The task before Justice Chaudhry

By Zubeida Mustafa
Source: Dawn

WHAT prompted the government`s change of heart at the eleventh hour that led to the announcement about the reinstatement of Chief Justice Iftikhar Chaudhry?

Whatever other factors may have been at play, we also know that America, Britain and the Pakistan Army were active behind the scenes.

But did anyone note that in the days that the media attention was riveted on the long march there was a pause in the terrorism that has become a way of life in Pakistan? The Taliban and their cohorts were, so to say, on their best behaviour. Warnings by Mr Rehman Malik, the security adviser, of terrorist strikes were not taken seriously by the protesters nor by the militants who held fire in the critical period. True, after making peace in Swat, the army had helped by facilitating deals with militants in Bajaur and Darra Adam Khel. Twelve Taliban were also released.But as Pakistan teetered on the brink for four days, it was difficult to believe that the two events — the political crisis and religious militancy — were not linked. The militants do have a method in their madness. To prove this, they struck on Monday evening in Rawalpindi where a suicide bomber blew himself up in a busy marketplace along with several hapless victims.

While we focused on the lawyers fighting for the rule of law, we forgot to read the fine print of the agreement concluded with Mullah Fazlullah in Swat via Sufi Mohammad of the Tehrik Nifaz-i-Shariat Mohammadi. True, the draft of the Nizam-i-Adl Regulation 2009 signed by the NWFP chief minister on March 9 ostensibly provides for a new system of dispensing justice that is speedy and is therefore presumed to be fair. But can we be certain? The TNSM chief has now asked the law officers to stop attending the courts in Malakand because his qazis will decide cases under his supervision. And what are the laws that will be applied? The draft gives in Schedule 1 a list of 91 laws that are already in force.

But there is a caveat. Section 3 (2) makes it clear that all laws that are not in conformity with the injunctions of the Quran and Sunnah will “cease to have effect in the said area”. What are these laws and who will decide that they do not conform with Islamic injunctions? Which fiqh will be applied? There are no answers to these questions in the draft.

But if the `understanding` concluded by the representative of Sufi Mohammad and the commissioner of Malakand on March 4 is something to go by, the above queries will be answered. Read points two, four and six carefully. Under these the two sides are to “start a campaign against obscenity and vulgarity”, “close music and CD centres” and “expel prostitutes and pimps from the region”. This understanding gives a fair idea of what is in store. Recall the events in Afghanistan in the 1990s when the Taliban ruled in Kabul and you would know what to expect. The ANP government in Peshawar has now said that this system will be extended to the entire province.

One ponders the implications of the Swat agreement and other peace accords that are being concluded with the militants on the plea that too many people are being killed. You are still trying to figure out what is happening.

And then on March 13 comes the bombshell. It is the International Crisis Group`s report number 164 titled Pakistan The Militant Jihadi Challenge. Its findings are not something new — at least not all of them — but the analysis is significant. It notes, “The radical Sunni [Deobandi] groups are simultaneously fighting internal sectarian jihads, regional jihads in Afghanistan and India, and a global jihad against the West.”

The report puts into perspective what we have known since the 1980s when Ziaul Haq with American support decided to use Islam for his geo-strategic goals. The Taliban are the products of the madressahs along the Afghan frontier but, as the ICG reminds us, the Sunni extremists, mainly the Sipah-i-Sahaba and its offshoot Lashkar-i-Jhangvi, that served as `jihadi proxies` for the army in Kashmir, come from the Punjab-based network of madressahs.

They now provide weapons, recruits, finances and other resources to the Tehrik-i-Taliban Pakistan. Aligned to them are the Jaish-i-Muhammad and Lashkar-i-Taiba. The latter two enjoyed military patronage and, according to the ICG, still do.

The ICG commends the recent action of the PPP-led federal government and the PML-N government in Lahore against the Punjab-based jihadi groups for their role in the Mumbai attacks. The Pakistan government promptly offered to send an ISI representative to India to cooperate in the investigations. Then it backtracked. As dossiers were passed to and fro between New Delhi and Islamabad and investigations picked up, Chief Minister Shahbaz Sharif`s government was dismissed.

A coincidence? The ICG report observes, “The aftermath of the Mumbai attack presents an opening to reshape Pakistan`s response to terrorism, which should not rely on the application of indiscriminate force, including military action and arbitrary detentions, but on police investigations, arrests, fair trial and convictions. This must be civilian-led to be effective.”

Fair enough. But we are also told that the civilian investigating agencies such as the FIA, the CID, and the IB lack the resources and the authority to perform this function. They cannot even gain access to mobile phone records and other data without the ISI`s approval. The report concludes, “The army and the powerful ISI still dominate — and hamper — counter-terrorism efforts…. Proactive enforcement will be vital to containing religious militancy.”

At the moment it is clear that Chief Justice Chaudhry will have his hands full. The relatives of the involuntarily `disappeared` expect him to pursue their cases as zealously as before. Such people need to be traced, their whereabouts disclosed to their families while their innocence or guilt is established by the legal process. True, this may be a bit irksome to authorities used to acting arbitrarily but if the rule of law is to prevail this must be done. And how will the chief justice see the legal paradox created in Malakand?

Wasn`t the lawyers` movement aimed at resolving dichotomies such as these? And by a judiciary that is independent?

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One thought on “The task before Justice Chaudhry

  1. This POST is three year old and by this time it should be more clear about the workmanship of Justice Chaudhry.

    I do not have any in-depth knowledge about the issues raised in this Post.

    But it is the last four words 'judiciary that is independent' attracted me for following comments:

    Many of us must be knowing urdu-cum-hindi writer Munshi Prem Chand. He was born and was based in eastern part of UP (India). He died much before 1948 so he lived his life in India. Born very poor and was named as Dhanpatrai (means owner of wealth) but later on he changed his name as Prem Chand. He wrote too many novels and short stories the concept of all his writings are still applicable in our daily life so he is alive and would remain alive. Godan and Gaban are his much popular novels. Films and too many short story serials have been produced on his workings. His one short story is named as ALGOO CHAUDHRY.

    ALGOO CHAUDHRY was appointed Sarpanch (chief justice of village) of his village. His friend in attempt to get some benefit of this appointment dragged his enemy into litigation over use of stream water for fields. ALGOO CHAUDHRY delivered judgement against his friend. His friend was shocked. Algoo explained him that I am your friend but at the same moment I was to deliver judgement as an INDEPENDENT person.

    Every Chaudhry (Judge or Sarpanch) must perform or allowed to perform as an INDEPENDENT. .

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