My dear colleagues,
Assalam 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-overdue, mammoth battle for civil rights and democracy in our country.
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 Ziaul Haq I was arrested and detained without trial several times for long terms and only because I pursued, even then, the ideals of democracy and an independent judiciary.
Let me assure you that the sacrifices you have given and the selfless courage you have shown for the 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 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 were treated worse than terrorists while 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 a General’s attempt to contest elections for the office of President was completely in breach of his own oath under the Constitution. And what happened? Just because that Bench seemed likely to give a verdict according to the express language of the Constitution, the General sacked the Chief Justice of Pakistan and other judges of the Supreme Court and of the four High Courts. Only judges who were willing to legitimise 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 spirits in the media, the 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 on the backburner 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:
1. The Supreme Court Bar Association, while continuing to deny validity to this election prescribe 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).
2. The contents of the oath will be widely publicised by representatives of the Bar at all levels through press conferences and media reports.
3. 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.
4. The oath alone is not enough. It is the MANNER IN WHICH 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 of the oath will be maintained at the District, Provincial and Central level by the Bar Associations.
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.
5. 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.
6. 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 the 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.
7. Each ceremony will involve a maximum number of lawyers and political workers across the country. We will also thus cause a synchronised 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 created 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 maybe 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 clients are the 160 million Pakistanis. 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.