their stride. They never asked these judges to come out on the streets. They willingly and gallantly preserved their dignity and integrity throughout. It is disappointing that these people, who had been protected, took oath. The issue is stark and simple. If you believe the November 3 actions were illegal and unconstitutional, then you can’t take the second oath, there is no question of reappointment, because you were never removed from office. Taking oath implies accepting the legality of those actions and that one man can arrest and dismiss superior court judges. An outrageous assumption but it is implicit, and that is unfortunate.
Q: In that case, why didn’t they take oath earlier?
A: I don’t know, they held out for a long time. The oath has taken the pressure off the government and that has hit morale more than the slowing down of the movement. And as for damage, there was the perspective that these were brave men who could stand their ground and were not susceptible to temptation. I hope these judges remember that their reappointment is owed to the pressure of the lawyers’ movement. And, although they have taken oath, they remain honest to the values of the movement and restart their careers as brave, fearless and independent judges.
Q: What are the future goals of the movement?
A: The goals remain the same — the reinstatement of judges, including the chief justice. The fact that legislators remain committed to the position that the November 3 actions are invalid. This is crucial because November 3 sets a precedent for a one-day martial law, where another military adventurer can come, arrest everyone in his way, get a rubber stamp Supreme Court to legitimise his actions and change the constitution — all in a day’s work.
Q: Why don’t political governments understand that?
A: They should. It’s in their interest that they understand it and create conditions that avoid such situations from reccurring. We want to see a stable democratic parliamentary system. We are conscious of the fact that you cannot have an independent judiciary without independent-minded judges, and you cannot have a stable parliament and democracy without an independent judiciary.
Q: Can the lawyers press for systemic judicial and legal reform?
A: There is a long-standing demand from lawyers and bar associations that bar associations be inducted into the selection process of judges. But that’s not the issue here. I don’t think the bar associations should dignify the subversion of the constitution and judiciary by being inducted into collateral or subsidiary roles.
We want the parliament to do its job. We will be a pressure group, but after we have achieved what we have set out to achieve, I am sure there are people who would like to entice us into discussing legal reform and constitutional packages.
Q: What are the challenges to your movement?
A:The challenges have been enormous. The lawyers as a body, are a diverse and plural movement in every sense of the word. Leading these diverse elements has probably been the most taxing period of my life. Despite the diversity, it has remained united. Now that there’s a parliament with the authenticity of the democratic process, the focus has shifted to the parliament. Despite the Murree Declaration no one, not even the PML-N, has introduced a resolution. The issue is alive; a resolution should be moved and heads counted.
Q: Why won’t the PPP restore the judges?
A: Thrice, Mr. Zardari signed commitments to do so, but hasn’t. I do not know why, because I believe that the signed and solemn word ought to be honoured, there is no justification in not reinstating.
Q: Is the PPP cognisant of the damage this has done to their credibility?
A: They think the elections are far away and people will forget and other issues will intervene. Despite this, the lawyers affiliated with the PPP continue to be an integral part of the movement.
Q: Will the PML-N be hurt by their cooling off on the issue?
A: Anyone who moves away from this will be hurt, particularly the PML-N — they required all their candidates to take an oath pledging to restore the judges. It is a tragedy that nothing seems to matter — no signature, no oath. It is astounding and is a measure of our political system.
Q: What will the Chief Justice do?
A: I do not think he will give up his claim, at least not until the parliament validates the actions of November 3 by passing the 18th Amendment.
Q: What will you do, will you go back into parliament, court?
A: For the present, I will be an extra-parliamentary back-bencher. The PPP will start hearing our voices also. I am unlikely to go back in this tenure of parliament, but hopefully next time. I won’t go back to court as long as I am president of the SCBA. I have taken a position as its president, so I have imposed this restriction on myself.