Independence of Judiciary
GENERAL (RETD) MIRZA ASLAM BEG
Sunday, June 17, 2007
Pakistan emerged as a dynamic force against all impediments that stood its way, as a testimony to the fact that Peoples' will cannot be subdued. The achievement, however, has to be sustained and jealously guarded so that the 'vision' was not lost sight of, but unfortunately the institutions that serve as shock absorbers, and lend anchor to the nation were weakened, even disgraced at the alter of expediency.
Strategic long-term objectives were sacrificed for short-term gains. Judiciary, a constitutional imperative to protect the rights of citizens, fell a victim to the infamous 'Law of Necessity'. The status quo was thus maintained in favour of the power brokers, for almost half a century and was ordained to remain so even beyond the elections 2007, but a man of conscience stood up to defy and break the status quo. He gave the message that the bruised judiciary shall be revitalised to gain its robustness, which was to be its ultimate destiny.
Pakistan was not condemned to remain perpetually under a state of stagnation. Forces, though seemingly imperceptible, steered public consciousness for dignity of law. Chief Justice Iftikhar Mohammed Chaudhry was confronted with a choice to 'resign' or face the consequences of reference against him. Had he been guilty from inside, he would not have mustered the courage to say 'No' to the demand to resign. It was the courage of one single person, bearing symbiotic relationship with the hopes and aspirations of the people of Pakistan, that caused spontaneous upsurge of the non-electoral lawyers' community, in support of the decision of their Chief Justice, irrespective of their loyalty to different political parties.
It was a simmering passion, which found expression in the defiance of the Chief Justice, and the lawyers vicariously inhaled power of their profession. It also found back-up support from other segments of the society as well, despite the crude attempt by the government to obstruct the expression of popular support. In fact, the movement led by the Bar and the Bench can be termed as the Consolidation Phase of the battle for Pakistan, won by Quaid-e-Azam, with the help of his legal fraternity and the Muslims of the subcontinent.
In fact the lawyers should have come forward much earlier to accomplish this task, yet waiting for 60 long years to intervene, is not a very long period of time in the life of the nation.
Expressing the burden of responsibility, Justice Khalilur Rahman Ramday, very aptly remarked: "It is not the trial of the Chief Justice, but each one of us is on trial," meaning thereby that the judgment of the apex court must lay down the essentials for the preservation of the supremacy of the constitution, and the independence of the judiciary. The judgment would, thus deny the advantage of the "law of necessity", to the power brokers - Military, the Judiciary and the colluding politicians - who brought about regime changes in the past and held power, in one form or other and debased the very institution of democracy. How would the regime change take place now, particularly through the elections 2007, would be determined by the court judgment. The court may also lay down the principles for setting up the interim government for holding the general elections and the rules of business. There are several anomalies in the existing system of elections, such as over twenty million fake identity cards were used to win the 2002 elections for the PML (Q) - and many such weaknesses, which need to be addressed.
The movement for the independence of the judiciary has established the emergence of the two power bases. One is the "Bench and the Bar", which has acted as the catalyst for this independence of the judiciary. Irrespective of its political affiliations, it has demonstrated unity of thought and action, as the quintessential element of 'their loyalty to the state by supporting the system of justice'. How this 'power base' would be accommodated in the emerging political set-up, is the cardinal question. In fact, this power base would provide the core value for the emergence of the democratic order. Ignoring this 'core' may prove disastrous, as in the past, the main political party - Pakistan Muslim League - which provided the platform for the Pakistan movement, lost its strength and vitality, on the alter of expediency and self-interests of the politicians, bureaucrats and power seekers, and plunged the state of Pakistan into turmoil, resulting into serious consequences of national integrity, political system and social justice.
The second power base, is the media, which energised the movement, and unnerved the powers to be, who tried to suppress it by force but failed. The media has come to establish itself as a powerful instrument of change. It could not be tamed, through the charm of 'plots and permits.' When the call came it responded with a sense of commitment, and loyalty to the state by supporting the system of justice. Definitely it has a role destined for it in the future set-up of the government, which cannot be ignored. Together with the Bar and the Bench, it could provide the core value for the emergence of a robust democratic order.
The political parties of Pakistan, have failed to respond to the demands of the movement, because they could not fathom the new realities and the changed texture of mainstream politics that have emerged and the new power equation which will determine the future shape of the emerging democratic order. In fact the political parties still believe in the old status quo power sharing and reject the reality of independence of judiciary.
For example the present regime, holds the second reference ready, to be used against the Chief Justice, if the first reference fails. But at the same time, the reality of the independence of the judiciary seems to have dawned on the President, as admitted by him: "The matter is extremely sensitive and only the Supreme Court is the deciding authority. Decision of the court will be binding on everyone." The Pakistan Peoples Party, in the past, subordinated the judiciary for its political purposes. Chief Justice Sajjad Ali Shah became the victim of such designs. Benazir Bhutto is still running around to strike the deal, not realising that all political options would flow from the impending Supreme Court judgment. The Pakistan Muslim League assaulted the Supreme Court, because the court was not prepared to oblige. Nawaz Sharif is determined to hold the APC, whereas, he should wait for the court judgment and not allow the APC to be overtaken by events. How would these political parties reconcile to the changed realities, and accept an independent judiciary, as an essential part of the system, is the moot question. In fact, this transformation from status quo to the independence of judiciary demonstrates the power of the civil society, to bring about the change, by asserting its will.
A quiet revolution is in the making, which augurs well for the country. The judiciary will assume greater responsibility of protecting the sanctity of the constitution and the deprived segments of the society, who shall not be discriminated against and will find equal opportunities for growth and prosperity. The Executive, constituting both civil and military institutions will have defined roles, which they cannot transgress any more. Democracy is not a mere form but substance as well.
The saying of Cicero must not be lost sight of: "We are in bondage to the law and order, that we may be free."
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http://www.nation.com.pk/daily/jun-2007/17/columns1.php