Adil Najam
A letter, reportedly written by Barrister Aitizaz Ahsan, is making the rounds on the internet. Those of us who are used to organized propaganda and lies and also have to deal with sophomoric behavior of folks who regularly post under multiple names and multiple false identities on blogs like our own (ignoring that the IP shows up at the back end) can get cynical about what is or is not authentic. However, indications suggest that this letter is, in fact, from Aitizaz.
It is certainly well thought out and proposes a reasoned strategy for what might be done by the lawyers movement IF (and only if) the major parties choose not to boycott the forthcoming elections. What do you think of the strategy offered here? Can it work? Is it the beginning of a new political movement? The beginnings of a “Justice Party”? What is the next steps for the lawyers and judges who have been at the forefront of political events in Pakistan the last many months?
Whether one agrees or disagrees with Barrister Aitizaz Ahsan, the fact of the matter is that he is today a major figure not only in Pakistan’s politics and civil society but also in Pakistan’s polity. Anyone who has ever met him and discussed just about anything - from poetry, politics, culture, history, society, cricket and more - would testify that even when you do not agree with him (and many don’t) you cannot honestly deny his intellectual ability and breadth. Those who wish to deny it should read his book ‘The Indus Saga‘; which, again, can be disputed for its argument but not for its freshness of approach and breadth of imagination.
I say all this not because I wish to contextualize the position taken in this letter, but because I would like our readers to not contextualize their comments by their own current view of the supposed writer. The argument here is worthy of intellectual analysis on its own and one hopes that this is what our readers will do. (Unfortunately, the quality of intellectual engagement with arguments in our comments section has been rather dismal in recent days and sometimes one feels that they have slid into the abyss of sloganeering and naara baazi and no more; we hope, however, that this state is temporary and our readers will soon return to the incisive commentary that made us want to run this blog in he first place; if not, we assure you we have better things to do with our time).
Here, then, is the open letter for Barrister Aitizaz Ahsan to the lawyers community in Pakistan:
December 05, 2007
My dear colleagues,
Asalam o alaikum.
As I write this from a sub-Jail, let me tell you how proud I am of each one of you and of myself to be part of the community that is writing the present chapter in the history of our unfortunate country. As you are all aware we the lawyers are the vanguard in this long over due mammoth battle for civil rights and democracy in our country.
As for myself, jail is not new to me. I was first arrested as a one-year old in the arms of my mother when she courted arrest in 1946 after my father and grandfather had already done so in the Pakistan movement. During the Martial Law imposed by General Zia-ul-Haq I was arrested and detained without trial several times for long terms only because I pursued, even then, the ideals of democracy and an independent judiciary.
Let me assure you that the sacrifices that you have given and the selfless courage that you have shown for a completely selfless cause of an independent judiciary and civilian rule have no parallel anywhere in the world, even in countries from which we have borrowed the concepts of the rule of law and judicial independence. By seeking the restoration of the Chief Justices and Judges of all provinces we are in fact seeking to the save and strengthen the Federation. Ours is a noble cause.
You know that Muneer Malik, Tariq Mahmmod, Ali Ahmed Kurd and I have never wielded any weapons. We have never broken any law. We are no terrorists. We are men of peace. Yet we have treated worst than terrorists while were in jails.
In fact, when arrested, I was only seeking to persuade, through cogent and respectful arguments, 11 senior most judges of the country that an Army General’s attempt to contest elections for the office of President was completely in breach of his own oath under the Constitution. And then what happened? Just because that Bench seemed likely to give a verdict according to the express language of the Constitution, he sacked the Chief Justice of Pakistan and other judges of Supreme Court and of the four High Courts. Only the judges who were willing to legitimize him were retained.
What happened thus was unthinkable in today’s world. It brought disgrace to the country. No such step was ever taken even in any “banana republic”. Yet because of us lawyers and the support we are getting from our kindred in the media, the general public and the students, no one can write off this country as a failed nation. However, for the first time since 1947 we are in the middle of a fresh struggle for independence: independence of civil society and civilian institutions.
It is in the context of ultimately achieving our one point goal of restoring the pre-November 3 status quo and the fact of a form of elections being upon us, that I propose the following:
ONE, Our stand for boycott would be vindicated if ALL major parties also boycott.
TWO, Our stand would also be vindicated if even one of the two major political alliances (ARD or APDM), decides to boycott.
THREE, IF however ALL major parties decide TO CONTEST elections, we must devise a strategy to use the momentum to our own advantage. How? My proposal is that:
In situation THREE the hustle and bustle of the nation-wide election campaign may suck in all politically active persons within a few days. Local issues, of roads, water, sewage, schools and other services, may begin to engage people seeking promises of redress of their immediate miseries. Our one demand may go onto the back-burner of the public mind. People will become pre-occupied with other issues. That is what the regime is counting upon.
What then must be done in situation THREE (and ONLY in situation THREE)?
We have to keep the issue of the “deposed” judges alive. We have to keep the spotlight on our demand. To that purpose I propose the following:
- The Supreme Court Bar Association, while continuing to deny validity to this election prescribes its own OATH to be taken and signed by all CANDIDATES. The oath will require each deponent to swear that, if elected, he/she will move the necessary motion/resolution/law/amendment required to ensure the restoration of the “ousted” judges, to pursue such motion etc, to speak in its favour, and finally to vote for it. (I suggest below the contents of THE OATH).
- The contents of the oath will be widely publicized by representatives of the Bar at all levels through press-conferences and media reports.
- It will be made clear that no candidate who does not take this oath is approved by the Bar as deserving the vote of the people irrespective of the Party he belongs to. If more than one candidate in any one constituency takes the oath, then these alone will be declared as the “pre-qualified” candidates disqualifying others from the support and vote of the people.
- The oath alone is not enough. It is the MANNER IT IS TAKEN that is also vital. To involve the people and the Bar Associations nation-wide, the SCBA and the PBC must give a call that all OATH-TAKING CEREMONIES:i. will be held in District Bar Association premises before the General House;
ii. the oath will be taken by a senior Office-bearer of the DBA and recorded by the electronic media and the press.
iii. records will be maintained at the District, Provincial and Central level by the Bar Associations of the oaths.
iv. daily press conferences and press-releases at the respective District and Central levels will announce the names of pre-qualified candidates issuing the names to the press.- Keeping members involved in this most engaging activity will also make the boycott of the courts (wherever prescribed) more viable and effective for a longer period.
- Since all this activity will be WITHIN THE PREMISES of the Bars there will be no premature confrontation and this activity will be entirely lawful and sustainable. Yet it will become the most prominent activity in public eye, nationally and internationally. In fact I expect the electronic media to run strips of the names of candidates who have or have not taken oath.
- Each ceremony will involve a maximum number of lawyers and political workers across the country. We will also thus cause a synchonised nation-wide activity with the Bars themselves playing the lead role while highlighting our own primary demand. At the end of the day we may have create a large lobby (perhaps even a majority) committed to our demand as we begin to ride the “judicial bus” that may yet be necessary by late January, 2008. You may even today propose a tentative date for that event.
The proposal above is in respect ONLY of situation THREE. In that event, where ALL major political parties are participating in the elections, a mere placid boycott called by lawyers may not work. We have to be realistic. The electorate in that situation will get involved, distracted, indeed consumed by electoral activity. We, and our one demand may be sidelined. And if it is sidestepped during the elections it is unlikely to be of very high priority after the elections. We have to make it the PRIMARY ISSUE IN THE ELECTIONS.
We have a nation-wide network of District Bars. We can make it worth their while for candidates to adhere to our aspiration of restoration of judges. In the process we can, across the country, create a significant and vibrant political activity. And we will also keep the initiative with us. I am sure that within days candidates of parties already committed to the restoration of judges and independent candidates will be jostling for time to take the oath before the full blaze of the media. I can see them printing photos of the oath-taking ceremony on their posters and publicity material to assure the voters that they are committed to us. It will keep the issue of the “deposed” judges right up-front, and may be make it the most inescapable electoral issue.
We are today contesting the most unique case in the history of the world. In this case, our professional fee as lawyers is whatever this country has given each of us to date and our client are 160 million people. But our clients’ interest, our nation’s interest, we must, safeguard at all costs. If one unarmed lawyer could win the independence of this country, I do not see any reason why we, thousands of lawyers, should not be able to achieve victory.
If we put out hearts and souls into this perfectly legitimate and peaceful enterprise we will prevail. We shall overcome.
Yours truly,
AITZAZ AHSAN.
OATH FOR CANDIDATES
I, ___________________ s/o ____________________ candidate in Constituency No. ______ to the ________________________ Assembly do hereby solemnly take oath and swear in this ______ day of __________, 2007(8) that in case I am elected in the forthcoming elections I will devote all my energies, powers privileges, rights and authority, (including the privilege to move and initiate legislation/amendments/motions/resolutions and the right to vote and/or to speak) and exercise them at once from the first available opportunity after taking oath so as to ensure that the Supreme Court and the High Courts revert completely to their status as on November 2, 2007 and that none of the Judges of the Supreme Court of Pakistan and the High Courts of the provinces are in any way impeded from performing the functions of their respective offices by any person, authority or any purported law in the shape of any PCO or any other Proclamation by whatever name called and for that purpose to do all in my power and authority till such time as I am member of the Assembly.
DEPONENT.
VERIFIED:
Office-bearer DBA _______.
To be honest I find this letter a bit surprising. It is a major shift from Aitazaz Ahsan’s very idealistic stance to a pragmatic one - Is he(being forced into) following the party line?
Would it not make more sense to detail the benefits of option 1 and 2? and a strategy to achieve consensus on the boycott?
Aren’t options 1 and 2 more appealing to the general public?
I think the collective message to the public at this time should be DONT go to the POLLS! Lets see how much credibility the election has with less than 5% turn out!
It’s too soon to give up on principles, and too early to be looking for backup plans and option 3s in my POV.
So how does one justify this letter………………. I would classify this under lessons from history……….
A Letter to Benazir Bhutto…
From Ghazala Minallah Daughter of Late Justice Safdar Shah
Dear Mohtarma Benazir Bhutto,
I was absolutely shocked and amazed at your latest statement regarding the judiciary. How could you, of all people, say that you believed in an independent judiciary BUT that personalities did not matter? If personalities did not matter then why was Justice Iftikhar Chaudhry removed?
Why were some judges locked up whereas others were not? If personalities did not matter then why is Musharraf waging a personal war against the CJ? You do not have to be a genius to figure out the reason. How can you separate the personalities from the institution? What you have on Constitution Avenue right now is a besieged and helpless building. The unfortunate but harsh truth is that right now we are a besieged nation as well.
Ms. Bhutto, I am writing to you because your statement has shocked and disturbed me to the extent that I feel I have no option but to reach out to you in this manner. I would like to remind you, since you seem to have forgotten, that you too were the victim of a corrupt judiciary. If Justice Iftikhar had been the CJ of the Supreme Court at that time then perhaps your father would never have been hanged. Had the entire bench been like the present one then there would have been a unanimous judgement. But the judgement was not unanimous - it was a 4 to 3 split – just one judge too many
on the wrong side. One more upright personality on the right side and our history would have been different. So yes, personalities certainly do matter.
Ms. Bhutto, I am writing to you in desperation because I am the daughter of Late Justice Safdar Shah, who was one of the three dissenting judges. When Mr., Bhutto was the Prime Minister my father was CJ of the Peshawar High Court. Both these headstrong personalities did not get on with each other, and because of Safdar Shah’s constant criticism and disagreement regarding the reforms and policies being introduced by the PM, the latter had him prematurely retired by introducing the 5 th Amendment. After the coup, when Gen. Zia took over, and Mr. Bhutto was charged and convicted of Conspiracy to murder by the Lahore High Court, he appealed to the Supreme Court. Gen. Zia wanted Mr. Bhutto dead and he did his best to manipulate the bench. It soon became obvious as to WHY Safdar Shah had recently been appointed as judge of the Supreme Court. Having the typical mindset of a dictator, Zia was sure that he would be vindictive and take revenge. But, he was wrong and
the rest is history. WHY? Because three of the judges had the courage to say NO, and did not give in to the threats and pressure exerted on them. So yes Ms Bhutto, personalities do matter. Had Justice (retd) Wajiuddin’s father , the late Hon.Waheeduddin not been prematurely retired on extremely dubious medical grounds, history could have been different, No one can dispute the fact that the judgement was wrong since Justice (retd) Nasim Hassan Shah confessed on a talk show on TV a few years ago that the judges were threatened and pressurised into giving that judgement. Yes Ms. Bhutto, they were, and I am a witness to that fact.
Ms. Bhutto, our paths crossed briefly and both of us were victims of a corrupt judiciary which colluded with a Military Dictator. But I am not writing this letter to lament about our plight, since nothing we went through can possibly compare to the torture and torment you and your family went through. Have you forgotten the times when you visited your father in prison? Have you forgotten the humiliating tactics those heartless tyrants subjected you and your family to? Have you forgotten the last time you went to visit him in prison and were not able to hug him? Whenever I think about that grave injustice, which was nothing but a judicial murder, my heart goes out to you and what you suffered then and have suffered since. That is precisely why I am at my wits end and cannot understand WHY you cannot value
the importance of independent judges.
Ms. Bhutto, do you think you are invincible? Are you so blinded that you cannot or will not acknowledge the truth? Does it never occur to you that someday you might have to face those judges in the present Supreme Court?
Well, let me please spell it out. With independent judges you get a verdict you deserve, whereas with the present kind of farce you get a judgement dictated by the intelligence agencies or the dictator himself. Do you honestly not know or are you honestly not aware of the grave injustice going
on? Does it not send a chill up your spine that if the Chief Justice of the Supreme Court can be tossed around by Musharraf it could very well be you as well? For God’s sake Ms. Bhutto, WAKE UP. You owe it to your father as well
as to the nation to defend the judiciary and fight for its independence.
My father continued to be persecuted even after the judgement and we were forced to leave the country. But I will never forgive or forget those responsible for the torment my father went through during his last years. He died an unhappy man and was never able to get over the fact that he was not able to prevent the cold-blooded murder of an innocent man. And that innocent person was your father for God’s sake! I have vowed that I will continue to fight for the independence of the judiciary come what may! I was
confident and certain that once you were back you would definitely take up this battle and lead the nation towards sanity.
Ms. Bhutto, is it not obvious to you WHY Musharraf wants Justice Iftikhar out of the way? Ask the families of the ‘missing persons’, who for the first time were being heard and for the first time they could see a light at the end of the tunnel. Everyone knows who is responsible but no one before this CJ had the courage to take up the matter. Ask the countless downtrodden people who had discovered that they could have direct access to the CJ through Suo Motto notices. Ask 2 and 3 yr old Aneela and Tasleem from Naudero Feroze in Sindh, ask 4 yr old Shaneela or 6yr old Munni or 8 yr old Marina from Mardan what this Chief Justice has done for them. These innocent little girls were the victims of jirga decisions according to which they were to be handed over to the enemy as a symbol of truce. It was Justice Iftikhar who took serious notice of this barbaric custom and passed strict orders to the local authorities to prevent this atrocity from carrying on. It was during
the tenure of this CJ that serious environmental disasters were averted. Who took notice of the New Muree Project? Who took action in the Dungi ground case? Who prevented Shah Shrabeel from converting a public park in sector
F-7 Islamabad into a multi-million commercial project? Ask the poor people living in the adjacent Christian colony what that decision meant to them.
Sharabeel has taken up arms against the CJ since this decision because for that class of people the slum dwellers are a low life who do not deserve any special attention. I can go on and on about the cases in which the SILENT CRIES OF THE DOWNTRODDEN of our society were being heard by a sympathetic judge for the first time. Ms. Bhutto, these are the Suo Motto notices which Musharraf said were a waste of time in his speech justifying the emergency.
If personalities did not matter then why is Musharraf so threatened by this man? On any and every occasion he gets he attacks and tries to malign the CJ with a vengeance. His abnormal hatred for the man has exposed the truth. He
knows very well that this man was the biggest hurdle in his plans to destroy what is left of our country. The coup was against the judiciary, the ‘emergency’ was created to sack the CJ and the other conscientious judges.
Musharraf needs to be told that we are not a nation of imbeciles and that everyone is aware of the truth and the depth of the situation. We all know that the ‘crisis’ in Swat or the threat of terrorism had NOTHING WHATSOEVER
to do with the sacking of the CJ and the locking up of him and the other judges. Once again Ms Bhutto, I beg you to think very carefully about where you are heading. I beg you not to betray your father or the nation. I beg you not to fall into Musharraf’s trap and to boycott the elections. The
rigging has already taken place, so why are you allowing yourself to become a party to this farce? I beg you to realise that you are the one holding the trump card right now. If you boycott the election, THEY lose face. But if YOU participate, you not only lose face, you lose the confidence and the faith the people of Pakistan have in you. Last but not least, you owe it to Bilawal, Bakhtawar, Aseefa and all future generations of our beloved country.
Yours sincerely,
Ghazala Minallah
D/O Late Justice Safdar Shah
Genuine or not ……….It is touching and on the pulse…would you not agree??????
where Mr. Aitezaz Eshas was when secret agencies were kidnapping, torturing and killing people in KARACHI during his own party’s government and where all those lawyers and judges were when Nawaz shareef was being tried in the MILITARY COURT for hijacking Musharraf’s plane???
This combined with the struggle started by NS to galvanize the opposition, combined with the protests of the civil society, students, lawyers, judges and ordinary citizens heralds a new dawn. Insha Allah the dark night would be over and the perpetrators of coups and emergencies would be brought to book with lessons for any future military (mis)adventurer.
Thank you Adil Najam for posting this brilliant piece reportedly written by Barrister Aitizaz Ahsan. Only a few moments ago, I have posted my response to some bloggers’ comments on my piece running below yours. I take the liberty by posting some portions of my response here as well due to its relevancy to your piece.
The magic of a blog like ATP is its capacity to provide equal opportunity to readers who wish to express their views , even though the motivation and identities of some bloggers remain unknown to readers. The inherent danger that some may abuse a forum like this is insignificant as compared to the benefits it offers. In this age of information, even an average reader can easily judge who is being intrusive and showing arrogance and self-righteousness. I believe it is more rewarding when ideas are challenged and issues are debated in the open. This is how a writer can see both the strengths and weaknesses of his/her presented thoughts.
And if we truly believe in freedom of expression, we must not only tolerate dissenting points of view, but should also show courage and grace in accepting the validity of others’ views. After all, the right to free speech is not meant for popular speech only - rather it is created to safeguard the unpopular one. Voltaire once said something to the effect that, ” although I abhor what you say, I will defend your right to say it till my death.”
In my view, Musharraf has violated the Constitution and the rule of law in Pakistan. There is nothing personal here. Though some bloggers here have deliberately tried to change the subject by attacking politicians whenever anyone pointed out Musharraf’s illegal actions.
I have yet to see a good legal argument for Musharraf when his actions have resulted in the imposition of Martial Law, the suspension of the Constitution; the dismantling, uprooting and manipulation of the judiciary; the arrest, detention and beating of lawyers, political and human rights activists, journalists, artists and other members of the civil society; the unconstitutional infringement of freedom of the press, freedom of speech and freedom of association; and the incommunicado detention of the deposed Chief Justice and other judges of the apex and high courts, and eminent lawyers.
By committing the above-mentioned illegal and unconstitutional acts, I believe that the Musharraf government has caused long-lasting damage to the state structure and institutions, and furthermore has struck a major blow to the principle of separation of powers and to the democratic process in Pakistan.
The constitution of Pakistan is the Supreme law of the country. Therefore, I firmly believe and advocates that the Constitution cannot be suspended or rendered ineffective, or held in abeyance by any individual or entity, either governmental or non-governmental, by the use of any law or doctrine. I have already quoted Article 6 of the Constitution in my piece, which reads , “Any person who abrogates or attempts or conspires to abrogate, subvert or attempts to conspire to subvert the constitution by use of the force or show of force or by other unconstitutional means shall be guilty of high treason.”
By declaring Martial Law, the Musharraf government, in addition to causing other harm, has suspended the fundamental rights of the people of Pakistan. Such suspension is a violation of the Constitution. Article 8 of the Constitution clearly states that laws inconsistent with or in derogation of fundamental rights to be void. Article 19 of the Constitution protects freedom of speech; Article 15 safeguards freedom of movement; and Article 16 guarantees freedom of assembly.
In addition to the aforementioned violations, the unconstitutional and illegal actions taken by the Musharraf government has also violated principal international laws and covenants.
The Universal Declaration of Human Rights by acknowledging that disregard and contempt for human rights have resulted in barbarous acts in the past envisions a world in which human beings shall enjoy freedom of speech and beliefs and freedom from fears. It strictly prohibits its member states from taking any actions reflecting disregard and contempt for human rights.
Article 9 of the Declaration states, “No one shall be subjected to arbitrary arrest, detention or exile.”
According to Article 19, “Everyone has a right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
Moreover, Article 20 reads, “Everyone has a right to freedom of peaceful assembly and association and no one may be compelled to belong to any association.”
The Human Rights Watch report dated November 8, 2007, correctly captures the extent and scope of brutalities perpetrated by the Musharraf government against civil rights activists. The report states, “Human Rights Watch has received credible reports that the Pakistani military’s feared Inter Services Intelligence (ISI) agency and Military Intelligence (MI) agency are jointly detaining and interrogating them. Both agencies have a well-documented history of “disappearances” and the use of torture against political opponents. Families throughout the country have not had access to the detained lawyers except in rare cases. Musharraf has defied domestic opinion and the international community by rounding up many of Pakistan’s finest lawyers and subjecting them to solitary confinement and very possibly torture because they protested his ugly power grab”. The past conduct of the security services leaves the world with no choice but to assume the worst about the fate of those being held incommunicado”.
In conclusion I would say: Let’s work together for the supremacy of the Constitution and the rule of law. This is the only way we can collectively succeed as a nation.
It is I think a very smart realistic approach and will galvanize the students, civil society and the Lawyers to demand of the Politicians to categorically declare there position before the election and the q league will have to decide if they think the people are going to be in power or Musharrraf. Actually I think the Poeple should take such an oath too, I will make a petition for people to sign too and post it on
www.dreampakistan.blogspot.com
Those who agree can sign it and I will forward the list to SCBA
24 judges of high courts ‘cease to hold office’
ISLAMABAD, Dec 4: The federal government has notified that 24 judges of the High Courts of Sindh, Punjab and NWFP have ceased to hold office with effect from November 3, the day emergency was proclaimed in the country.
Separate notifications dated December 3 were issued on Tuesday by the Law, Justice and Human Rights Division.
According to the notification regarding Sindh High Court, 12 judges who ceased to hold office are Justices Rahmat Hussain Jafferi, Khilji Arif Hussain, Aamir Hani Muslim, Gulzar Ahmed, Maqbool Baqar, Muhammad Athar Saeed, Faisal Arab, Sajjad Ali Shah, Zafar Ahmed Khan Sherwani, Salman Ansari, Abdul Rashid Kalwar and Arshad Siraj.
In Punjab, 10 judges of the Lahore High Court who ceased to hold office are Justices Khawja Muhammad Sharif, Mian Saqib Nisar, Asif Saeed Khan Khosa, Muhammad Tahir Ali, Ijaz Ahmad Chaudhry, M. A. Shahid Siddiqui, Muhammad Jehangir Arshad, Sheikh Azmat Saeed, Umar Atta Bandial and Iqbal Hameed-ur-Rehman.
In NWFP, two judges of the Peshawar High Court ceased to hold office. They are Justices Ijaz Afzal Khan and Dost Muhammad Khan.
The identical notifications said the judges ceased to hold office “in pursuance to Article 3 of the Oath of Office (Judges) Order, 2007 (Order No. 1 of 2007)”.—APP
It is said, that the Creator will uphold justice even it if unIslamic but will not uphold injustice even if it Islamic.
Justice Munir, this batch of judges have turned their backs on you. The doctrine of necessity is dead. With each judge’s refusal, more dead.
Justices Cornelius and Jan. Wish you were here. You would be proud.
Pakistan Zindabad
Pakistan Pa’indabad
An interesting proposition and it does appear to be authentic. I agree with his analysis of the situation, the electioneering process will suck all the air and this keeps the focus on the judiciary. He is also betting on the fact that majority of the people are in support of the deposed judges and he might be right about that.