The judiciary of Pakistan definitely has a chequered history. From the Tamizuddin case to the Dosso case, and onward to the Gilani and Nusrat Bhutto cases, and the Zafar Ali Shah case, it has provided support to military rulers. It has accepted all sorts of new-fanged devices to provide some form of cover to military rule. However, ever since the Chief Justice was restored to office by a full bench of the Supreme Court, it has been assumed that the judiciary is free.
When it comes to giving justice to ordinary citizens, the judiciary presents the same face as before, and is not very different from the judiciary of the past, which worked out of court rooms which were merely the under-stairs of a passage, no car, no phone, for the judge who was responsible for deciding cases which involved life and death, never mind those cases in which property worth millions was involved. No wonder one judge was famous for his justice, because he only took money in one murder case to convert a death sentence into one of complicity, and maintained a reputation for honesty because he only treated one case as an exception.
The judges are also the Returning Officers in the coming election, which brings them into contact with the ordinary citizens, which cannot be good for the moral fibre of the judges of the subordinate judiciary, from whom spring the higher judiciary. However, the superior judiciary is also recruited from the lawyers of all the bars of the country. As the bars differ in talent, the various benches vary in the talent that is attracted to the, but the benches are all equal in value and all of them contribute equally to the Supreme Court while it is in the process of being formed. Therefore, on the Supreme Court, there usually is an equality of talent. Thus, the Supreme Court makes judgements which, whatever the provenance of the regime, whether civilian or military, its judgement have been the envy of the civilised world.
The courts thought they were free. Such judgements as in the reference against the Chief Justice and the return of Nawaz Sharif led to a false impression of freedom. But the present case, that of the president staying in uniform while contesting the presidential election was heard by a full bench of the Supreme Court with the Chief Justice absent. Instead, the senior judge of the Supreme Court, Mr Justice Bhagwandas presided. In the decision which followed several days of arguments by the lawyers for Qazi Hussain Ahmad and Imran Khan, who were the main petitioners, as well as the counsel for the president and several amicus curiae (friend of the court) invited by the bench. In the end, the bench decided 6-3 to uphold the position of the president. Here came to an end the latest attempt to separate the judiciary from the executive.
The judiciary was again a part of the executive, and was upholding the executive where ever it could find some law or legal provision to give it comfort. It is unfortunate that the whole judiciary is measured by one or another case, and a decision against the executive only is considered proof of freedom. Actually, the judges of the superior judiciary are quite free in their decisions. They are given a separate pay by the constitution (which can not be cut), they cannot be removed from office. Unlike a government servant, they cannot be demoted, suspended or prevented from performing their functions, nor can they be rewarded any way, such as by being promoted or having an extra increment awarded to them. The judge is sui generis, of a special kind. He should not be confused with the ordinary members of the executive, whether they be a grade 17 or grade 22 officer.
Therefore, it was wrong of those who expected the court to fall in line, but there were many in the president’s corner who thought that the Supreme Court should give a decision in accordance with the national interest, which meant allowing the president to contest the election.
The APDM put as many obstacles in the path of the president by resigning from the National Assembly (85), the Punjab Assembly (46), the Sindh Assembly (7) and the Balochistan Assembly (25). They did not resign from the Senate or the Frontier Assembly. They should not have been permitted to engage in such a meaningless exercise, especially since it made the president look bad and through into some (but not much) confusion the election of the president. The president should have got rid of these people first. Instead he was busy naming a new VCOAS Lt General Ashfaq Pervez Kayani and a new Chairman JCS Lt General Tariq Majid, both are very welcome appointments, and the nation is grateful to the COAS for making them. But it has some, or rather one, question about the two. Will Ashfaq Pervez Kayani be as unrelenting in the war on terror as Pervez Musharraf was? Can Kayani overcome his experience as DG ISI to become a successful VCOAS? Previously, there was a great temptation to elevate the DG ISI but the only person to try, Mian Nawaz Sharif, was thrown out of office and into jail by this very COAS he tried to replace. This COAS became president and Chief Executive; he took over absolute power and ruled absolutely. Infact, he is still not just in power, but he is running for president again.
The Election Commission decided that there would be six candidates in this election of which three would be proper candidates not covering anybody. But it had been decided that the national interest demands that Pervez Musharraf remains president for the next five years, and that he remains in uniform. Meanwhile the PPP has done a deal with Musharraf and got a general amnesty for Benazir and her party men. Infact, she is still demanding that the president should take off his uniform. This is a demand which comes from the west, and should not influence the holder of both offices.
Ashfaq Kayani and Tariq Majid will be the most loyal of Musharraf adherents over the next three years. To blame Musharraf for picking loyal men about him is very unfair. He is likelier than not likely to pick those who are closest to him in military thinking, which means his thinking about Pakistan’s place in the world and therefore about the affairs of America, India and Iran have to remain the same, or rather not change. So the thinking about the Taliban must be the same. The thinking about the new weapons systems that are to be inducted is probably, or rather surely, the same.
The vice chief and chairman are basically both from the Baloch regiment, and thus from the infantry. However, this should not be taken to mean the victory of the seniority principle, but is as pleasant a coincidence as Zia finding all his PSO’s from the artillery even though he was a tank man himself. The new promotions should be seen as more of the same, and nothing new, just as much as Zia made the same appointments, on the same principle. Infact, the new appointments are merely meant to allow the sitting COAS to fulfil his pledge to the Supreme Court, that he should take off his uniform once he was elected president. Why he is acceptable to Benazir once he is out of uniform is beyond description.
Why she finds it more convenient to take orders from General Ashfaq Kayani than Pervez Musharraf is not known, but clearly there is some advantage. Perhaps his having been deputy to the MS during Benazir’s first government may have something to do with it. This was when the military first found out that the purpose of this country was not to find them jobs when they retire. Instead the purpose of Pakistan was to promote the jiala, and if he himself could not be promoted, then to find some way of promoting his culture. This was a Pakistan meant solely for those who had suffered in any way under the Zia martial law. So on October 6 we shall not have any surprises. They, despite the absence of MMA and PML-N, shall elect us a new president and then go into oblivion. In order that we elect fresh assemblies with a PPP majority and then we will have another Benazir government. In the end, we shall have what we are being moved towards. A PPP government headed by Benazir, and a president out of uniform.