Face To Face With Munir Malik
By Baber Ayaz
14 January,
2008
Asian Human Rights Commission
We are publishing an interview with Munir Malik, the former president
of the Supreme Court Bar Association who was imprisoned and given
drugs under the pretext of painkillers which caused him renal failure
and liver damage, but who continues to be an inspiration for the movement
for the independence of the judiciary and the rule of law in Pakistan.
His insights into the recent events will be helpful in understanding
the movement of lawyers as well as the movement of democracy that
is taking place in Pakistan now. This interview was conducted by Baber
Ayaz on behalf of Asian Human Rights Commission. The Asian Human Rights
Commission authorizes the faithful reproduction of this interview
with due acknowledgements.
Unprecedented movement of the legal fraternity for the independence of judiciary in Pakistan is still a cherished but elusive goal. On 20th July 2007, its victory was celebrated by all democratic forces in the country. But the gains of the movement were short-lived. On 3rd November 2007 President General Pervez Musharraf clamped Emergency on the country and chucked out all the independent judges. The struggle started again and it's a long way to go.
In this back ground I went to interview Munir Malik, the man who launched
the incredible movement in March 2007, in his capacity as President
of Supreme Court Bar Association (SCBA). When I went to interview
Munir, he was still wearing the hospital uniform and looked frail.
Munir had fallen seriously ill during his detention at Attock Jail,
where he was mal-treated by the government doctor. He was only shifted
to Islamabad hospital when his kidneys collapsed and he developed
a liver problem.
For a few weeks that followed civil society feared that the man who
valiantly led a movement that became an example even for the lawyers
of developed democracies, may not be able to survive due to serious
negligence of his health. But the fighter Munir fought and came back.
Following are the excerpts of his interview:
Baber Ayaz (BA): When you got elected to the Supreme Court Bar at
that point the chief justice (CJ) reference issue was not there, you
must be having some agenda for your tenure. What was that?
Munir Malik (MM): Well I had contested the election precisely because
I thought that this would be a defining year. There were a number
of issues that were likely to come up in this defining year, for instance:
Elections were supposed to be held; the issue that whether an army
general can be elected as a president or can he hold two offices of
the president and army chief at the same time, was to be decided;
then there was the issue of the holding of dual nationality by members
of parliament and cabinet ministers and whether they could swear allegiance
to two constitutions. There was the issue of madaris' degrees (Degrees
from fundamentalist Islamic seminaries) whether they were at par with
college graduates, regular college graduates. By that time Malik Qayyum
(the sitting Attorney General) and Sharifuddin Pirzada (legal advisor
to the president) had established their credentials as supporters
of the establishment. They were very close to Chief Justice Iftikhar.
There was a feeling that the Supreme Court (SC) is trying to improve
its moral image or its public image by taking Suo Motto (taking cases
on the court's own initiative) notices of popular issues including
especially the steel mills case where a decision was given against
the government. It was feared that with this image the Supreme Court
will give decisions favouring the government on crucial petitions
like that related to the President's election and prices of pharmaceutical
products.
So I was certain that we need an independent bar to keep a watch on
the SC itself. I was certain in my mind that it would be a defining
year. The very first step was that SCBA passed a resolution demanding
the restoration of the constitution as it was before Musharraf's take
over in 1999.
At that time, by and large the Chief Justice of Pakistan (CJP) was
very unpopular in the rank and file of the legal fraternity for the
principle reason that he was very arrogant and the perception was
that he dispenses justice in cases according to the face value of
the counsel who appeared before him. If it was Sharifuddin Pirzada
he was sugar and honey, and if the counsel was not an important figure
he would be otherwise. I think he was over-zealous in clearing the
back log even at the cost of miscarriage of justice. Lawyers from
Karachi, Quetta, Peshawar and Lahore were given notice in the evening
that your case is fixed in Islamabad tomorrow. This roster problem
was agitating the lawyers. So I was ready to raise this issue with
him as I think justice hurried is justice buried.
BA: But you had condemned the letter written by Naeem Bokhari before
the reference was moved. Why?
MM: When Naeem Bokhari's letter appeared in mid-February It was applauded
in the bar rooms. I took notice of this issue (despite the fact that
other lawyers supported it). Yes, my view was that he should not weaken
the judiciary by making these allegations in the press.
But I was still trying to get my pound of flesh, I wanted to have
the CJP fix the roster problems which was troubling lawyers, and I
would come out vocally in support of him. So he sent me a message
through an intermediary that he was embattled and he wants me to issue
a statement of support. I gave that statement, it was front page news
in Dawn. Publication of this statement on the front page was surprising
for me; I assumed it must have got a push from somewhere.
In one of his speeches in February he had said that Munir Malik has
promised to give me his unconditional support. When my turn came to
speak I said so long as this court moves in the direction of the independence
of the judiciary.
Then came the bolt of 9th March, fortunately I was in Islamabad, it
was a Friday. I was contacted by the press, at about 5:30 pm or so,
they asked my views. The television had broadcast pictures of CJ meeting
at the Army House, where sitting in military uniform the President
asked the CJP to resign. I was very clear in my stand that this is
a direct assault on the third organ of the state and we shall resist
it.
BA: The President has a constitutional right to send a reference against
a judge of the superior court. Was your reaction more because of the
indecent manner in which it was done or was it because the reference
was sent in the first place?
MM: Three grounds, first, the manner in which he was summoned and
detained, at the army camp office. The message it sent was that the
judiciary is really not an independent organ of the state and a uniformed
President can do what he pleases. And by implication the legal fraternity
was also helpless. Second reason was that Pervez Musharraf could not
constitutionally make a judge dysfunctional. An executive order was
issued, by the 'royal secretary' at 5:03pm saying that the CJ had
been suspended and acting CJ was sworn in. This was a complete negation
of the principle of separation of powers. Every judge would have felt
insecure; all you had to do was send a reference. While it would have
subsequently determined whether the reference was of substance or
not, the harm to a judge's reputation would have been done. The third
reason was that the Supreme Judicial Council (SJC) was convened the
same day with unholy haste. One of the judges was flown in via special
plane. The other was tipped off in Lahore. And without hearing the
CJ, the SJC imposed a restrain upon him.
BA: So if the President had followed the constitutional course you
would have had no objection?
MM: He should have sent the reference to the SJC to handle, whenever
they would take it. Then the manner in which CJP was held incommunicado,
together with members of his family. His entire domestic staffs was
replaced by ISI (military intelligence agency) agents, they were in
his living room, in his lawn, 20-25 people. His cars were fork lifted,
no visitors were permitted, only those whom the security gave clearance
to come in, I think Asghar Khan was the first to be permitted.
BA: There was a tremendous response to the call of the SCBA when you
launched the movement for the restoration of CJP. Were you certain
that the people would come out like that or was it also a pleasant
surprise?
MM: There was a wave of indignation in the manner of his dismissal
and everybody I talked to from the legal fraternity said that though
CJ was not a nice man but what has been done with him was not right.
I only channelised this wave of indignation, it was boiling, the Supreme
Court Bar just coordinated it and I think that the master strategy
that everybody gathered around the SC building on every date the CJP
was produced, worked. The administration over-reacted, they sealed
all roads leading to the SC, and I had to walk 2km before I could
get into the SC building.
CJP was supposed to be produced at 1:30 p.m. on 13th March, at 1p.m.
images came on TV showing him being dragged by his hair. This agitated
the lawyers who were practising in Islamabad and Rawalpindi and other
adjoining courts and they started converging on the SC. I had given
a call for the sit in at the SJC but I was not sure where it would
meet because it was supposed to be in camera.
BA: So one of the reasons perhaps that your movement got such a big
response was the contribution of the media?
MM: Absolutely, this was the difference between 2000 and 2007. In
2000 when 6 judges of the SC resigned, they were also detained in
their houses and prevented from coming to the SC building. But at
that time the print media had not given much importance to this and
there was no independent electronic media. I don't think the CJ would
have been re-instated without the media support.
I think one of the other factors was that, even though pre-9th March
the chief was only paying lip-service to the cases of the missing
persons, but those missing persons would continue to picket at the
SC daily. But these issue attracted civil society.
BA: In the second Benazir Bhutto and Nawaz Sharif stint the judiciary
was humiliated by both, but there was no massive movement against
that. Why this time?
MM: Well, historically the judiciary has always been a collaborator,
with the ruling elite. It has been the 'B' team of the army. It retains
the old, imperial mindset that they are there to serve the government.
If the president would call a judge of the high court he would probably
take out his best suit, take a camera with him and it would be an
event for him to remember, that he has been summoned by the president
or the prime minister. In Bhutto's white paper that had been published
after 1977 I think Zulfiqar Ali Bhutto in one of his side notes remarked,
'they will come to you for petty favours' like a plot, for a diplomatic
passport, an admission for a child, a posting for a relative. So they
were only part of the establishment, they had no moral credibility.
If a man in uniform said something that was the law. You could sense
that if there was a case involving the corp. commander or cantonment
land, the judge would think that before the corp. commander says something
to me I should oblige him. So I think both the legal fraternity and
the civil society felt why (they had to) support them.
This time the media brought to our drawing rooms a man saying 'No'
to the establishment. So the image that came out was that this man
has stood up to fight generals, and say that I will not resign I'm
innocent.
BA: You had earlier said that there was a whole scheme of building
up the image of the CJ and the SC and then getting the most crucial
cases like the presidential election through; this means that the
CJ was co-operating. Why did the establishment then decide to remove
him?
MM: I think the CJ was co-operating with the President but not with
the government. The conspiracy against the CJ as he tells me was drawn
out by Prime Minister Shaukat Aziz, General Javed Hamid, the then
Chief Justice of Lahore High Court Iftikhar Hussain and his brother
who was the Cabinet Minister and the Law Secretary Mansoor. The CJ
had stopped his appointment to the Commonwealth. The CJ was not on
speaking terms with Justice Hussain. Shaukat Aziz was really cut up
on the judgement quashing the Steel Mills' privatisation. Then the
CJP would humiliate civilian officers. CJP never summoned the sitting
general but if he summoned the IG police or a secretary, he would
take his gripe to Shaukat Aziz. Pervez Musharraf says that they had
good family relations, so this reference came from the civilian element
of the establishment. Pervez Musharraf was also given the impression
that this man is going to be CJ till 2013 and he's already started
showing his colours. I think Musharraf was misled. What was Shaukat
Aziz doing in the army camp office; he was there on 9th of March.
He was there before the CJ had arrived; special planes had started
since the morning.
BA: After 20th July, when the SC was restored, you said that the next
struggle is to bring independence to lower judiciary and remove corruption.
But then the slogan of removing the president was given. Now one view
is that, it was an ambitious call without consolidating the gains,
the judiciary and the legal fraternity became a bit adventurous and
ended up with 9th November situation. Loves' labour was lost. What
are your views on this view?
MM: Yes, I was very conscious of that, as a matter of fact I'm on
record for having stated if you burden the SC with political cases,
it will collapse under its own weight. Now, the problem was that the
politicians always wanted to fire from the shoulder of the SC, they
wouldn't take the battle to the streets of Pakistan. The CJ cannot
dismiss petitions without hearing them. There were Qazi Hussain Ahmed
and Imran Khan's petitions before the SC challenging the holding of
the dual office by the President.
BA: Is it correct that they had scared Musharraf that he would give
a judgement against him?
MM: You will notice that neither the SCBA nor the Pakistan Bar Council
(PBC) intervened in these proceedings. We had held out, an olive branch,
by saying that the CJ was not a vindictive man, he will not sit on
benches hearing cases against Pervez Musharraf and that counsels who
were his counsels would never appear before him. But there was one
issue, in which we had taken a stand in virtually every public meeting
that was the case of missing persons. Now the CJP was under pressure
to hear these cases. In the aftermath of the movement of 9th March
2007 he had said that it is the responsibility of the state to account
for every missing person. It was not so much that we went after Pervez
Musharraf, but we went to look for the missing persons, that antagonized
Washington DC because they thought that courts would now be throwing
a spanner on the war on terror. Then all the signals that came from
the CJP that is the way he constituted benches on these constitutional
cases was that he would go slow. The 6-3 verdict that came against
Qazi Hussain and Imran Khan Case was certain to go this way. One could
have looked at the bench and said that it would be 6-3 split decision
in favour of Musharraf. In Justice Wajihuddin case against presidential
election, we would have lost that petition, because we didn't have
a majority. The reports that went to Pervez Musharraf, from his intelligence
people were that the SC would decide against him, that's why he imposed
Emergency.
I guess in a sense you are right, that certain political issues for
which the courts were not ready were brought before it, but the momentum
of the events were such that if the courts did not make an attempt
to address them then it would have become the old supreme court and
that was not an idea worth fighting for.
We also have to remember, that although from 9th March to 20th of
July we were able to rally lawyers of different political persuasions
on the largest common denominator, independence of the judiciary,
restoration of the CJ and supremacy of the rule of law. On this no
democrat could disagree but after 20th July, I would say lawyers belonging
to different political parties brought their political agendas forward
and over that we had no control.
CJP attitude was that I have reached the position of the Chief Justice
now I don't care what they do to me. He told me: "I would go
down in history, as the CJ who took a stand, the title is something
that comes and goes, I will remain in history."
BA: Do you think had everybody moved more cautiously 3rd November
onslaught on superior judiciary could have been avoided?
MM: You see, this was a catch-22, if the judiciary did nothing its
public image would have eroded giving an impression that this was
a fight only for the CJ and not for the independence of the judiciary,
not to preserve the institution. Then the judiciary would again have
become weak. So the level of expectation from the masses, the legal
fraternity and the civil society was such that there was no turning
back without eroding your credibility, and once your credibility was
eroded, they would attack again.
In retrospect I think they should have not stayed the notification
of the presidential elections. 50% of the battle had been won with
the re-instatement of the CJ and the president's assurance in the
court that he will take off the uniform before taking oath. The stay
order, perhaps gave the feeling to the President's camp that the next
step of the court will be declaring the elections invalid.
BA: Most of the judges who refused to take oath under emergency Provisional
Constitution Order (PCO) now, had taken the oath in February 2000
although a constitutional government was removed. Why does everybody
support them now?
MM: Well even this CJ had taken an oath under the PCO in February
2000, but I think though judges say that they are not influenced by
the public opinion, the fact is that this is very far from the truth.
They do not sit in ivory towers. One of my favourite lines is from
NY Court of Appeal's Chief Justice Cardozo, he said that "the
great tides and the currents which engulf the rest of men do not in
their course turn aside and pass the judges by." 9th March no
one came to meet the CJ, but when the movement started, it had a domino
effect. As soon as the people started coming on the streets, one fell,
then the other and the other.
What we said was that, the courts say that they interpret the constitution
according to the changing times; it's an organic document, not static.
This is for the first time the people came to the streets and showed
them that these are the changing times. There is an old dictum: "better
late than never."
BA: Do you see any chance of the restoration of these judges and how
it would be constitutionally possible under the current situation?
MM: I think the ball is now in the parliament's court. Historically,
a usurper has sought parliamentary indemnity for the acts done during
the period of deviation. Now we can't go before the present SC and
expect restoration of judges. In fact they've already ruled that the
3rd November PCO amendments are a valid part of the constitution and
they will not require any further parliamentary approval. And they
have shifted the onus on parliament, that to undo it you have to repeal
it by a 2/3 majority.
So this war will now be in the new parliament or in the streets. On
the streets it's supposed to be run by the political leadership.
BA: Does that mean if political parties don't get 2/3 majority they
can't change it?
MM: No sir, let's take this scenario, supposing Pakistan People's
Party (PPP) gets simple majority, forms the government and the speaker
asks to lay the constitution of Pakistan before the house, which one
will they present, one with the amendments, or the one which was before
Musharraf took over ?
BA: Can they do it legally?
MM: Like Illahi Baksh Soomro (former speaker of the national assembly)
did it, when the 2002 Parliament sat, he asked for the 1973 Constitution
for administering the oath. So this is a political leadership game.
BA: The government says that the SC was coming in the way of their
resolve to fight terrorism. Now we all know that the problem of terrorism
is there, it's an extra-ordinary situation, what can be done. The
executive also needs certain powers or certain space to deal with
terrorism. It is a reality, how do you fight it? And how can the judiciary
really contribute to this?
MM: You see the executive ought not to shift the entire onus on the
judiciary. I concede the proposition that citizen rights have to be
balanced against the interest of state security. Now in England, we
have the same problem but their parliament enacted a law.
The question is where do we draw this balance and who draws this balance?
The balance is to be drawn by parliament, and then the executive will
implement this law. Supposing the law is that they can keep a suspect
incommunicado for 7 days. Ok, so they keep me incommunicado for 7
days but on the 8th day I should be produced before a magistrate.
Decision on whether the executive has transgressed the law, is the
judicial function. Now, in England, after 7/7 they have adopted legislations.
We, on the other hand, haven't been able to define terrorism yet.
What is terrorism? What is a terrorist act? The definition we have
is that which is found in the Anti Terrorist Act as something which
is liable to scare the general public. The classic definition of terrorists
is state terrorism, where the state uses its coercive power to repress
its citizens. Assuming that Al-Qaeda is a state within a state and
it has to be dealt with, then the international community must come
up with a framework of rules. Now tell me, supposing they pick you
up on a charge of national security, doesn't your family have a right
to know that they have you in their custody? So the degree of accounting
will be less but accounting will have to be done. The state must account
for persons. When they pick you up on preventive detention it is not
a substantive charge but they say we have picked him up. They don't
present you before a court but at least a person doesn't disappear.
BA: In the post 3rd November situation, gradually the movement is
dying down. How do you see the future of the movement?
MM: Well, we've gone off the front pages for 2 or 3 reasons. Important
events such as return of exile leadership, assassination of Ms. Bhutto
and elections are getting prominent newspaper space. The problem is
that we don't have many legal options; we don't have a court to turn
to. Pre 20th July the struggle was within the courts and without the
courts. Movement outside the courts was to put pressure and sensitize
them.
Now we are re-thinking our strategy. The entire leadership of the
bar was arrested. Aitzaz Ahsan, Tariq Mehmood and Kurd are still under
detention.
BA: Now towards a personal side, when you were arrested, were you
mistreated?
MM: I was not mistreated at Adiala Jail; I only had the inconvenience
of being shifted at 3 a.m. to Attock Jail on the third day. In Attock,
the civilian jail staff bent over backwards to do anything for me,
but it was the intelligence that would lead them. They would be present
at every meeting, at every visitation; they decided when the cell
would open and when it would be closed. They would supervise and torture
me psychologically. Medical treatment facilities were inadequate;
I would get medicines after 3 days. At that time I was on pain killers
and the pain killers they gave me, my doctors from Pakistan Institute
of Medical Sciences (PIMS) and Sindh Institution of Urology and Transplantation
(SIUT) tell me, would have killed a healthy man.
BA: Were you on any medication then?
MM: No, just painkillers. My problem was that they'd shut me in at
4pm and open it back at 7am, the cell only had space to lie on a mattress
and the bathroom was right there too. There was nothing to do, all
reading and writing material, was confiscated, there was no newspaper
and first four days I was in solitary confinement. I would go to the
toilet to urinate every hour on the hour. I went to the jail doctor
and he said have this medicine and when nothing happened after two
days, he changed the medicine.
Eventually my kidneys shut down, and my liver was also not functioning
properly. This resulted in accumulation of fluid in my body. Fortunately,
I was not disoriented mentally. I don't recall the events after the
23rd November afternoon. I can recall that an SSP came and called
Islamabad saying that my health was bad and I should be transferred.
I recall being in an ambulance. I don't think I would have survived
Saturday. Once I recovered partially with the help of PIMS doctors
in Islamabad, I was moved to SIUT in Karachi where I recovered pretty
fast and now I am off dialysis.
The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.
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