current affairs
Law sans order

  By Zara Tajwar

Law and order are two words that are so frequently used together that they have become a phrase "law and order". But recently, a certain order regarding law has created considerable disorder. The "men in black" have come out in numbers on the streets  to protest against yet another arbitrary act of the military regime.

At this point when Pakistan is witnessing perhaps the most gruesome turmoil of her history, the youth of this country have every right to know what is going on. It is all over the electronic and print media, but may be the legal terms and phrases used in the experts' analyses are beyond the comprehension of some, so let's deliberate on the present situation in layman's language.

The struggle for the freedom of judiciary is perhaps as old as the birth of Pakistan. From the very first day efforts had been made in this regard, but all in vain. From Moulvi Tameez Uddin's case to the present day sacking of the Chief Justice of Pakistan, our judiciary is being continuously high jacked on one pretext or the other by the executive. Chief Justice of Pakistan, Iftikhar Muhammad Chaudhary, is the fifth judge to face a Presidential reference. He was appointed as Chief Justice of Pakistan on June 30, 2006. Since then he had been working on his post with strict professionalism. He earned fame in taking bold steps in the case of privatization of Steel Mills and the missing persons' cases. Suddenly, on 9 March, we came to know through  media that the Chief Justice was called in the camp office of the President where the President told him about the charges against him and asked for an explanation. It is alleged that he couldn't give any satisfactory explanation, upon which he was declared non-functional. Subsequently, a reference under Article 209 of the Constitution of the Islamic Republic of Pakistan, 1973, was sent to the Supreme Judicial Council.

Stimulants

It is widely believed that the real stimulant behind the reference was an open letter. The letter was written by an advocate of the Supreme Court and television compere of some repute, namely Naeem Bukhari. In that letter, the learned advocate had objected on the unprofessional behaviour of the Chief Justice and the illegal appointment and promotion of his son, Dr. Arsalan.

President Musharraf, in an interview on a television channel, said that there were complaints against him by senior officers and judges. The Prime Minister's Secretariat took action on those complaints and prepared the reference against the Chief Justice.

Charges

Initially, it was said that the charges against the Chief Justice were so grave that they couldn't be made public in the interests of state and sanctity of judiciary. Now that the much awaited and long guarded reference has been publicised, the charges against him seem to be totally ridiculous. Apart from charges of demanding extraordinary protocol and being rude to lawyers, a substantive part of the reference is about the misdemeanours of his son. The Chief Justice is damned for the sins of his son, Dr. Arsalan. It has been found that his son got himself transferred in a 'lucrative' department by unfair means. It is contended by the other side that the persons who gave Dr. Arsalan undue favours should be investigated first and brought to book rather than accusing the Chief Justice downrightly for using his post and influence. Let all those who favoured his son prove successfully that they acted under a threat from the Chief Justice. Till then, the Chief Justice cannot be prosecuted for the misuse of his powers and position.

Forum

The Constitution of the Islamic Republic of Pakistan, 1973, provides for three organs of the state i.e., the Legislature,  the Executive and  the Judiciary. Legislature is commonly called the parliament and it is the law making body of our country. Executive branch of the government enforces the law enacted by the Legislature and Judiciary performs the function of resolving any dispute that arises in the implementation of law. Each of these organs is independent of the other, but for the smooth working of the state machinery, there is a system of "checks and balances". Through this mechanism of check and balance, every organ can keep effective check on the other organ so that none of these become despotic.

Normally, the Executive does not interfere in the affairs of the Judiciary. But for the sake of check, the constitution provides for the creation of an independent judicial body for the purpose of inquiry into the allegations of professional misconduct by the judges. This body is called Supreme Judicial Council. It comprises the Chief Justice (if the inquiry is not against him, otherwise the acting Chief Justice) and two senior most judges of the Supreme Court and two senior most judges of the provincial High Courts. Its function is that whenever a reference is made against any judge, this council conducts inquiry and sends its findings to the referring authority, which takes further actions in the light of the Council's findings.

Thus, the President, on 9th March, called the Chief Justice of Pakistan (or he himself came to the camp office according to the President's version of the story) and showed him the reference (a concise legal document stating the allegations against the Chief Justice) prepared by the Prime Ministers' Secretariat. There are contradictory statements from both the sides about what actually happened behind the closed doors, but the Chief Justice was declared "non-functional" on the media, when he was still inside the camp office and the reference was sent by the President to the Supreme judicial Council for inquiry. 

At present, the action taken by the President is widely disputed. The manner in which the Chief Justice was declared non-functional and the reference filed in the Supreme Judicial Council is disputed by a large number of jurists and experts. Currently, the constitution of the very body of the Council is under criticism. The acts of the President are termed as arbitrary and dictatorial and are condemned widely even though the President tried to clear his position in an interview. The most amazing thing is that the intellectual and educated people of the 'land of the pure' have come out from their deep slumber by this brutal stabbing in the heart of the judiciary and the whole episode has become a hard nut to crack for the government. The protest by the bar is unprecedented in the history of Pakistan. The lawyers have been continuously boycotting the court proceedings and staging peaceful demonstrations. Membership of the advocates taking the government's side, including certain ministers, have been cancelled by the Bar Councils. The protests, instead of abating, are gathering momentum with the passage of time.

Like most of you, I am not very happy at the present law and order situation. The protest is taking its toll; political parties have jumped into the fray and are politicizing the issue. But the peacefulness of the protesters is highly commendable.

The matter is right now sub judice (pending inquiry before a judicial body) therefore we cannot comment on its outcome, but we can only pray that Allah Almighty bestow prudence and patience and ability to judge impartially, upon those who have the reigns of the state in their hands.