Daily Times

As I made plans to revamp my filing system at home, I sat in my study — with an extremely heavy heart and considerably dampened spirit at the Herculean task that loomed ahead during my ‘vacation time’ — weighing my options. My eyes came to rest on the photograph-laden wall. Strategically and proudly placed there is an unassuming ‘black flag’, a rectangular inexpensive piece of cloth, stuck onto a piece of cane, ordinarily not even worthy of a second glance.

In 1994, Benazir Bhutto made Justice Sajjad Ali Shah the Chief Justice of Pakistan (CJP) by superseding senior judges. In 1996, her government was sent packing by President Farooq Leghari. Mian Nawaz Sharif on winning the next elections became the prime minister. Legend has it that Sharif wanted to remove the CJP and needed a plan and a rift was allegedly created in the Supreme Court (SC), resulting in the judges being divided in two camps. An order restraining the CJP from performing administrative and judicial functions was upheld by a 10-member bench of the SC. Ignoring the order, CJP Shah allegedly continued hearing a contempt petition against Sharif when the infamous attack on the SC by PML-N stalwarts took place. Newspaper reports cite that CJP Shah’s appointment was eventually declared unconstitutional, however, years later in 2009, a 14-member bench of the SC heard his post-retirement benefits’ petition and directed the government to have the grace and consider paying a CJP’s pension to him.

We, as citizens of Pakistan, pledge our allegiance to its Constitution. Our presidents, prime ministers, generals, judges, members of parliament and holders of other constitutional posts take oaths of office, and all undertake to “… preserve, protect and defend the Constitution of the Islamic Republic of Pakistan…in all circumstances…do right to all manner of people, according to law, without fear or favour, affection or ill-will.” An integral part of the Constitution and long standing jurisprudence is the fundamental right of equality and equal treatment before law: “To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.” And the right to a fair trial.

In 1948, Pakistan ratified the Universal Declaration of Human Rights, Article 10 of which pertains to the ‘right to a fair trial’: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” Left out in Pakistan’s Constitution for decades, Article 10-A, the ‘right to fair trial’ was inserted vide the 18th Amendment in 2010 and reads: “For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.” Although left undefined by the Constitution, a reference to international instruments shows that an essential component of a ‘fair trial’, among others, is “the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

A seven-member bench of the SC in the context of contempt of court proceedings against former prime minister Yousaf Raza Gilani held that the right to fair trial was a long recognised right, now constitutionally guaranteed and “by now well entrenched in our jurisprudence”. The Court added that through Article 10-A the right had been “raised to a higher pedestal, consequently a law, or custom or usage having the force of law, which is inconsistent with the right to a ‘fair trial’ would be void by virtue of Article 8 of the Constitution.” The Court opined that the legislature left the term ‘fair trial’ undefined, perhaps intentionally, so as to assign it a universally accepted meaning, which included the ‘right to a proper hearing by an unbiased competent forum’, emanating from the maxim ‘no man can be a judge of his own cause’. Elaborating on the principle that ‘justice should not only be done but be seen to be done’, the Court held that a judge may not adjudicate upon any case in which he has a personal interest, regardless of whether his decision is likely to be influenced by it.

I get perturbed when I read the newspapers, or watch the constantly flashing tickers and ‘breaking news’ on my television, which say that an ordinary man can be pardoned but not Imran Khan or that “many people used abusive language against the judiciary on TV but it (the SC) did not give them importance, but such type of words should not come from a man of Imran Khan’s stature.” Why? It disturbs me because regardless of his stature, Khan is a citizen of Pakistan and guaranteed equality before law. Why should others not be hauled up while he is? Why should others be let off while he is not? When the Honourable CJP Iftikhar Muhammad Chaudhry was deposed by General Musharraf, he pleaded his case before the very forum he used to head; it was ironic, the CJP looking for justice. He was reinstated to his seat by a full court of the SC and he got the justice he was looking for. As citizens of Pakistan, we expect that regardless of whether it is CJPs or judges or generals, or whether it is Arsalan Iftikhar or Malik Riaz, or Nawaz Sharif or Yousaf Raza Gilani, or Imran Khan or the ordinary man, no one will be denied justice or a fair trial, for all are entitled to equal protection and treatment before the law.

I will not comment on a sub judice case, as it is for the honourable court to decide whether Khan if charged, had sufficient mens rea to establish his guilt beyond reasonable doubt, or whether the Returning Officers were performing judicial or executive functions, or whether Article 204 applies to the subordinate judiciary or whether the world over, umpires are not blamed for unfair decisions. Hence the provision of the ‘third umpire’ or whether pardoning an ordinary man but not Khan is a violation of his constitutional right to equality before law and fair trial, affecting the perception of impartiality of the honourable forum. Or whether or not the guidelines contained in the National Judicial Policy are applicable to election petitions?

July 20, 2007 was a day that made history in Pakistan. Of all the overwhelming feelings at the time, the most powerful one was of extreme euphoria and prestige, the fact that we had glorified the ‘black coats’. March 16, 2009 was another such day, when the unconstitutional acts of a dictator finally culminated in a massive achievement, not only for the black coats but also for the whole nation, when a ‘democratic’ government was brought to its knees by the power of the people and the rule of law was established.

About the ‘black flag’ in my study, it is a part of my life, like all the photographs, degrees and certificates on that wall. It is ‘the flag’ which I, like thousands of other lawyers, carried during our movement for the restoration of the judiciary. It symbolises a terrible time in Pakistan, and our commitment, struggle and hope. It is the symbol of our pledge for a free, fair and independent judiciary. There is talk of a ‘rift’ between the bar and the bench, of lawyers and moderates being upset. I pray to Allah, may that day never come when I have to take down my flag.

The writer is an advocate of the High Court