Our history is replete with judicial transgressions and military interventions, the implications of which can be very unnerving. A quick glimpse of history would reveal that when the dictator General Ayub Khan deposed Iskander Mirza, the change was welcomed but what did we reap? Government corruption and nepotism, in addition to an environment of repression stifling free speech and political freedom, increased unrest and above all, rigged elections.
Then we witnessed the era of General Ziaul Haq, the worst of all dictators who stained the political history of Pakistan with the blood of Z A Bhutto. Zia overthrew an elected prime minister in a bloodless coup d’état and in those criminal acts, he was fully abetted by turncoat politicians, now self-acclaimed champions of democracy.
After Ayub’s legacy, Ziaul-Haq gave us the gift of Islamic militancy. In Zia’s hands, Islam and Islamic ideology became a versatile tool for the extension of state control into the domain of the personal and private lives of citizens as well as their public, political, professional and cultural activities. It is the result of that legacy that today the whole country is drenched in blood. Zia played the Islamic card to defend himself and the Generals against any accusations of misrule and corruption. Zia and his Generals made millions from the illicit heroin trade and underhand weapons deals, besides large-scale embezzlement in funds that were meant for the Afghan war. However, since the media in Pakistan during his regime was gagged brutally through extreme censorship, none of his corrupt deeds could be documented or made public by print media.
Hardly a decade later, Pakistan experienced another transition from democracy to dictatorship through another coup d’état and General Musharraf became the de facto head of Pakistan. Regrettably, our apex judiciary not only validated Musharraf’s unconstitutional act of overthrowing a democratically elected prime minister but also permitted him to make amending inroads into the constitution of Pakistan as per his will and desire. Keeping alive his predecessors’ illicit traditions, Musharraf bartered Pakistan’s sovereignty by striking deals with foreign forces. Terrorism took root in Pakistan during Musharraf’s tenure and the deteriorating security situation in the whole country was due to the wrong policies pursued by him. He not only deposed the very judges who had validated his nasty rule but also threatened and forcefully detained them.
Political leaders like Bugti, who had once been the chief minister of a deprived province, were targeted and killed, but our judiciary remained a silent spectator of the critical situation and no suo motu action was ever taken against him. Musharraf demoralised the institutions of Pakistan, creating a big gap between the military and the public. A flame of terrorism and extremism spread from Parachinar to Karachi and the whole country was engulfed in a deadly frenzy of suicide bombings and target killings. The political leadership of the country was either put into jail or was forced into exile. Returning to her beloved country, charismatic leader Benazir Bhutto narrowly escaped in the first attack on her in Karachi but the nation lost its favourite leader in the second attack in Rawalpindi in December 2007.
Pakistan’s history is pathetic, but it would be inappropriate to feel pity for the nation only on account of political mistakes while there are many others who have contributed to its woes. Justice Muhammad Munir was the first who laid the foundations of constitutional abrogation. He was the one who introduced the concept of ‘Doctrine of Necessity’, validating the dismissal of Khawaja Nazimuddin’s government by Governor General Ghulam Muhammad. In 1958, the same Justice Muhammad Munir upheld General Ayub’s military takeover on the basis of the doctrine of a ‘successful revolution being legal’. This was the first capitulation of the judiciary before an autocrat.
Later, Justice Anwaar ul Haq and Justice Naseem bowed their nodding heads before a uniform, thus giving a new lease of life to military dictators. In another barefaced shameful episode, Maulvi Mushtaq sentenced Bhutto to death. The judicial murder of Zulfiqar Ali Bhutto at the behest of General Ziaul Haq and his Generals was another offensive display of connivance of the judiciary with the army brass.
In 1990, when Ghulam Ishaq Khan dismissed Mohtarma Benazir Bhutto’s government, the Peshawar High Court reversed the decision that restored the provincial assembly, only to be reversed by the apex court when challenged.
Keeping the past history in mind, Justice Sajjad Ali Shah started the trend of suo motu cases in Pakistan. His partisan role can be discerned from his dismissal of the petitions challenging the 1996 dismissal of the government just three months before the elections in February 1997.
We remember that when General Musharraf overthrew Muhammad Nawaz Sharif’s government, Justice Iftikhar Muhammad Chaudhry was one of the 12 Supreme Court judges who validated the military coup. In the ‘Judgment on 17th Amendment and President’s Uniform Case’, Justice Iftikhar Muhammad Chaudhry was one of the five Supreme Court judges who dismissed all petitions challenging President Musharraf’s constitutional amendments.
The recent strife between the judiciary and executive shows that once again things are moving to square one. Yes, of course, pity the nation that has been suffering at the hands of those who are there to dispense justice. Yes, pity the nation whose history is tainted with judicial transgressions. Yes, pity the nation that has been facing the dilemma of a fragile democracy. Yes, pity the nation in which each branch of government deems itself a sole power. Yes, pity the nation in which the judicial system is biased. Yes, pity the nation in which criminals are released without any shadow of doubt and pity the nation in which the judiciary fails to punish killers of thousands of innocent people. Yes, pity the nation where people lose their battles with life in the quest for justice. Pity the nation where the freedom of the judiciary is defined as the freedom of judges rather than the freedom of the institution to work as per the law and constitution.
Pity the nation where a judge openly expresses his sentiments of extreme hatred for the prime minister of the country in a very ironic way.
Note: The purpose to discuss the brief history of the judiciary and military is not to malign any institution but the nation is fed up to its last tolerance point by the word ‘change’ through military intervention and pitting the judiciary against democracy. Please, do recall history before inviting another reprehensible change.
The writer is a political analyst and expert on FATA affairs. He can be reached at [email protected]