Transformation of Judiciary

Mohammad Jamil

In the past, judiciary had drawn a lot of flak for controversial judgments. To start with is the judgment of former Chief Justice of Federal Court of Pakistan Justice Muhammad Munir, who in 1954 for the first time used the“Doctrine of Necessity” in Pakistan. He had upheld the then Governor General’s arbitrary decision to dissolve the Constituent Assembly on 10th of May 1954. After Ayub Khan’s 27th October 1958 martial law, Justice Munir had validated the military takeovers of Iskander Mirza and Ayub Khan, observing that “a successful coup d’etat is an internally-recognised legal method of changing a constitution.” In 1977, Zia’s martial law and in 1999 General Musharraf’s martial law were also validated by the judiciary. Of course, enticed by power and pelf allurements, politicos were responsible in equal measure by becoming part of praetorian engineering works. Their internecine conflicts were also the reasons for military takeovers.
One could criticise the former CJP Iftikhar Chaudhry for being part of the bench that gave the then COAS Pervez Musharraf legitimacy, and also for resorting to judicial activism. However, after he was restored as CJP as a result of the movement launched by the legal fraternity, the apex court gave landmark judgments including the verdict on famous Asghar Khan Case. It was an epoch-making ruling in every manner, but unfortunately FIA failed to prove true to the trust that the honorable court had reposed in it to conduct an honest, transparent and credible investigation against the politicians who allegedly took money from the IJI founders. The problem is that the FIA and other institutions are not independent and are controlled by the government. In fact, the head of NAB should be appointed by the Chief Justice of Pakistan, and the FIA head should also be appointed on the recommendations of judiciary for taking the cases to their logical conclusion.
According to the constitution, military or intelligence agencies have no business whatsoever in politics, but it is equally important that politicians should not join the praetorian bandwagon. IJI came into being simply because quite a few politicians were out there ready to board the gravy train. Nobody put guns to their heads and bullied them into joining the IJI bandwagon. If a politician is so weak-willed to succumb to pressures, he verily is not fit to be a leader. Anyhow, since former CJ Iftikhar Muhammad Chaudhry was reinstated, the judiciary underwent a transformation, and his successors kept the tradition of putting the high and mighty in the dock. Yet, chattering classes and self-styled analysts convey an impression in TV talk shows that the Supreme Court shied away from indicting those occupying the highest echelons of political power in the country. In fact, the government is to blame for not carrying out the roadmap given by the judiciary.
CJP Anwar Zaheer Jamali took exception to “futile discussions and arguments being aired by the media whereby courts are being targeted without any reason.” In a speech during a farewell dinner organised by the District Bar Association, Mirpurkhas, the Chief Justice of Pakistan, Justice Anwar Zaheer Jamali said that “people involved in yellow journalism should review their behaviour,” adding that “a conspiracy against the legal system was rampant on social media.” Of course, with publication of the Quetta Commission Report concerning August 2016 attack on lawyers in Quetta authored by the honorable Mr. Justice Qazi Faez Isa stands tall, and the position of the judiciary has been vindicated. His dissenting note in the Houbara Bustards verdict and his Quetta Commission Report are reflective of his independence of mind, caliber and resolve. The Supreme Court of Pakistan had constituted the said Commission through its order dated October 6, 2016.
The Commission’s report deliberated on the inability of Interior Minister to take action against proscribed organisations and their leadership. The report stated: “The outfits that repeatedly claimed responsibility for terrorist acts across Pakistan.
, including Jamat-ul-Ahrar and Ahl-e-Sunnat Wal Jamat (ASWJ) were not included in the list of proscribed organisations. The incumbent Federal Government has resisted doing so, hiding behind needless red-tape of ‘consultation’ between different agencies and departments.” It also stated that the Federal Minister for Interior, Chaudhary Nisar Ali Khan has repeatedly and consistently resisted banning militant organisations of a specific sectarian bent. And even after the occurrence of repeated terrorist events, the Federal Minister for Interior met with Maulana Muhammad Ahmed Ludhianvi, leader of several banned militant outfits (including SSP, Millat-e-Islamia and ASWJ), at Punjab House, Islamabad. Ch. Nisar’s argument that he was not aware that Maulana Ludhianvi was member of Defa-e-Pakistan Council delegation was not convincing.
The soft corner for militants was obvious after the Lahore bombings in 2010 when Punjab Chief Minister Shahbaz Sharif had implored the militants to spare Punjab since his party shared common cause with them. In some ways the PML-N approach was reminiscent of the Muttahida Majlis-i-Amal (MMA) policy in the NWFP, which nurtured militancy in its formative phase between 2002 and 2007. By delaying action, the seven-party religious alliance provided militancy the space to turn into a monster. The MMA support for religious extremism held true to its ideological agenda, as for years Maulana Fazlullah had a free hand to indoctrinate the people of Swat and he continued his campaign through illegal FM radio. The militants were so entrenched in the province that ANP government in then NWFP that came into power after 2008 elections could not control their vile acts.
The then NWFP government, instead of putting up a brave face, had buckled under Maulana Fazlullah’s pressure and agreed to enforce shariah as demanded by him, which emboldened him to challenge the writ of the state. But the nation had to pay a very high price for mollycoddling the militants by religious parties, PML-N and even PTI, as they opposed military operation and always stressed the need for negotiations with militant groups, taking the plea that military operation is not the solution to the problem. It appears that the decision to take the militants head on throughout Pakistan was taken by the government on the prodding by former COAS Raheel Sharif. Of course, the Quetta Commission Report by single-judge bench, constituting Justice Qazi Faez Isa, has shown the light; it should not be allowed to be dimmed in any manner.


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