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Aitzaz Ahsan, Senior Advocate, Supreme Court of Pakistan
This account of the lawyers’ struggle to defeat military dictatorship in Pakistan and restore the chief justice to his post was given by one of the lawyers who spearheaded the movement, Aitzaz Ahsan, at the fifth consultation on the Asian Charter for the Rule of Law in Hong Kong from 20 to 24 April 2009. Although the story has been told in many other places, mostly in third person, the speaker, a Senior Advocate of the Supreme Court and former president of the Supreme Court Bar Association, offered intimate first-person insights into how the movement found its way and finally succeeded in its goals. Here he takes up the narrative after the chief justice’s initial removal and house arrest along with his family on 9 March 2007, for failing to cooperate with the demands of the president, General Pervez Musharraf, to extend his authoritarian rule. For detailed accounts and photographs of the movement, visit the Pakistan Lawyers’ Movement website: http://pakistan.ahrchk.net/chiefjustice
There was a shockwave in the legal community. People were dumbfounded and confused. The general public didn’t know what to do; however, the lawyers immediately provided the leadership and the strategy. It was announced on the 9th of March when the chief justice was arrested that he would appear before the Supreme Judicial Council on the 13th of March. We immediately gave a call to all lawyers in Pakistan to turn up before the Supreme Court to receive the chief justice, who would be arriving to appear before the Supreme Judicial Council.
At this time General Musharraf was very secure in his office. There was no challenge to him. The big popular leaders were all in self-exile when the lawyers raised the banner of revolt. Nobody thought that Pervez Musharraf’s authority could be challenged. The army was with him. The judiciary was with him. All judges except the chief justice had sworn oaths of allegiance to Musharraf and were expected to side with the general rather than with the chief justice. Nobody even knew whether the chief justice would hold out or not in his resolve not to resign. Everybody thought that he would hold out for four, five, six days. But it was the power of one: one man refusing to submit and purging himself of the sins of the past.
We did not know that we would have to sustain the movement for over two years. We thought that either the chief justice would relent or the military would step back and the issue would be resolved within a matter of weeks or months. We did not know that we would be going through an intense movement that would last two years, starting on the 9th of March 2007 and concluding on the 16th of March 2009.
 We were faced with several challenges. The first challenge was the selection of the forum in which to fight. Pervez Musharraf had selected the Supreme Judicial Council as the arena in which the legal battle would be fought against the chief justice. This was a hugely biased forum because it consisted of judges who were all in line to become chief justice and would profit by his removal. We had to decide whether to fight in this forum or move out to the Supreme Court. We ultimately took the decision to move to the Supreme Court. I’ll explain more about that later.
The second challenge was, what role to give to the chief justice in the movement. He was iconic, but he could not go into the public and he could not perform any judicial or administrative functions because he had been suspended from office. We decided that we would ask him to address Bar Associations only.
Third, how to mobilize the people and get them behind us? We decided to take the chief justice to the Bar Associations by road and have him sit in the front seat so that he would be visible to the crowds, and the driver would be a senior lawyer. I was chosen for that task.
The fourth was, when taking the chief justice around, how to keep him non-political? We decided that he would have no contact with the media, public and politicians, even though he sat in the front through those long journeys.
We obviously were very apprehensive about the proceedings before the Supreme Judicial Council. On the first day that these proceedings took place, 13th March, the chief justice was manhandled. The event occurred because the government wanted to give the impression to the world that the chief justice was back in form and was being driven to the Supreme Judicial Council hearing in full glory. The chief justice, as he came out of the house and was asked to sit in his car, saw an official government television camera on a platform waiting to take the shot of him being driven, and he refused to get into the vehicle. He started to walk, as it is just a kilometre from his residence to the Supreme Court. The police had orders to push him into the vehicle and tried to force him inside.
When the chief justice finally got to the Supreme Court he arrived in someone else’s vehicle and around two thousand lawyers surrounded it. I was in the crowd when the chief justice spotted me and asked me to represent him as his lawyer in the Supreme Judicial Council. I said to him, “You can get any lawyer. All the lawyers in Pakistan will be available.” He said, “No, in the four days I have been under detention the only thing I have been thinking of is who to engage as a lawyer when I come out, and I want you.” I said, “Of course.”
So we went up to the Supreme Judicial Council and the first issue was to determine whether they were capable of doing justice, and we realized that they were not. I pointed out that the chief justice had been manhandled by the police and said that, “He is your chief justice, take action.” And they couldn’t do that. They said, “He shouldn’t have started walking, he should have got into the car and come.” So I realized that they wanted to get rid of the chief justice as soon as possible. The presiding officer said, “Start the proceedings.” And I said, “I don’t know what the case is against my client. I just met him and he asked me to represent him.” He said, “Don’t delay. We have to decide in two, three days.” I said, “Whether you have to decide in two, three days or not I can’t defend him in two, three days.” We had a heated exchange with the chief justice sitting quietly. One said, “Be careful, Mr. Ahsan, these proceedings are in camera.” I said, “I can’t help it if they’re in camera or not, but one thing I will do is make sure that you don’t convert yourselves into a kangaroo court.” So then we started a heated exchange again. He said, “You’re in contempt.” I said, “You can sentence me for contempt and it would be a good thing because it would show your bias.” Finally, when I was seeking an adjournment to study the case the presiding officer said, “Don’t worry, have faith in God.” I said, “I have faith in God, I don’t have faith in you. That is my problem.”
Ultimately we managed to get an adjournment, but we were so shaken that when we came back we had to make two quick decisions. One was to challenge the Supreme Judicial Council’s proceedings before the Supreme Court. There was some debate on it. Even the chief justice thought that it might not be possible. I persuaded him that it was only a tribunal and that it was acceptable that it be subjected to review, even in the High Court, but we would take it straight to the Supreme Court because the chief justice was involved. And second, we decided that we would start taking the chief justice to address the Bar Associations across the country so that maybe we would be able to mobilize the people.
The petition in the Supreme Court was unique. Nowhere, in the known history of the world had a chief justice the occasion to petition against a president in his own court. We excluded the possibility of the biased judges themselves sitting in the court by naming them as respondents. The remaining 13 members of the Supreme Court heard the case: a full court minus the members of the Supreme Judicial Council. The case lasted three months and there were hearings Monday to Friday, without a break. The judges were initially very hostile to my petition and they said that, “You are before the Supreme Judicial Council and they are the five senior-most judges, judges of rank and law who can examine the evidence.” But ultimately I was able to persuade them, both on jurisdiction and on the merits of the defence on behalf of the chief justice. The court reached its unanimous verdict reinstating the chief justice on the 20th of July 2007.
When I was arguing the petition challenging the charge sheet, which was called a reference by the president to the Supreme Judicial Council, I said, “I will demonstrate to the court that nobody has read the reference or the charge sheet. Not the president, not the prime minister, whose signature is also on the sheet, not the law minister, not the law secretary, not the attorney general sitting here, not the senior lawyer sitting here, none has read the reference.” So they asked, “How can you prove it?” And I said, “I’ll prove intrinsically that they have not read the reference.” In an earlier case a bench of the Supreme Court had decided that if the president had not applied his mind to the signature then it was not enough that he had said that the prime minister or someone else had applied his mind: if he had not applied his mind then the signature would be invalid. So I said, turn to paragraph 29, and we read paragraph 29 out loud, then came to paragraph 30, then paragraph 31, and they said, “What are you doing, joking with us?” Then I said, “Now kindly turn the page to paragraph 32.” Paragraph 32 was a blank of ten lines, with “32” and “deleted” typed in front of it. And then there was paragraph 33, blank. I said, “Had the president gone through it, he would have drawn a line through this.” And when they settled down I said, “Now go to paragraph 38.” Paragraph 38: deleted. Then I said, “Go to paragraph 43.” Paragraph 43: deleted. And this was the reference made by the president against the chief justice, signed by the prime minister.
Then there was another charge—I don’t know how they made it up—that in Appeal No. 1432 of 2003 the chief justice gave a judgement dismissing the appeal in open court but a month later when the judgement went on the formal record the appeal had been accepted, and so he must have made a deal. I said, “I have two answers to this charge. I have affidavits from both senior lawyers who appeared in this case that the charge is false and that the appeal had been dismissed. But nevertheless, they got this from somewhere, so the judgement is also annexed, and let’s take a look at the judgement.” It was four pages and I let them go through the judgement and then they said, “What does that prove for any party?” And I said, “It doesn’t prove anything for any party but it does prove that nobody read the documents relating to the reference.” They said, “How can you prove that?” I said, “Look at the bench. The bench does not include the chief justice, only seven justices. And if the charge is correct then why not you, you, you and you are not also in the dock defending yourselves instead of the chief justice and why am I defending him in front of you?”
When I concluded my argument, incidentally, we were in Courtroom No. 1, and that is the courtroom of the chief justice, the largest of the Supreme Court. And there are portraits on both sides of all the former chief justices. I said, “My Lords, please look at these portraits.” I pointed out some of them, the more famous ones. Then I said, “Each man has selected his own photograph or portrait. That space is empty. It is for the current chief justice. Mr. Iftekhar Choudry has been chief justice since the 5th of June 2005. Even if you remove him today, his portrait must go up there. It’s your decision, your call to remove him or not. My call is to select the portrait which goes up.” And I said, “The photograph of the chief justice being manhandled is the one that will go up if you do not reinstate him.”
As to the chief justice’s travel, it was very important as a twin strategy, because without the chief justice demonstrating that the people of Pakistan were with him, non-violently, peacefully, the judges might not have given a decision in our favour, and certainly not a unanimous decision. The chief justice pulled such dense crowds along the way that the journeys took long hours. From Islamabad to Peshawar, a hundred miles, it took 15 hours; 150 miles to Lahore was 26 hours, and this is not a narrow road but an eight-lane highway. I did all the driving and most of it was non-stop. And all of it was covered. All around the road, everyone came out to see the chief justice, wanted him to stop and address them; he would not, I would make short speeches along the way. And every inch, every minute, was covered by live television, even though we ourselves did not use any facilities. Even BBC, CNN were breaking their coverage to give details.
As we would reach the Bar Association premises, the gates would open, the chief justice and I and other lawyers would enter the premises and the gates would close behind us with tens of thousands of people who would just stay outside. And they accepted it, willingly, because we explained to them from day one that the chief justice could not address a public gathering. He could only speak through a judgment or through a Bar Association. There are three duties of a chief justice in Pakistan, one, to deliver judgements; two, to administer the court; and three, to maintain good relations between the bar and the bench. And it was this third function that he was performing. And we kept these people waiting for 10, 12, 15 hours and they as supporters of the cause even accepted being excluded from the functions, so that we kept the politics out of it even though political movements supported us.
The journey of 150 miles to Lahore started at 7am on the 5th of May. We reached Lahore at about 9:30 the next morning to address a Bar Association that we were supposed to address on the 5th at 4 o’clock. We actually addressed it at 10am the next day and people had waited in the lawyers’ convention, had kept awake by making speeches and so on for this 26 hours. They were watching the television screens and at 4pm knew that we were still a hundred miles away but they kept sitting, playing songs, making speeches, dancing, and they stayed there.
We had one additional problem. The government knew that this was going to be a long journey as we had already done a hundred miles to Peshawar in 15 hours because of the popular outpouring onto the motorway. So the government persuaded the Supreme Court, which was Musharraf’s at that point of time, to direct the chief justice to take a flight to Lahore and the government would charter a plane with an additional 40 seats for people like me to travel with him. The chief justice was very upset and I said, “Just give me 15 minutes and we’ll find out how to get around it.” It was going to be a crucial turning point and we knew if the crowds came we could win. So, Lahore has three big towns on the way. None of them has an airport but each has a Bar Association. I rang up the president of each Bar Association and said, “Please immediately fax me an invitation for the chief justice to address the Bar Association.” Within 15 minutes I had the three invitations and I brought them to the registrar of the Supreme Court and explained that, “There are no airfields in these places, so the chief justice has no option but to drive.”
All these were weekend journeys. We’d start on Saturday and return on Sunday to prepare the arguments and I’d be standing on my feet every Monday to defend the chief justice before the Supreme Court.
These were also hot summer days. We were drinking water by the gallons but it never passed through the kidneys because we perspired it all. We always travelled in black ties, black jackets: the regulation uniform even under the summer tropical sun. I would stretch out my hand to shake with people, but the chief justice’s window never came down once, not for a moment. My jacket dripped with perspiration.
There was violence and there were death threats. The lawyers’ leadership was at all times subject to the brute force of the state and terrorist actions performed by the state that it would attribute to terrorists, which in Pakistan is very simple to do. These actions showed the desperation to ward off the lawyers’ movement and remove the chief justice. On the same day as the chief justice was manhandled, the leading channel that showed most of what had happened was attacked by the police and fired at; people were held hostage. On the 7th of May there was firing at the house of Muneer Malik [then president of the Supreme Court Bar Association], one of the leaders of the movement. About 23 lawyers were very seriously burned when as they were carrying torches on the road at night the police sprayed them with kerosene. On May 12 the chief justice and myself were going to address the Karachi High Court Bar Association and the government’s allies, the MQM [a coalition party], blocked the roads with shipping containers so that we could not leave the airport—we had to fly there as it is too far from Islamabad to return in two days—and there were shootouts all over. There were 50 dead on that day. On the 17th of July a bomb was detonated in a convention which the chief justice was to address in Islamabad. Twenty people died. It was detonated five minutes before the chief justice and I arrived. We were on our way and the crowd was with us when we heard the big explosion about 500 yards away. On the 29th of September the lawyers were again badly beaten and stoned by the police.
Senior military officers directly warned me many times, on behalf of the president, that if I didn’t stop driving the chief justice or arguing the case then something very bad could happen. I got through this time having told my wife and children where to bury me and not to keep me on a life support system for more than two days. I think what gave us strength was the large, enthusiastic crowds that we could pull. They gave a huge kick, so that even seeing a bullet coming one would put one’s head in front of it rather than pull away.
We later created a fund and entrusted it to retired judges who were not working directly with us, for distribution to the victims and families of victims of the violence, and we hope to generate more funds for this purpose.
On November 3rd, 60 judges—again including the chief justice—were arrested, and an emergency was imposed. The chief justice was detained with his children inside his house, inside the building, by orders of General Musharraf. All doors were locked except the kitchen door where the supplies would come, and there were four policemen posted outside that door. Thousands of lawyers were also arrested. I was one of them. Many were released from time to time. I was kept in detention for as long as the chief justice was detained.
The lawyers’ movement was a democratic movement. We hold elections in different Bar Associations usually around January or February and despite the detentions and brutality, all Bar Associations elected their leaderships and voted for the leaders of the movement. That meant that the movement could be maintained. The collective leadership was very important. It was not the work of a single individual. All these lawyers had the highest integrity and willingness to sacrifice with unwavering commitment to the cause. The decision-making also was collective. We made decisions through the All Pakistan Lawyers Conference, with representatives of all Bar Associations involved.
Except for the long marches, one in June 2008, the other in February and March 2009, we did not call for funds. For those, we needed funds for busses and transport, which were distributed among local Bar Associations. Rich and poor contributed, and we kept full accounts with proper receipts. What remained we put in a fund, and some of the money was returned. The rest of the movement was spread out all over the country. The Thursday rallies went ahead in every district by themselves. The conventions that the chief justice addressed were locally financed: sometimes the Bar Associations themselves paid, sometimes, local contributors. There was no central funding.
It was not easy for lawyers to strike. From November 3rd until the 13th of January there was a complete boycott of the courts. But then we decided that we would lose the support of the general public, and public sympathy, if we continued the complete boycott, although it was very effective. So then we decided that we would strike on one day in the week, Thursday. Other days, we would go to court. I was one of the few who decided not to go to court and I myself didn’t appear in a single court for the two years of the movement, because I refused to recognize the pretender chief justice.
In 1980 and 81 I spent time in jail under an earlier military government for being vigorous in a lawyers’ movement, starting on the 20th of June 1980 and lasting until 1983. While the leadership was kept in jail it petered out because we did not connect with the people. We had learned our lesson then. This time, we had decided to consciously make the people’s dreams our objectives, and to spell these out in simple terms. And people reacted. The chief justice couldn’t say anything directly, because he spoke only to the Bar Associations on purely constitutional issues. But in my speeches I pointed out how an independent judiciary is essential to foreign investment and how this is linked to improvements in other areas, to building of schools. We linked our demands to the problems and desires of the people. We translated our problem into a problem of the people themselves.
So the lawyers made a truly plural and national alliance. When I say plural, we were from all different political and religious persuasions. It was not easy to do that. You can’t imagine sitting in a meeting of 300 lawyers’ representatives and the first thing is that someone stands up and says, “Why is so-and-so sitting next to you, sir? What right does he have to sit there?” It was very painful, but it gave me great hope and confidence in Pakistan that we came through it. But when some types objected to others, I went for them. I said, “What kind of Pakistan do you have in mind? I’ll not take it, I’ll walk out!” Every second step we had something like this, because we were virtually a political movement but we were keeping it insulated lest the chief justice become politicized: an apolitical movement that was political, and a political movement that was apolitical, and diverse and plural, and with no pecking order. Everybody had their leaders outside the movement and was taking orders from outside as well as from within and at times they were conflicting orders, and yet we kept it going, even into baton-charges, when there was every reason to opt out of the movement. When a wall of policemen is standing in front of you, the choice is clear-cut.
Also, the lawyers’ leaders themselves took all the risks that they expected of their followers. The young lawyers especially were inspired and inspiring and without their motivation it might not have been possible to win the day. They never retreated and stood firm every time to accept any challenge from the authorities. There was also widespread and strong support from civil society. The media played a very important role. Lawyers’ groups and human rights’ groups around the world also sustained and supported us enormously. Today there are these players who are ready to move for social change if they recognize the cause and if there is a core leadership to take things forward.
Posted on 2009-06-23
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