May issue 2002
Interview: Justice (retd) Tariq Mahmood
“Either I could lie to save my job, or tell the truth to save my character”
– Justice (Retd.) Tariq Mahmood
Q. Your resignation from the Election Commission and the Balochistan High Court generated much controversy. Would you comment?
A. I was appointed by the President of Pakistan along with three other judges from all four High Courts to the Election Commission in February, for the general elections due to be held in October. When the government decided to conduct the referendum and the task was assigned to the Election Commission, I resigned as I believe that the EC should not be involved in such an unconstitutional act.
Q. What is your objection to the referendum?
A. I have no objection to the referendum, which is constitutional if it is held on national issues, not for the election of the President, for which there is a set procedure in the Constitution. I did not agree with the holding of this referendum. And I did not want to blacken my face by having a hand in this unconstitutional affair.
Q. Were there any differences between you and the Chief Election Commissioner?
A. Not at all. I have no personal differences with Justice Irshad Hasan Khan, I hold him in high regard. Obviously on the referendum issue, I differed with him on principle.
Q. You have resigned as a member of the EC on the referendum issue, but what about the PCO you took oath under, in which you pledged loyalty to the military government?
A. First of all, the Supreme Court validated the PCO in its judgment in the Syed Zafar Ali Shah case. Secondly, the PCO never came in the way of my duties during my 17 months service as a judge. I never considered the PCO as a sword of Damocles while writing judgments. If someone has to work, there are always many options open. I will quote one example: I heard a famous case regarding the local bodies elections and the defendant was arguing that the High Court is not competent to hear the case, but I accepted the writ petition. If I had been influenced by the PCO, I would not have accepted the writ.
Q. According to official quarters, a decision had been taken to get rid of you, so you were given the option of resigning, otherwise you would have been sacked. Is this correct?
A. No, I was not asked to resign, but there was tremendous pressure on me from the government to withdraw my statement. I have taken an oath not to lie, if I had withdrawn my statement, it would have been tantamount to lying. There would have been no justification for me to continue as a High Court judge.
Q. There is a perception that your resignation was politically motivated….
A. I have never been associated with any political parties and I am honestly telling you that there is no truth in this. Yes, after my resignation I received a number of messages from politicians and lawyers appreciating my action. I have never even met the majority of them. I acted according to my conscience.
Q. Why did you attend the lawyers’ protest gathering against the referendum?
A. I did not participate in the protest gathering against the referendum. Obviously I visited the High Court and district bar rooms after my resignation. When the Bar President and other lawyers were arrested, I went again. I have received a number of requests to speak from different Bars like Peshawar, Pindi/Islamabad and Lahore, but I have regretted them all. Some even sent me air tickets, but I avoided going in case it gave the impression that I wanted to gain publicity. Although my home has almost become like a prison, I am still keeping away from such activities.
Q. Did you have the option to continue as a judge of the High Court after resigning from the Election Commission ?
A. Actually, I wanted to continue as judge and that was why I silently resigned from the EC instead of making it public. The EC issued a press release that due to the many pending cases before me, I was replaced by another judge from the Balochistan High Court on the advice of the Chief Justice. So when I was contacted by the Dawn and BBC, I had to give them the true picture. But I was clearly given three options: firstly, to disown my chat with the press; secondly, that the Election Commission would do so and I would not hold it in question, or thirdly, that I should quit. Under these circumstances, what could I have done? Either I could lie to save my job or tell the truth to save my character. And that is what I chose to do.
Q. What are your views about the constitutional amendments the Musharraf government intends to implement?
A. In accordance with the Supreme Court judgment in the Zafar Ali Shah Vs General Pervez Musharraf case, no amendment can be made in the salient features of the Constitution, which includes the parliamentary form of government in which the Prime Minister is all powerful. If an amendment is to be made to curtail the powers of the Prime Minister, reducing him to a rubber stamp, then the country will suffer and this will be in violation of the Supreme Court decision. Historically, whenever a Prime Minister has attempted to assert himself, he or she has met the same fate that Mohammad Khan Junejo did. In my view, the Supreme Court has given the Chief Executive the power to make amendments in the Constitution to achieve his government’s agenda, which he should have done during the last two and a half years. Now the question arises, with only five months left of his tenure and for the general elections, does the country need any amendment in the Constitution or not?
Q. The Election Commission has clearly stated that the Chief Justice of the Balochistan High Court asked for your withdrawal as a member of the commission through a letter dated April, 5, 2002. Is this correct?
A. I am sure, no such letter from the Chief Justice existed when I resigned on April, 6, 2002. Had the Chief Justice asked for my withdrawal, then the federal law secretary would not have sought my consent regarding my decision to resign.
Q. Did you ever think that the government would take such serious note of your resignation?
A. Definitely. I was apprehensive that I would face serious consequences, but I never expected so strong a reaction on the government’s part. My resignation was related to the Constitution, so I thought that ultimately sense would prevail and they would not go to the extent that they have.