By:
KHADIM HUSSAIN QAISER
Advocate Supreme Court

The rise and fall of the nations is judged by how they respond to the times of crisis. The nations which face the hardships with fortitude are remembered in history as brave nations; but the ones who fizzle out in adversities and trying times are given a label of “failed states/nations”.

One does not have to be an intellectual or a philosopher to realize that we in Pakistan are also passing through such times which make or break a country. The crisis which started on 9^th March, 2007 when the Chief Justice of Pakistan was made “non-functional” had all the ingredients which could put our nationhood to a test. But thankfully we passed this test with flying colours.

What followed till the restoration of the Chief Justice on 20^th July, 2007 makes us, as a nation, proud of ourselves. The lawyers’ fraternity leading from the front, alongwith the members of the political parties and civil society, did not leave any stone unturned in struggling for the supremacy of the constitution, rule of law and independence of judiciary. This was the first time in our political history that we witnessed a spate of resignations by a number of law officers–I being one of them who resigned from the post of Additional Advocate General, Punjab — as well as judges of the subordinate and higher judiciary. This victory was not only a victory of the lawyers’ community or of the Chief Justice himself, but the rank and file of Pakistan were the ultimate winners.

However, as soon as the people of Pakistan started believing that the judiciary had become independent, the now-retired General intervened. The emergency was proclaimed in the country alongwith the promulgation of the Provisional Constitutional order, which prematurely ended the career of 50 or so higher Court judges including the Chief Justice of Pakistan, Mr. Justice Iftikhar Muhammad Chaudhary. These, judges along with the prominent lawyers were either arrested or detained in their houses so that they could no longer play the role they played in the March 9 movement. Media was clamped down and use of force was adopted to quell down the demonstrations and protests. Thus the movement was not allowed to gain any momentum.

Despite taking off his Uniform and lifting of the emergency, Mr. Musharraf could not get the legitimacy he hoped for from the people of Pakistan in general and the lawyers’ community in particular. The letter was adamant in its demand that the judiciary should be restored to pre-Nov 3 position, only then the retired general should be given a breather from the daily protests and boycotts. But the retired general had other ambitions when he announced the elections to be held on 8^th January, 2008. Both the mainstream political parties – PML (N) and PPP – decided to participate in the elections against the wishes of the lawyers’ community.

However, with the assassination of PPP’s chairperson Miss Benazir Bhutto, things changed quite dramatically. This political murder has not only deprived the battered nation of a great leader, but is also going to have a colossal affect on the future political dispensation of the country. In the short run, I am rather skeptical about the holding of upcoming elections as per schedule – now 18^th Feb — after this reprehensible act of killing, PPP’s subsequent decision to take part in the polls notwithstanding.

Whatever the merit and consequences of this decision, one thing is clear that the Musharraf regime has landed itself into another catastrophe by being lackadaisical about the security of the slain leader. The large-scale rioting and protests which ensued after the killing of the PPPP leader are only a writing on the wall. Sooner or later, these protests are going to reinforce and strengthen the movement of lawyers, journalists and students -whether before or after the polls.

In the meanwhile, as the lawyers waited for the general elections to finish, the boycott of the High Court and Supreme Court Judges continued with much fervour. The stance of the lawyers’ community was principled as appearing before these judges would have been tantamount to admitting them as judges as such. This boycott continued for over a period of 2 months when the lawyers -most of them earn on daily basis -sacrificed their profession and income only for the cause of restoration of judiciary.

The Pakistan Bar Council, however, finished the complete boycott of PCO judges a few days ago much to the chagrin of most of the lawyers who wanted this movement to prosper. This boycott would now be limited to one hour daily and full day on every Thursday. The Lawyers of N.W.F.P, as always, are at the fore front rejecting outrightly the decision of PBC. They think that this decision to terminate the boycott is equal to stabbing the current movement in the back. The Rawalpindi Bar Association has also rejected this decision of PBC. There is also a great deal of resentment in other local bar associations of the country. For this purpose, Punjab Bar Council is holding a seminar titled “Restoration of Independence of Judiciary” on 22^nd January, in which a resolution to this effect may be passed.

In short, I have no doubts in my mind that this movement will succeed ultimately -with or without complete boycott of the PCO Judges; but this decision of Pakistan Bar Council is highly unfortunate. PBC could have waited a bit longer to come to a consensus decision. There is no doubt that the lawyers are suffering a great deal due to the boycott and so are the litigants, but, these exactly are the tests great nations are supposed to pass with flying colours if they are to be called brave or successful nations. I am afraid that by ending the complete boycott of the PCO judges, the apex body of lawyers has failed a test which could prove fatal to the cause of restoration of independence of judiciary.