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Old Sunday, December 19, 2010
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Default Hope for the country - Roedad Khan

Monday, March 15, 2010

Hope for the country

Roedad Khan

No authoritarian or corrupt ruler can afford an independent judiciary. The two cannot coexist and are bound to collide. Without an independent judiciary, the Republic cannot be made to endure. But when government falls into perfidious hands, it becomes itself the instrument of counter-revolution. No wonder, all those who do not believe in the rule of law and all those who represent the forces of darkness and counter-revolution have joined hands once again to reverse the judicial revolution triggered by Chief Justice Iftikhar Chaudhry.

The proposed constitutional mechanism for selection of judges is a thinly disguised attempt to undo the gains of the judicial revolution. Counter-revolution does not give up easily. With the restoration of the deposed judges we thought we had reached the summit and our problems were over. Alas, the ascent of one ridge simply revealed the next daunting challenge. In retrospect, it seems it was naïveté to have imagined that the restoration of judges alone would defeat the corrupt system and criminals and mafiosi who have found in our democracy the perfect Trojan Horse for preserving their power.

In Pakistan, as in all federations, the Supreme Court plays a crucial role. It is the sole and unique tribunal of the nation. The peace, prosperity, and very existence of the federation rest continually in the hands of the Supreme Court judges. Without them, the Constitution would be a dead letter; It is to them that the executive appeals to resist the encroachment of parliament; parliament to defend itself against the assaults of the executive; the federal government to make the provinces obey it; the provinces to rebuff the exaggerated pretensions of the federal government, public interest against private interest, etc. They decide whether you and I shall live or die. An awesome responsibility rests on the shoulders of the Supreme Court. Their power is immense. But they are all-powerful only so long as the people and the government consent to obey the laws.

In every period of political turmoil, men must, therefore, have confidence that the superior judiciary, the guardian of the Constitution, will be fiercely independent and will resist all attempts to subvert the Constitution. It is our misfortune that from the country’s first decade, our judges tried to match their constitutional ideals and legal language to the exigencies of current politics. The superior judiciary has often functioned at the behest of authority and has been used to further the interests of the rulers against the citizens. Their judgments have often supported the government of the day. This was their chosen path through the 1950s and during the martial law period of the 1960s and 1970s. When the history of these benighted times comes to be written, it will be noted that the superior judiciary had failed the country in its hour of greatest need.

On March 20, 1996, the dark clouds on the judicial horizon lifted and the situation changed dramatically. On that fateful day, the Supreme Court, headed by Justice Sajjad Ali Shah, delivered the landmark judgment in the Judges’ Case which made the arbitrary appointment of inexperienced, ill-trained, ill-qualified persons of doubtful integrity and party loyalists to the court almost impossible. We all thought this decision was a major divide in the constitutional jurisprudence of Pakistan and in the decisional philosophy of the Supreme Court. It was hoped that it would fundamentally alter the character of the court’s business, the nature of its decisions, and will help restore public confidence in its independence and objectivity.

Our euphoria did not last long. On Nov 28, 1997, the Supreme Court of Pakistan was attacked by thugs organised and led by the government. Gen Jahangir Karamat, the chief of the army staff, to whom an appeal had been made by the chief justice for protection, stood aside and watched the fun. The attack on the Supreme Court was launched in broad daylight. The Honourable Justices had to flee for life. The same day Chief Justice Sajjad Ali Shah was forced to go on leave and then officially retired on Feb 16, 1998.

In the darkest hour in the history of our country, Fate had found the man who had the character, the will and determination to speak truth to the military dictator. Chief Justice Iftikhar Mohammad Chaudhry appeared on the scene like a deus ex machina and changed the course of history. He broke with past tradition. The nexus between the Generals and the superior judiciary has snapped. Isn’t it ironical that today the people of Pakistan, especially the poor, the disadvantaged and the voiceless, expect justice not from the parliament, not from the presidency, but from an unelected and unaccountable Supreme Court? This has not made the court very popular with the executive.

It follows that Supreme Court judges must not only be good citizens and men of liberal education, sterling character and unimpeachable integrity; they must also understand the spirit of the age. Their appointment is dealt with by Articles 177 and 193 of the Constitution. Article 177 (1) provides: “The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the President after consultation with the Chief Justice.” The question of consultation has been dealt with extensively in the well-known Al-Jihad Trust Case, wherein the Supreme Court held that “consultation in the scheme as envisaged by the Constitution is supposed to be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and Chief Justice of a High Court as to the fitness and suitability of a candidate for Judgeship is entitled to be accepted in the absence of very sound reasons to be recorded in writing by the President/Executive.” This is now the accepted method of selection of Judges. A crude attempt was made to deviate from it but it failed.

Why disturb the status quo? Why circumscribe the discretion of the chief justice? What is wrong with the present method of selection of judges? It has stood the test of time and has the full support of the people. Why involve the law minister, the attorney general and the Bar Council in the selection of judges of the Superior Courts? Why involve parliament and the political parties in the selection of judges? Why politicise the judiciary? Is the proposed method for selection of judges consistent with the principle of separation of powers enshrined in the Constitution? Why not leave the matter to the discretion and good sense of the chief justice, as is the case today? Why reopen the controversy? The reason is not far to seek. Independent judiciary suits nobody in this country. It only suits the people, especially the poor and the exploited. It does not suit the tiny minority which rules this country and is virtually above the law. They want to clip the wings of Chief Justice Iftikhar Chaudhry and take the country back to the bad old days when the superior judiciary functioned at the behest of authority and was used to further the interest of the rulers against the citizens.

Today there is hope for the country.

“The President may slip, without the state suffering, for his duties are limited,” Tocqueville wrote in 1837. “Congress may slip without the Union perishing, for above the Congress there is the electoral body which can change its spirit by changing its members. But if ever the Supreme Court came to be composed of corrupt or rash persons, the Confederation would be threatened by anarchy or civil war”. This is exactly what would happen in this country if the proposed mechanism for the selection of Judges is adopted.

The judicial revolution triggered by Chief Justice Iftikhar Chaudhry is irreversible. Let there be no doubt about it. Any attempt to undo it will be resisted. The people have planted an independent judiciary in the path of our turbulent democracy. No longer would the executive be a law unto itself. Today there are many now willing to spill their blood to defend their heart-earned independent judiciary. Try to destroy the independence of judiciary, and the moment is not far off when this beautiful country will be plunged into a civil war.

The writer is a former federal secretary.Email:
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