To fight or to flee

All living creatures, including human beings, have to make a choice when confronted: fight or flight.  Introduced by the physiologist Walter Bradford Cannon, it means that when confronted with a situation that evokes fear, pain, anger or anxiety and a person must choose a fight-or-flight response. This thought came to my mind a few days ago during and after the hearing of the case of Justice Qazi Faez Isa before a ten-member bench of the Supreme Court of Pakistan. This must be a rare occasion where a sitting judge of the Supreme Court argued his own case before his colleagues. This is called courage. William M. Kunstler writes in his book “The Case For Courage,” the “lawyers, despite their addiction to conflict, share in common with the rest of mankind a natural resistance to involving themselves in situations fraught with grave consequences to their pocketbooks, their reputations and their peace of mind.” What do you do when the fight is thrust upon you?

Of course then you fight. That is what Justice Qazi Faez Isa did. Some might argue what is so great about it? If the fight is thrust upon you then it is natural to fight, even to throw the first punch. I beg to differ. Without taking into account the long history of mankind and just focusing on the events in Pakistan since 2000, we find some shining examples of courage and some foxy, even Machiavellian examples of cowardice. Our former three-time Prime Minister Nawaz Sharif stands out when we look at cases of flight. After the army coup in 1999, believing in the age old saying that running away makes sure you live and fight another day, Nawaz Sharif chose in 2000 to leave Pakistan upon an undertaking and following a Presidential pardon. However, Nawaz Sharif claimed during all those years that he was forced to leave the country. To prove this he approached the Supreme Court, which in it’s October 17, 2007 verdict stated “The former Prime Minister’s release from prison and his journey to Saudi Arabia after getting a Presidential pardon due to an undertaking could not be described as forced exile.” The same decision, however, allowed Nawaz Sharif to return to Pakistan under Article 15 of the Constitution. This gave him an opportunity to fight another day.

The first shining example of courage is that of a judge of the Supreme Court. Former Chief Justice Iftikhar Muhammad Chaudhry, showing exemplary courage and resolve to fight, refused to resign when forced by the powers that were running the country in 2007. President Pervez Musharraf along with two or three other three-star generals (all in full army uniform) and perhaps Prime Minister Shaukat Aziz, also present in the room had called over the 20^th Chief Justice of the Supreme Court to the Army House. The purpose of the meeting was to read a list of charges and ask Chief Justice Iftikhar Muhammad Chaudhry to resign. This show of power did not impress the Chief Justice and he walked out of the meeting without resigning with his head high. President Musharraf made the Chief Justice non-functional for refusing to resign. The lawyers all over the country then rose in his support and that of the independence of judiciary. The lawyers’ movement turned into a mass movement and after some two years the Chief Justice resumed his office. Chief Justice could have easily gone in exile, chosen another high office, or come to a deal with the establishment. Over all such options, he chose to stay and fight. What a contrast to the former three-time prime minister whose party and election symbol is a lion. The lions of the world must have protested at this injustice to their courage and bravery.

William M. Kunstler writes in his book “The Case For Courage,” the “lawyers, despite their addiction to conflict, share in common with the rest of mankind a natural resistance to involving themselves in situations fraught with grave consequences to their pocketbooks, their reputations and their peace of mind.” What do you do when the fight is thrust upon you?

The next case of flight, closely resembling to that of the former three-time prime minister, that must be mentioned is of the former President Pervez Musharraf.  Musharraf, a self-styled Otto Skorzeny, was the first dictator facing death penalty in a treason case for imposing emergency in November 2007. This emergency led to the suspension of the Constitution, and detention of the judges of the superior courts. In 2009, he went into self-exile for a period of four years until he returned in March 2013 to contest election. After he was disqualified to contest election, he desperately wanted to leave the country on medical grounds and to look after his ailing mother in Dubai. However his name was on Exit Control List and could not leave the country. In early June 2014, the Sindh High Court ordered removal of Musharraf’s name from the exit control list so he could go abroad and also gave two weeks time to the Federal government to file an appeal against its decision. The government approached the Supreme Court, which struck down the order of Sindh High Court in late June 2014. However, citing medical treatment and vowing to return to the country, in March 2016 Musharraf again went into self-exile and now lives in Dubai.

Nawaz Sharif, not used to living in prisons, this time after he was disqualified and jailed by the Supreme Court, he put up a great farce with the help of his party and seemingly that of the PTI’s doctors and some ministers. Fleeing, it appears comes naturally to him. Through the rigmarole of medical checkups, laboratory testing and political game-playing he again managed to flee. Now he lives in London and has been declared an absconder by the courts. Like Musharraf, he does not plan to return to Pakistan anytime soon. He lives to fight another day, again.

In this backdrop of flight, it was pleasant to see a fight taken to Justice Qazi Faez Isa, earlier by the government, and now by the Supreme Court itself, being actually fought. This fight was won by Justice Isa through his review petition challenging the directions given by the full bench of the Supreme Court to FBR to probe his family. Justice Isa could have fled too like Musharraf and Nawaz Sharif by compromising or becoming sick. Instead he chose to stay and fight like Iftikhar Chaudhry. During the course of the proceedings in which Justice Isa argued his case, it became clear that the other side was represented by lawyers who were either ill prepared or lacked the basic understanding of the law, sometimes even narrating the wrong judgement. This is exactly what happens when you do not have a case. You prolong your arguments in the hope that something might just come out of it. In this case that something was retirement of one of the judges on the full bench. Like always one party wanted to make haste while the other party was on a go-slow approach.

We cannot even imagine the burden that was on Justice Isa’s shoulders and heart. James Baldwin in Go Tell It On The Mountain says “This burden was heavier than the heaviest mountain and he carried it in his heart.”