November Issue 2007

“This is the Law of the Jungle”

– Qazi Faez Isa

Qazi Faez Isa is the son of Qazi Mohammad Isa, the foremost freedom fighter from Balochistan and a close associate of the Quaid, whose efforts were chiefly responsible for Balochistan joining Pakistan.

Q: Would you say that the emergency is tantamount to martial law?

A: This emergency has no legal or constitutional basis. This is something hybrid, which the constitution does not allow or permit. You could call it martial law or any name you want to give it. In other words, it is no law at all; you may call it the law of the jungle.

Q: What are the legal ramifications of the new Provisional Constitutional Order (PCO)?

A: The PCO states that the constitution is held in abeyance. The constitution does not provide for it, the constitution does not envisage a provisional constitutional order. It has zero legal or constitutional sanctity.

We must understand the special nature of the constitution. The constitution declares that each and every citizen of Pakistan, and every person within Pakistan, even if he is a foreigner, has to abide by the constitution of Pakistan. You cannot hold the constitution in abeyance. It defeats the purpose of a constitution. The constitution is not a simple law, it is the paramount law. Article 6 of the constitution says that anybody who tries to abrogate it by force of arms, or otherwise, or assists in its abrogation, commits high treason.

Q: What, in your view, are the legal or ethical limits, if any, of judicial activism?

A: The 1973 constitution is very crucial for the survival of the country. It is the only constitutional document ever to have been promulgated unanimously by each and every member of the National Assembly. Out of 200, 196 voted in favour of it. There were four abstentions, not a single vote of dissent against the passing of the constitution in 1973. In the document, the framers of the constitution provided Article 184, which also stipulated the boundaries of judicial activism. The boundaries are, firstly, that the court can take up only a matter of public importance, and secondly, one that pertains to fundamental rights. So if a wholescale infringement of fundamental rights is taking place, Article 184 enables the Supreme Court to act. This is, of course, in the larger interest of the people. For instance, if a dam that is providing water to say 10,000, or even 1,000 people, is being polluted, their fundamental rights are being violated. They may not have the resources to initiate a case against the violators, but the court can take up the matter. So it is a wonderful device. It’s good for the poorer segments of society, it protects them and it supports them — and it is very much a matter of fundamental rights. Now if I have a personal dispute with somebody, this doesn’t come into the picture at all. So, the test is fundamental rights and public importance. If the Supreme Court takes notice of a matter which does not fall within these two conditions then it can be said to be acting beyond its jurisdiction.

Q: The parameters of judicial activism set by the constitution notwithstanding, there has been a debate in certain quarters about some of the recent rulings of the Supreme Court under Justice Iftikhar Chaudhry, namely the release of the Lal Masjid militants and the order to the authorities to pay blood money to the families of those killed in the operation on the masjid. In light of the extraordinary circumstances prevailing in the country, how wise were these decisions? Is there any provision for when the law can be modified in the larger public interest?

A: The chief justice did not pass any orders in the matter of Lal Masjid that you are referring to. Instead, orders were passed by Justice Nawaz Abbasi and Justice Javed Buttar, who, incidentally, were among the first to have been offered the oath under the PCO and who took the oath under the PCO. Furthermore, what I have been able to understand of the Lal Masjid scenario, it’s the government itself which has made it into a large issue. The government claims it is committed against terrorism, but what does the federal minister for religious affairs say? He says in the media that the two brothers [Maulanas Ghazi and Aziz] had arms in their cars, but he intervened and got them off. Isn’t he supporting terrorists?

There are many laws to arrest somebody, there are anti-terrorism laws, anti-subversion laws and others. What the courts say is to please proceed according to these laws. If people are terrorists, lodge an FIR, arrest them, there is a whole mechanism provided. You can’t just pick up a person and keep him incommunicado for years. That becomes a missing persons case. The Supreme Court has never said to release people who are guilty of terrorism or even suspects in terrorism cases. The court says to process them according to law or make laws if the [existing ones] are deficient. To simply pick up people and detain them, however, is unconstitutional. The courts have no option but to release such persons — a person is, after all, innocent until proven guilty.

Everything the Supreme Court did was according to the law and constitution. It cannot be accused of doing something for its personal interest. On the other hand, on the very same day that the proclamation of emergency was issued, Major General Arshad Waheed announced that the military had released 25 militants in exchange for 213 army officers whom the militants had taken captive. So who is releasing these people? Had the court said to release them? Let’s put matters in their true perspective.

Q: In his address to the nation following the proclamation of emergency, General Musharraf spoke about the arrests of various law enforcement personnel and of the collision course the judiciary had chosen to embark on vis à vis the executive, which had “paralysed the state machinery and demoralised the law enforcement agencies.” How would you respond?

A: The Supreme Court has said a number of times that if the government does what it is required to do, there would be no need for it to take any action. The Supreme Court will be more than happy not to do anything. It is only when the government is so thoroughly incompetent that the Supreme Court has to initiate action in all matters, in environmental matters, in building matters — even in traffic matters in Karachi. There is so much corruption everywhere. The Supreme Court has only been intervening because its jurisdiction has been invoked, under Article 184, in matters of public importance affecting fundamental rights. They have never acted beyond this domain. And the general public has been very pleased whenever the Supreme Court has acted. The poorest of the poor support the actions of the Supreme Court.

You must also realise that in this parliament, there is no opposition. In fact, there is no parliament. These parliamentarians are a burden on the exchequer, and you and I are paying for them. We have the largest cabinet in the world. What it does, we don’t know. There are no question and answer sessions, matters are not decided in the parliament, nothing is debated. I think the Supreme Court played a very valuable role because without it there would have been anarchy on the streets and probably much worse. So the Supreme Court offers people a ray of hope.

Q: Do you believe the emergency was entirely triggered by the judgement of the bench hearing the case for General Musharraf’s election to the presidency?

A: A request was made from the lawyers side that a full court should hear the matter. You will recollect that before this judgment, there was another petition which was heard by a nine-member bench. Out of these, four of the judges said that the president could not file his nomination papers. The others dismissed the petition on a technicality saying that the person who had filed it was not an aggrieved person. In the second constitution of the bench, those gentlemen who had decided against Musharraf said that since they had already decided the matter, their conscience would not permit them to be part of this bench. So the new bench was probably the most sympathetic bench available that the president could get. You will recollect that it was headed by Justice Javed Iqbal, who, when the chief justice was removed, was made the acting chief justice by no less a person than General Musharraf himself. So where is there cause for grievance? If you’re not happy even with those who are perceived to be supporting you, does that mean you should get your own court?

Q: Presidential aspirant Justice Wajihuddin made some observations recently. He said that those who were to benefit from the NRO — quite pointedly the PPP — were in collusion with President Musharraf. He also pointed out that the new chief justice of the Supreme Court, Abdul Hameed Dogar, had been elevated to the Sindh High Court by the PPP government, the implication being that his elevation was certainly not anathema to the PPP. Do you agree?

A: I don’t know if Justice Wajihuddin has made these statements. I don’t want to comment upon conjecture and surmises.

Q:Justice Javed Iqbal went on record to state that Aitzaz Ahsan, as counsel for Justice Wajihuddin Ahmed, the plaintiff in the case, had prolonged the proceedings unnecessarily. He maintained that considering Aitzaz’s “political affiliations, he did not deploy what could have been a devastating argument against Musharraf’s nomination papers.” Do you concur with this allegation?

A: I would say that Aitzaz Ahsan is a reputable counsel. I think these comments are certainly not justified.

To say that Aitzaz, because he is affiliated with the Peoples Party, intentionally mishandled the case, is absolutely untrue. We all know that Benazir Bhutto is not happy with Aitzaz Ahsan, so the last person that she would be listening to or vice versa, would be Aitzaz Ahsan.

Q:What happens now to all the rulings that had been made by the Supreme Court prior to the proclamation of emergency? Can they be overturned?

A: Each and every judgment of the Supreme Court stands unless it is overruled.

Q:Can it be overruled by the current bench of the Supreme Court?

A: There is only one Supreme Court, there is no new Supreme Court. Anybody who takes oath under the PCO is violating the constitution and thus cannot be accepted or recognised as a judge.

Q:That notwithstanding, this is not the first PCO, and whatever their legitimate position, the courts have continued to function…

A: There is one big difference this time… this has never happened before. In all the earlier instances the Supreme Court found some fig leaf to justify military intervention by inventing the doctrine of necessity or by other means. The difference this time is that on the day of the proclamation of emergency and the issuance of the PCO, a seven-member bench of the Supreme Court struck down the PCO. The Supreme Court held, “The order states, no judge of the Supreme Court or the High Courts including chief justices shall take oath under PCOs or any other constitutional step. Any further appointment of the chief justice of Pakistan and the judges of the Supreme Court and chief justices of High Courts and judges of provinces under the new development shall be unlawful and without jurisdiction.” So there is an order operating. And what are the consequences of violating this order? Article 190 of the constitution stipulates that all executive and judicial authorities in Pakistan shall act in aid of the Supreme Court. So it is a binding order on each and every one of us. There is no way out of this order now. The fundamental difference this time is that the Supreme Court immediately convened and seven judges, the chief justice and the senior-most judges of the Supreme Court, including the second and the third, Justice Rana Bhagwandas and Justice Javed Iqbal, passed this order. So it carries a lot of weight. The judges went on to state, and this is very interesting, “The chief of army staff, corp commanders, staff officers, and all concerned of civil and military authorities are hereby restrained from acting on the PCO.” I think this concludes the matter and there is no fig leaf this time.

Q:What happens to all the judges who refused to take oath? Do they just go home?

A: No, they continue to be judges under the constitution and law.

Q:The courts will function without them. So will it not be just in name — unless the PCO is rescinded?

A: The only courts in Pakistan that can function are under those judges who took an oath under the 1973 constitution. All those who were judges on November 3, continue to be judges. In the constitution of Pakistan, there are only three ways a High Court or Supreme Court judge can be removed. One, if he dies in office. Second, if he resigns his office. Third, if the supreme judicial council removes him. The framers of the constitution, and this happens everywhere in the world, knew that you must provide security to a judge of the Supreme Court because he would be deciding sensitive matters and at times when you have powerful parties arrayed against you, for example the government or the president, you want to ensure that the judge is not going to be worried about his job. So there is absolute security of tenure. A Supreme Court or High Court judge cannot be removed at all. The minute you do that you fall foul of Article 6 and you are guilty of high treason. So Justice Iftikhar Chaudhry remains chief justice, and there is no other. Sabihuddin Ahmed is chief justice of the Sindh High Court. It is as simple as that, it’s black and white.

Q:How do you see the future of the judiciary?

A: The future couldn’t be bleaker. You can’t have democracy without an independent judiciary, you can’t have democracy without an independent media. Each and every officer of the armed forces and the civil bureaucracy, each and every member of parliament, should be asked about the oath they took under the constitution. Schedule 3 prescribes an oath of office for every one of them, as it does for the president of Pakistan and the prime minister. Under this oath they all swear to preserve and protect the constitution. So now each member of parliament, each federal minister, each provincial minister, each member of provincial assembly, the chairman of the Senate, each one is violating their oath of office. So either they don’t have the consciousness, or the conscience. Have they not read the oath that they took? Are they protecting the constitution when they go by this order which says that the constitution is held in abeyance?

Q:So is there going to be no fight-back by the legal fraternity?

A: The legal community is not entering the courts at this time.

Q:Doesn’t that affect all those whose cases desperately need to be heard?

A: Would you want a case to be heard by a person who has now sworn — and this is very important — not to challenge or to entertain any challenge against the proclamation of emergency or the PCO. Both these devices have been used to take away your fundamental rights. So if they decide to close, for instance Newsline, for printing this interview, what is your recourse? None. Ordinarily you would have gone to the High Court and filed a petition under Article 199, because you could say your fundamental rights had been violated. What will you do today? Nothing. The courts have sworn to uphold the proclamation of the PCO, which says that fundamental rights are out of the window. I know people will suffer, but they will suffer far more, [if they become party to this]. You have to prevent the disease from spreading.

Q:So the fight-back is essentially by an act of omission…

A: I don’t know where the constitution of Pakistan says that only the legal community is obligated to uphold the constitution. It is each and every one’s duty — not just that of civil society, but of every individual, including those in the military.

As for the lawyers, in one day, 500 lawyers were arrested. This is a world record. Three hundred and forty-four FIRs were lodged in Lahore, in just one police station. And lawyers have been charged with all sorts of offences. They were in court, the police barged in, hit them with batons, tear-gassed them and then lodged FIRs against them.

So the entire leadership of the lawyers has been incarcerated, including the second, third and fourth tiers. Still they are brave souls, they are coming out, and are paying perhaps the biggest price. Apart from the assaults on them, if they don’t appear in court, nobody is going to pay them. And it is not as though they will derive any personal benefit from their battle. This battle they are fighting is for Pakistan.

Q:Do you think the current status-quo will remain?

A: Our faith teaches us patience — one should never give up hope and must speak up against tyranny. But the reality is that a single phone call from Condoleezza Rice ensured that, earlier, no emergency was declared. I’m sure if President Bush, who pretends to want democracy in Pakistan, was to make a phone call, things could be immediately reversed. Unfortunately today, the people of Pakistan are not determining the events that are taking place in Pakistan, it is America who decides what happens in Pakistan.

And now the American nation has to, for once and for all, decide, do they stand by the people of Pakistan or do they stand by one individual?