History will judge the judges
Ever since the verdict by Justice Faez Isa on the case of Faizabad Dharna by the Labaikis and the discovery about the distribution of cash by an army officer among the religious rabble rousers on the plea that they did not have enough money to take them home has elevated Justice Faez Isa to the central stage as the champion of independent judiciary.
Not that ever since then Justice Faez Isa and his wife are busy fighting a crusade to defend themselves from the tenterhooks of a judiciary and chief executive out there determined to hunt the couple down in order to please the Establishment with cash loaded envelopes to use the Labaiki rabble rousers as pawn in the hands of national intelligence agencies. Had Justice Qazi Faez Isa not accepted the questionable judicial challenge to counter illicit conspiracy against him, his wife and his family—it would have been a sad swan song for the highest judiciary that has already suffered immensely due to a track record of legitimising all illicit acts of the chief executive starting from Chief Justice Munir’s doctrine of necessity that dug the grave of upholding independence of judiciary. Indeed, worst ever crime by the Pakistani superior judiciary was committed in the case of death sentence on the fabricated charges of murder to Pakistan’s first popularly elected Prime Minister
Zulfikar Ali Bhutto—an act of crime that has acquired a permanent position of albatross around the neck of Superior Judiciary. The best comment on such a sordid dispensation of justice was made by Justice Faez Isa seeking assurance that judges must ensure that no state institution transgresses its jurisdiction. Justice Isa says respecting the constitution is binding on those paid from taxes of common man.
Justice Isa on judges
I think it was September 2019 when Supreme Court judge Justice Qazi Faez Isa highlighted the duty and responsibility of the judiciary within a democratic system and said that it “has the authority to stop an individual or institution in the event they transgress the fundamental rights accorded to them”. His remarks came during a lecture at Karachi’s Institute of Business Administration (IBA) where he was invited to speak on ‘Law, Judicial Interventions and Social Change: with a special focus on Labour Law’.
Justice Isa who recently emerged vindicated by the overwhelming majority of the judges in the presidential reference against him pending before the Supreme Judicial Council. Overwhelming majority of the Supreme Court judges upheld his petition challenging the reference, which was heard by a 10-member bench of the Supreme Court.
It may be recalled that the reference had been instituted against him accusing him of concealing his properties in the United Kingdom allegedly held in the name of his wife and children.
Attack on judiciary?
Indeed, an upright man that he is, Justice Isa rightly believed that he was being targeted by factions within the state for his outspoken views. He also believes that the charges brought against his person constitute an attack on the independence of the judiciary.
In what is described as a landmark observation:
“The foundation of the constitution of Pakistan rests on three pillars. The first is the parliament which is responsible for legislation. The second is the government or administration which enacts the legislation. The third is the judiciary which interprets the constitution and law and ensures that every individual and institution operates from within the scope of their authority,” he said.
Justice Isa rightly believes that democratic principles must be adhered to if a country wishes to stand strong, and added that respecting the constitution was obligatory on those who received their salaries from the taxes paid by the common man. According to him the constitution made it very clear that protecting democracy was an obligation on the citizen of the state. “If we continue on the path of democracy, the integrity of the state will only flourish. He further noted that ensuring the provision of basic human rights to the citizens of Pakistan was the duty of the superior courts. He said if a state body encroaches upon the rights of citizens, the judiciary must intervene. “History stands witness to the fact that whenever institutions have crossed the bounds of their authority, not only are the fundamental rights of people violated, the country is weakened and can break apart as well,” he said.
“We secured independence for a region which was based on two provinces: East Pakistan and West Pakistan. When one man’s dictatorship was in place and martial law had been instituted – first in General Ayub Khan’s time and then in General Yahya Khan’s tenure – the democratic rule of law had been sidelined and resultantly, we were robbed of half of Pakistan,” he said.
“When the democratic system is weakened within a country and the voice of one man drowns out the voices of others, the enemy takes advantage of this. And this is what happened in 1971. Thousands of military soldiers and officers were unable to do anything to save the country from breaking apart. The objectives resolution (the preface to the constitution) had very rightly laid emphasis on democracy two decades prior for this very reason,” Justice Isa emphasised.
“We now call Pakistan what was West Pakistan at the time, but in truth, this is half Pakistan.”
He questioned whether we had learned our lesson from history. Speaking of the famous report put together by Chief Justice Justice Hamoodur Rehman on Zulfikar Ali Bhutto’s instructions to unearth the reasons behind such a loss, he said, “It is regrettable that today, even after the passage of more than 47 years, this report was not published and the people were not made aware of the reasons that led to this incident.”
Learning from past mistakes
“Institutions and countries are strengthened only when they learn from their mistakes and do not repeat them. Those who avert their gaze from transgressions made or hide the truth, neither do they learn from their mistakes, nor do they lead institutions towards a position of strength,” said the Supreme Court judge.
He also made clear that it was also incumbent upon the judiciary to not cross its own scope of authority.
“Before I raise my finger at any institution in particular, I will talk about my own, and provide a few examples to clarify what I am saying. The federation and governments of all four provinces levied a tax on mobile phones. The federation placed additional income tax and excise duty, whereas the provinces charged a sales tax on services. Based on a written, anonymous complaint, the Supreme Court suspended six different taxes invoking Article 184(3). But when the final judgement was issued, it said that the order was not justified for the placement of such restrictions because taxes do not form part of fundamental rights and so their levying or not cannot be deliberated upon by the Supreme Court.”
He said that in the period the taxes were suspended through the Supreme Court’s prohibition order, the national exchequer witnessed a loss of Rs 100bn – an amount which cannot be recovered now.
“The courts should exercise judgements in accordance with the constitution; those decisions which ignore the constitution and law are never lasting despite appearing to be in accordance with the people’s wishes.”
Columnist Fakir Aijazuddin in his recent article commented that “the Bhuttos and tragedy share a grave. They are like the Kennedys and the Nehruvian Gandhis – privileged families who invoke (to borrow Homer’s thoughts) ‘the envy of the gods’; their mortal appeal lies in that ‘they are doomed’.
Indeed, that sense of genetic foreboding permeates the pages of Victoria Schofield’s touching memoir of her long friendship with the martyred Benazir Bhutto – The Fragrance of Tears (OUP Karachi, 2021). She reminds us of her relationship that began when they were at Oxford University in October 1974 and ended thirty-three years later with the assassination of Benazir Bhutto in December 2007. It takes me to Simla in 1972 where Bhutto Sahib introduced me briefly to her. Ours too was a relationship in faith and loyalty that terminated on December 27, 2007
Victoria narrates in her book “Fragrance of Tears” the most memorable meeting that Prime Minister Benazir had in December 1988. Indeed, it was as I was introduced to Rajiv Gandhi by Benazir as “most loyal friend”. Elements that did not support their meeting including the then ISI chief Lt General Hameed Gul. Attempt was made to mar the summit by intelligence that removed the Kashmir house board indicating it to have been removed with the sinister motive.
Indeed, as Fakir says “That Zulfikar Ali Bhutto emulated in many ways Jawaharlal Nehru’s example is well-known. Nehru saw Indira Gandhi as his political successor; Bhutto regarded Benazir as his. They groomed their daughters to battle in a masculine world. Each woman in time became a Joan of Arc, fighting to recover her country from occupying forces – in Mrs Gandhi’s case, obscurantism within India’s political space, and in Ms Bhutto’s presence of the military within Pakistan’s democratic boundaries. In the end, like Joan of Arc, they were made to pay with their blood for their spirited nationalism.
Fakir is absolutely right that during their lifetimes, jail became an annexe to the family home. Oriana Fallaci, in her book Interview with History (1976) quotes a story of the young Indira Gandhi opening the door to visitors, saying: ‘I’m sorry, there’s no-one at home. My father, mother, grandfather, grandmother, and aunt are all in prison.’ For Benazir Bhutto, prison was home, and home too often a sub-jail.
“She witnessed her father’s inhuman incarceration, suffered unconscionable solitary confinement herself, and then was forced to share half her married life to Asif Ali Zardari with his jailers. It was a price few politicians would be prepared to pay. Certainly, her nemesis opponent Mian Nawaz Sharif never did. His stint in Attock Fort in 1999 was made palatable by his wife Kulsum, who flew from Lahore to Islamabad every day with home-cooked delicacies.
Indeed, the bond between Benazir and Victoria deepened during the experience they shared preparing Mr Bhutto’s appeal to the Supreme Court. Confined in a stuffy room in Flashman’s Hotel (Rawalpindi), they typed up a pamphlet – ‘Rumour and Reality’ – and later a 300-page rejoinder to General Ziaul Haq’s muscular White Paper about Mr Bhutto’s maladministration. Schofield recalls: ‘Benazir never learned to type properly and, after a few days, she had to put band-aids on all her fingers because they kept getting stuck between the keys and had started bleeding.’
Until Mr Bhutto’s hanging in April 1979, Ms Schofield’s Oxonian instincts refused to allow her to admit the inevitability of Bhutto’s judicial murder. She did not believe that Pakistan would hang its own prime minister. She had forgotten perhaps that a British regicide Oliver Cromwell, 330 years earlier in 1649, had beheaded an anointed king. An eyewitness recorded that the crowd let out ‘such a groan […] as I never heard before and I desire I may never hear again.’
According to Schofield who later wrote an authoritative account Bhutto: Trial and Execution (1979), that April morning in 1979 the PPP hierarchy was less moved. The demonstration called by them was soon dispersed by the authorities. PPP supporters – even women like Yasmin Niazi Islam – were arrested. Correspondents from The Daily Telegraph and The Guardian searched for Mr Mumtaz Ali Bhutto and Abdul Hafeez Pirzada and found them having lunch, (Later they were taking a second wife while their leader was being hanged) ‘their desertion of the crowd unexplained.’
”At the time, Ms Schofield’s book on Bhutto’s trial was dismissed as fawning ‘hagiography’. Another reviewer commented: ‘She is biased, of course, but no more so than the judges who tried him.’
“Since then, some judges who sat on that infamous bench have recanted, fulfilling the prophecy of an eye-witness Robert Badinter (later France’s Justice Minister): ’History will judge the judges.’
Benazir did not live long enough to see her son Bilawal graduate from her alma mater Oxford, nor her daughter Bakhtawar marry. In her will, she named her husband Asif Ali Zardari as her political heir. His instincts proved sounder than hers. In his full-term elected presidency, he applied her advice that ‘democracy is the best revenge’. He continues to dance the civil-military tango without stepping on any boots.
“Schofield quotes Benazir telling her: ‘I did not choose this life. It chose me.’ Benazir could not have chosen anyone better to write an epitaph than her friend Victoria Schofield.