Justice Sabih’s legacy

Karachi, April 28:

Justice Sabih: Upholder of human rights

Justice Sabih: Upholder of human rights

The newspapers on the PIA flight back from New Delhi on April 20 reported the shocking news about Justice Sabihuddin Ahmed’s death. Various thoughts jostled with sadness at his untimely departure. I remembered him as a lawyer, one of the Human Rights Commission of Pakistan’s founder members in 1986 and HRCP’s first Vice Chairperson for Sindh. My first term on the HRCP Council coincided with his last as he resigned in 1997, after being appointed as a judge of the Sindh High Court to the jubilation of human rights activists. Colleagues, activists and professionals revered him as a lawyer and later as a brilliant judge for his consistently compassionate and principled stands.

Twenty years ago, as a lawyer, he drafted a groundbreaking legislation regarding organ donations. His colleague and fellow advocate Syed Iqbal Haider twice presented the draft law as a private members’ bill before the Senate. The powerful vested interests of the commercial transplantation lobby kept getting it shelved. Eventually, years of hard work and lobbying by dedicated visionaries like Dr Adeebul Hasan Rizvi and his colleagues got the bill through as a presidential ordinance in October 2007. The commercial transplantation lobby appealed against it on the grounds that it was against Islam. On April 18, 2009, after extensive deliberations, the Federal Shariat Court ruled that organ donations are compatible with Islam, and outlawed commercial transplantations. That was also the day that Justice Sabih breathed his last.

His judgments strengthened human rights principles and gave relief to the aggrieved. His ruling of 1997 ordering the payment of monetary compensation to a detenu in a habeas corpus petition made judicial history in Pakistan. As chief justice of the Sindh High Court he encouraged out-of-the-box thinking, like allowing a judge of the Sindh High Court to take up appeals in interior Sindh as an experiment in 2007. Sitting at the Sukkur High Court, the judge (Justice Rehmat Shah Jafri) found that people had been in prison for 25-30 years on average. Refusing adjournments, he dealt with 300 appeals and disposed of 70 per cent of the murder cases in two months.

Women’s rights organisations always found Justice Sabih sympathetic. In one instance, he got the hearings of two rape cases transferred to Karachi from interior Sindh where the rape survivors felt threatened by the accused.

He was among the judges who refused to take oath under Musharraf’s PCO following the Emergency declaration of Nov 3, 2007. His steadfastness was an example to his brother judges. At one of the judge’s homes in Karachi, where civil society activists presented flowers to the dissenting judges, Justice Sabihuddin succinctly explained why they should be supported even if they had taken oath under an earlier PCO.

The military twice displaced civil power after the promulgation of the 1973 Constitution and took extra-constitutional judicial action through a PCO that required judges to take fresh oath: 1981 (under General Zia) and 2000 (under General Musharraf). After Musharraf seized power (Oct 1999) several judges refused to take oath under the PCO of 2000. The Supreme Court gave the military regime de facto recognition on condition that the judicial organ of the state remained uninterrupted. It also declared that independence of the judiciary was part of the basic structure of the Constitution, which the parliament could not amend. The self-styled chief executive was given power to amend, but not alter, the basic features of the Constitution. Also, extra-constitutional measures would be permissible only when the Constitution did not provide a remedy and the action taken was proportionate to the emergency situation.

In November 2007, an unprecedented 59 out of nearly 94 judges in the higher judiciary refused to take oath under the PCO. They stuck to their guns until after the elections. Over the past year, most ‘deposed’ judges returned to the courts, some like Justice Sabih in elevated positions. Many among civil society who had been active in the movement for the restoration of Chief Justice Iftikhar Mohammed Chaudhry saw this as a great betrayal.

One of them was on the PIA flight from New Delhi with me, anguished at Justice Sabih’s death. We talked about the lawyers’ movement and the divergent strands within civil society.

An early division within ‘civil society’ was over the general elections. Dominant opinion in discussions over the Internet and on television talk shows advocated boycotting forthcoming polls, with no answer to the question ‘and then what?’ (One Islamabad-based activist told me that his organisation planned to stop people from voting, and he himself planned to pour ink into ballot boxes on election day. If he wanted to boycott the polls that was his right, I responded, but he had no right to spoil other people’s votes.)

Another dominant civil society stand was that the new government should straightaway restore the judges through executive order. The government’s waffling on the issue notwithstanding, those who thought that the judges’ restoration should not be the be-all and end-all of the movement and that it should be debated and decided in parliament were dismissed as government apologists.

When many judges went back into the fold, this dominant civil society opinion saw it as a betrayal of the cause for the restoration of the chief justice, even terming them as ‘PCO judges’. Given the track records of people like Justice Sabihuddin an attempt to understand their move would have been in order, even if people disagreed.

So great was the divide that some virtually ostracised them socially. “I last met him at the Boat Club some months ago,” said my grieving activist friend on the flight, who had known the late judge for over forty years. “He asked me to come and see him but I was too angry. He asked me a couple of times again through someone to see him … I didn’t. I will always regret that.”

When he finally did go, it was too late. Justice Sabihuddin was unconscious in an intensive care unit. I could feel his pain at not having made his peace in time. Many also felt similar ‘too late’ anguish when Benazir Bhutto was assassinated, having pilloried and castigated her for making a ‘deal’ with a military dictator and then contesting elections.

“I have learnt a lesson from this. I will never take such a rigid position again,” he added.

Maybe somewhere, somehow, Justice Sabihuddin understands. Certainly he would forgive. This can be but of small comfort to those who wish they had given him a hearing, as he gave so many others.

Some thoughts on ‘Swat flogging video’

Girl being flogged: Still from the cell phone video circulated on the Internet and broadcast (repeatedly) on the private channels

Girl being flogged: Still from the cell phone video circulated on the Internet and broadcast (repeatedly) on the private channels

The ‘Swat flogging video’ has made headlines all over. Zubeida Mustafa in her excellent article in Dawn today, ‘A catalyst for change? analyses the reasons why

This para jumped out at me: “The Swat flogging video has brought people face to face with the reality of the emergence of extremism in the name of Islam. It has brought to the surface the paradoxes that had until now been swept under the carpet for expediency’s sake. The video has forced difficult choices on the people compelling them to at least think about issues that affect them very personally.”

Zia’s children, by Ayesha Siddiqa in The News, April 05, 2009 highlights the issue of ‘Islamic law’ or ‘Sharia’. She references the recent book by Tahir Wasti ‘Application of Islamic Criminal Law in Pakistan: Sharia in Practice’. Wasti, as she points out, has experience of both Islamic law and British common law. “This is the first detailed research enlisting the ramifications of the application of sharia law in Pakistan. tracing the historical roots of this phenomenon”.

For those who haven’t followed the issue or seen the video (warning, it’s graphic) check out Declan Walsh’s initial report on the issue in The Guardian, April 2, 2009 (two days before TV channels in Pakistan picked it up):


Re: my own take – I’ve been swamped with the final editing of another documentary I’m making, but wrote something on the issue the other day that I will share after publication.

Five days that changed Pakistan

Analysis by Beena Sarwar

KARACHI, Mar 16 (IPS) – A late night meeting between Pakistan’s army chief, President and Prime Minister led to the dramatic announcement in the wee hours of Monday morning that Iftikhar Mohammed Choudhry would be restored as Chief Justice.

The announcement, made by Prime Minister Yusuf Raza Gillani, has been widely welcomed for having broken the political impasse that was threatening to plunge the country into chaos and possible army intervention.

For the past few days, hectic efforts had been underway domestically and at the international level to break the impasse, including by United States Secretary of State Hillary Clinton and British foreign minister David Miliband.

Former president Gen. Pervez Musharraf initially suspended Choudhry from office in March 2007, sparking off a nation-wide lawyers’ movement joined by civil society and political activists. When a Supreme Court order restored Choudhry to office, Musharraf imposed Emergency rule on Nov 3, 2007 that many saw as imposition of martial law.

Superior court judges who refused to take oath under the Emergency orders were sent packing. For the first time in the country’s history, the majority of judges refused to take this oath, leading to hopes that the days of the judiciary’s connivance with the establishment were over.

The elections of Feb 18, 2008 brought in a democratically elected government. But lawyers were unhappy with the way it dealt with the judges’ issue.

The government restored the judges who took a new oath under the constitution.

Choudhry and a few other judges refused on the grounds that this legitimised Musharraf’s illegal executive order that had sent them packing in the first place and that the restoration should take place through another executive order.

Leaders of the lawyers’ movement announced a ‘long march’ starting on Mar.12 to converge on the capital Islamabad on Mar. 16 for a ‘dharna’ or sit-in until the Chief Justice was restored.

As the long march kicked off, the beleaguered government appeared to be at odds with itself. Prime Minister Gillani asserted that the marchers would be allowed to converge on Islamabad even as his Interior Minister Rehman Malik, known to be close to President Asif Ali Zardari, took measures to prevent this from happening.

The resulting scenes of police beating and arresting people, in many cases from their houses, drew comparison to Musharraf’s last months in power, particularly during the Emergency of 2007.

In his early morning announcement, Gillani said that Choudhry would be restored to office “according to my government’s promise” on Mar. 21 when the incumbent Chief Justice Abdul Hameed Dogar, a Zardari appointee, is due to retire.

He confirmed the decision reported a day earlier, that his government would file a review petition in the Supreme Court against the disqualification from elected office of Pakistan Muslim League-Nawaz (PML-N) leader Nawaz Sharif and his younger brother Shahbaz Sharif.

A controversial court decision of Feb 25 that dislodged the younger Sharif from office of chief minister of Punjab, Pakistan’s most populous province had led to the Sharifs coming out with no holds barred against the man they saw as behind the judgement, President Zardari.

Many felt the disqualification judgement was timed to remove the Sharifs from power ahead of the ‘long march’. Several city mayors loyal to the PPP whom the Sharifs had removed from office were brought back to aid the federal government in its attempts to block the long march.

Police arrested hundreds of activists across the country and commandeered buses and containers to barricade roads and prevent the protestors from marching – except in Balochistan province where the provincial government remained neutral and allowed the marchers to demonstrate.

However, people defied police barricades and tear gas to converge in large numbers at key points like the Lahore High Court.

Matters climaxed as Nawaz Sharif defied a detention order confining him to his estate at Raiwind near Lahore, and headed a motorcade towards the city centre where hundreds of charged up activists had already converged.

As the momentum gathered the police in some places avoided confrontation and watched from the sidelines, making no attempt to stop the marchers. In other places, protestors armed with sticks attacked the buses blocking the roads, smashing windshields and denting carriages.

Television footage showed a policeman fleeing from a group of protestors only to be caught by others and beaten up even as some demonstrators tried to prevent the mob action.

“The public is taking their revenge,” commented one viewer in Peshawar, glued like many others to his television set since early morning.

Some activists occupied the grand old colonial building of the General Post Office in Lahore, on the roof of which they planted a Jamat-e-Islami flag next to the Pakistan flag. Some hurled red bricks at policemen, severely injuring some who had to be rushed to hospital.

The government had already drawn sharp criticism for holding Islamabad-based women’s rights activist Tahira Abdullah in preventive detention on the day the long march started.

At 4 am on Mar. 15, Peshawar police without search or arrest warrants raided the home of prominent lawyer Musarrat Hilali, who is also vice-chairperson of the respected Human Rights Commission of Pakistan (HRCP). As she tried to escape, she fell, fracturing her leg in three places.

“I did not want to be arrested,” Hilali told IPS from her bed in Peshawar. According to law, police cannot detain a woman between sunset and sunrise. Hilali said that the provincial Awami National Party (ANP) government had denied sending the police and that the orders had come from the federal level.

“After I fell and was injured, the police left, but they placed me under house arrest,” she said, recalling her ordeal.

Her house arrest is now over following Gillani’s speech, in which he announced that those arrested or placed under house arrest over the past few days would be immediately released. He also announced the lifting of prohibitory orders that barred public gatherings.

Gillani’s televised speech led to jubilation in city streets across Pakistan. Lawyers and activists danced to drum beats and distributed sweets as Sharif called off the long march.

However, some sound a word of caution.

Zahid Abdullah, programme manager, Transparency and Right to Information Programme, Centre for Peace and Development Initiatives, Pakistan suggests that Chaudhry now needs to ponder over “whether he should be joining the judiciary or remain a symbol of independent judiciary by working from the outside for a truly independent judiciary at its all levels.”

“He has won the moral victory through his tenacity and that of the lawyers. His personal restoration is not an end itself but a means to an end. If he joins the judiciary, he is likely to be bogged down by the practicalities and the compulsions of the judiciary as it stands today,” he wrote in an email circular.

“It would be better if he stays outside and helps political forces by exerting his pressure and influence to suggest and implement the modalities of putting in place independent judges in the courts and carrying out judicial reforms.”

Others are suspicious of the government’s move. Jamat-e-Islami chief Qazi Hussain Ahmed expressed doubts about the move, complaining of not having been taking into confidence about it. “Who knows what pressures were placed on the Chief Justice and what he has been made to agree to,” he told a television anchor.

“Duped again by Mr Zee,” text-messaged a Karachi-based lawyer caustically, referring to Zardari whom he had been hoping the crisis would dislodge.

However, advocate Asad Jamal in Lahore sees the restoration as a success of civil society that has struggled for this cause for the past two years. “It shows the resilience of democracy and the ability of the present rulers to submit to the people’s demand, even if belatedly,” he told IPS.

“I think it would be unfortunate if my fellow citizens, who like to be part of progressive civil society, do not give Zardari credit for this retreat, howsoever belatedly it may have come.”


Suicide Democrats


Op-ed, The News Wednesday, March 04, 2009

Suicide Democrats

Raza Rumi

I am appalled by the recent events that have yet again stirred instability and uncertainty into Pakistani politics. Those of us who voted in last year’s elections expected that the political leaders and Pakistan’s political elites would learn a lesson from our unfortunate history.

We also expected the lawyers’ movement, headed by men of extraordinary calibre, to display sagacity and vision and contribute to the consolidation of a democratic culture. However, what we witnessed was a complete rejection of the Feb 18 polls by the leading lights of the movement, and a few other naïve political actors. When the electorate voted in large numbers and returned the two mainstream political parties to the parliament, the lawyers, instead of accepting that they were wrong to boycott elections, insisted on their narrow and bourgeois interpretation of the term “rule of law.”

Sadly, law, rights and constitutionalism are personalised through the idolisation of the deposed chief justice, as if Pakistan were still a mediaeval kingdom, where the bad King (Musharraf) had to be overthrown, and the good Qazi (Justice Iftikhar) had to be “restored” and vested with all moral, political, executive, military and judicial powers.

The rightwing media has further whipped this game and brought the popular and well-meaning Sharif in direct confrontation with the federal government on this single issue. President Zardari, whom we all hoped had learned his lessons from jail, endless court trials and exile, would act with vision and leadership. Similarly, the Supreme Court, led by Justice Dogar, might have gone an extra mile to prove its neutrality. Alas, how wrong we were!

It is amazing that the long marches, threats of violence and agitation, and questionable imposition of the governor’s rule in the largest province of the country are taking place at a time when the Taliban are capturing one district after another. The media and civil society, instead of bringing down the creaky edifice of democracy, should be pressurising political leaders to act with maturity and not wrangle.

Given the hysteria of the last few days, since the disqualification of the Sharif brothers, the media is portraying the situation as one with no solution. Enemies of democracy, the traditional forces that have always sabotaged civilian rule, are smiling at this imbroglio. There is no paucity of solutions: there are legal and constitutional means whereby the legislature can amend the Constitution on the eligibility of politicians to contest elections and hold offices. A review petition can always be filed that could look at the questions of law pertaining to this matter. Similarly, the promulgation of another NRO is not beyond the realm of the possible. Politics is about bargains and adjustments to strengthen the representative system, rather than bringing it down at every inconvenient juncture.

The PPP must take the initiative to avoid further fissures in the tenuous federation called Pakistan. The current posturing and gung-ho behaviour of the PPP’s Punjab leaders need to be arrested by the central leadership. The PML-N and, in particular, its Quaid, Mian Nawaz Sharif, should also rise above the rhetoric of the 1990s and display flexibility that is essential to a functional democracy. The PML-N has little support in the three smaller provinces of Pakistan and its current rhetoric and thundering against President Zardari, who represents the smaller federating units, is not a good omen. A group of political activists torched the memorial of Benazir Bhutto in Rawalpindi, and there have been strong reactions across the country, especially in Sindh. Why blame the bomb blasts at funerals and mosques when such is the prevalent culture of protest.

If the deposed chief justice has to be restored then the matter must be brought before the parliament and solved through constitutional means. One cannot play the politics of constitutionalism and find solutions in executive orders. If Mr Sharif will lead an agitation with the lawyers who are now placed on the other side of the democratic divide, he will not only engineer the fall of the central government, and the PPP, but will also sign the deed of death for the future of democratic politics in Pakistan.

Over fifty deposed judges have taken fresh oaths under the policy of the sitting government. When the incumbent judiciary is trampled and defamed, the detractors forget that it includes all those judges who resisted Musharraf’s emergency. Once an individual is restored to the top slot, will it become legitimate overnight or the incumbent judges would be fired for being part of the “naqli” judiciary?

The civic activism since 2007 was a harbinger of change in Pakistan. The lawyers’ movement is de-legitimising democracy and political parties (including the largest and perhaps the only national party). One may ask whose purpose is being served here. Is it not what the leaders of the Taliban and other extremist groups maintain about democracy by calling it “kufr”?

The establishment and its proxies must not win this game. At present it seems that both the mainstream political parties and their obstinate leaders are bound to create a situation similar to 1958, 1977 and 1999. However, this time the cost of unrest and confrontation will be detrimental to our future. The vicious cycle, emanating from our inability to handle political squabbles, will this time give way to erosion of democratic space won today with sacrifices, toils and struggles.

The writer blogs at razarumi.com and edits two e-zines: Pak Tea House and Lahore Nama. Email: razarumi@gmail.com

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