Daily Times

I have a serious issue with fundamental rights. Sometimes I feel that my definition of the term is totally delusional, given the respect that it commands in this country, and the true term is actually ‘fund-a-mental’, in its urban sense.

The more I read and the more I practice, I tend to become more delusional. I have always been an optimist with a liberal sprinkling of realism, now is that not an oxymoron, ‘optimistic realist’?! I read the constitution, with my deep rooted belief, again maybe delusional, in its supremacy. I read the judgements our honourable apex court hands down. And I dare to believe. And, to hope.

Our constitution tells us that we have the ‘inalienable right’ to enjoy the protection of law and to be treated in accordance with it. It specifically forbids any “action detrimental to the life, liberty, body, reputation or property of any person” except that which is in accordance with the law.

The honourable Supreme Court has repeatedly and consistently held that whenever a person complains about a violation of his fundamental rights to the honourable High Court, “The court must step in to investigate such facts under the discretionary jurisdiction conferred on it under Article 199 and pass such order as may be found just, legal and equitable taking into consideration the facts and circumstances of each case.”

The honourable Supreme Court of Pakistan had observed in a case in 1989, “The law sometimes is called an ass but the judges should, as far as it is possible, try not to become one.” Again in 1990 the honourable apex court, reiterated “the principle” that the “law may be blind but the judge is not”.

Ours is a country that has seen history being made, when the honourable Chief Justice of Pakistan was manhandled and put under house-arrest; other honourable judges and even their families were not spared. When, we, the lawyers, started our movement for the restoration of judiciary, we were laughed at. People told me that the day my belief, my conviction came true, would be the day donkeys will fly.

The common man, and I speak for myself and others like me, wanted ‘our judiciary’ restored so that there would be hope again because we believed in the supremacy of law. Delusional some say. And then the whole world saw, the ‘donkeys’ did fly!

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’; never have I felt so proud of the simple black coat that I wear, summer or winter, regardless. It was the day when the honourable Chief Justice of Pakistan was restored to his seat by a 13-member full bench of the honourable Supreme Court.

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 for the whole nation, when a democratic government was brought to its knees by the power of the people.

But, what do I tell the common man now? What do I say when they ask me, where are our rights to life and liberty? Where is that equality and equal protection of law? Where are all those safeguards against arrest and detention? Why are the police still committing atrocities? Why are the private prisons and ‘deras’ of the influential still thriving? Why are the courts turning a blind eye to custodial torture, even when it is a glaring reality right in front of them?

What do I say, when they ask me, where is our Chief Justice? Our saviour. Our messiah.

I say what I always do. He cannot be everywhere.

But the common man does not understand this. He seeks justice. After Allah, he believes that the courts will come to his aid. But when they fail him, what do I tell him? Simply that they do not know that the precedents set by the honourable Supreme Court are binding upon them. They know not that this ‘position’ is not ‘elevation’ as they may falsely delude themselves into thinking. It is a great burden. A very, heavy burden. And, a sacred trust. And to discharge it honestly, here in this world, would serve them better, billions of times better, than to stand accountable for how they judged those who came before them. I quote Surah Al Nisa’ (4), Aayah 135:

“O you who believe! Stand firmly for justice, as witnesses to God, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor; for God can best protect both. Follow not the lust (of your hearts), lest ye swerve, and if ye distort (justice) or decline to do justice, verily God is well acquainted with all that ye do.”

I am sure that I speak for most Pakistanis, albeit without their consent, when I say, an independent and impartial judiciary is what we want for ourselves and our children. The average Pakistani wants to look to the august courts for the protection of his, among others, oft flouted and trampled fundamental rights. He needs to know and to believe that there will be justice in this world for all the atrocities committed against him. This is only possible if we let our judicial system and our judiciary evolve into a really transparent, impartial and free institution. But all this is only possible if we stop exerting pressure, be it political, emotional, financial or via blackmail and, most of all, if we put a strong mechanism of accountability in place. For all those who criticise the judiciary, I say that it will not happen overnight, it will take time and patience, not to mention a lot of hiccups and self-medication. But it will happen. And a day will come when the donkeys will fly again!

The writer is an advocate of the high court