Judiciary’s finest hour
By Khalid Jawed KhanSatureday,July 28,2007
WHEN the US supreme court gave its verdict on the free speech case of The New York Times v Sullivan in 1964, Professor Alexander Meiklejohn observed that it was a day to rejoice by “dancing in the streets.”
July 20, 2007, was the day when the people of Pakistan could dance on the streets too. It was the day when the Supreme Court of Pakistan finally assumed its role as the custodian of the Constitution and redeemed the constitutional pledge of an independent judiciary.
Such epochal moments occur rarely in the lives of nations. Those who are present at such transforming moments are fortunate, those who are part of it are blessed. It was a shining moment after a long period of darkness. A day posterity will cherish and look back on with honour and pride.
The immediate effect of the judgment of the Supreme Court will be limited to the issue which was raised before the court i.e. the dismissal of the presidential reference and the complete restoration of Chief Justice Iftikhar Chaudhry to his office. Besides this, the judgment may have no immediate consequences. Not much will change momentarily.
Traffic will continue to flow haphazardly on our broken roads, power shutdowns will continue unabated, water taps will remain dry, corruption in government departments and police harassment of the poor and unconnected will not cease, poverty will continue to take its toll on the majority of the populace, patients will continue to languish in government hospitals, and trains and flights will still run late. Life will go on as usual.
Yet something fundamental has changed for ever. Something happened which not only has never happened before but that was unlikely to happen in this country. Our judiciary had been providing support to dictators of all stripes. It was part of the establishment. It was not a people’s court. An independent judiciary was an aspiration.
And then it all changed most dramatically with a single gesture of defiance by a lone courageous judge who had travelled the same old path. He had taken oath under the PCO. He had sanctioned military rule. He was part of the establishment. But at the crucial moment, he rose to the occasion and with a single stroke, threw away the shackles of the past.
Overnight, he came to personify the national conscience and defiance to the dictatorship. He took the first step alone. The legal fraternity followed and then the people joined in. Today, the entire Supreme Court stands behind him. A drop evolved into a stream and the stream into a torrent.
In the past, the Supreme Court termed dictators as usurpers but long after they were gone. For the first time in our history, the judiciary has confronted a powerful dictator in uniform and called his bluff. The message from the Supreme Court is unmistakably loud and clear. Gone are days when dictators took the judiciary for granted and extracted legitimacy for their usurpation of power.
With its order, the Supreme Court has not only removed the restraints against the Chief Justice of Pakistan, it has finally restored the rule of law. The message is very clear. It is the law and the Constitution and not the individual, however, high, mighty or well-armed he may be, that will prevail. An independent judiciary is no longer a constitutional commitment or a dream, it is a self-evident reality.
The judgment of the Supreme Court and the restoration of the Chief Justice of Pakistan not only rang the death knell for the presidential reference against the Chief Justice, it has also poured cold water on the schemes hatched by General Musharraf to get himself re-elected in uniform from the present assemblies in their dying moments. Now at last General Musharraf will have to think about retirement long after the date on which he should have retired.Others with Bonapartist ambitions can forget about legitimacy from the Supreme Court.
The doctrine of necessity has finally been buried. The age of martial laws is over. The government can no longer sell national assets for peanuts. The intelligence agencies cannot pick up people and remain silent about their whereabouts. They will have to come clean. The Chief Election Commissioner can now proceed to hold free and fair elections, secure in the knowledge that an independent judiciary stands guard over his constitutional mandate.
The judgment heralding the independence of the judiciary will not only restore the constitutional balance amongst different institutions of the state, it will act as a bulwark against injustice for ordinary citizens. It is for this reason that ordinary people have a feeling that they are no longer voiceless and powerless. They know that their cries of distress will not go unheard.
Now in the remotest of villages if a girl is raped or a poor villager displaced, they would know on whose door to knock. The perpetrator, however powerful or well-connected he may be, will be summoned and called to account for his misdeeds. That is what a people’s court is all about.
This is a defining moment for the nation but like all defining moments it carries promises as well as dangers. It carries the promise that an independent judiciary will maintain a constitutional balance amongst the different organs and institutions of the state and also provide relief to the poor and downtrodden. It will hold the government to account and compel it to act according to the law and fulfil its obligations vis-ŕ-vis the people. It will no longer sustain the usurpation of power and will rein in the intelligence agencies.
It is a moment of triumph and victory for the judiciary and the people. But it is still early. The day has still to come. It is fragile like a drop of dew. It requires vigilance and care. It is the beginning of a long and arduous journey which is full of pitfalls. Nothing is more intoxicating than absolute victory. But each victory carries in itself the seeds of destruction. Thus, prudence, caution, restraint and magnanimity are required to confer longevity on the new order about to dawn.
While the legal community and people must rejoice at this time of triumph, this moment should be captured in its essence so it lasts, lest it is lost for ever in euphoria. It should not be treated as a defeat for anyone. We need to take all the institutions of the state along.
This includes the most powerful institution of the state i.e. the army. The judgment is not and should not be treated as a defeat for anyone, least of all the army which is a national institution. It, too, needs to evolve into a people’s army, one that is not hitched to personal ambitions and to the fortunes of one man.
The army must reflect the aspirations of the people and serve them. Its strength lies not in defiance but in subordination to the Constitution and a genuinely elected civilian leadership. It must protect the borders and fight the enemy, not the citizens. It must act as a professional army serving the nation and not running it or its own business empire.
The intelligence agencies must remain vigilant and active but against the country’s enemies and should not snoop in the affairs of its judges, lawyers, politicians and citizens. The agencies have no business to interfere in politics and manipulate elections. It destroys their morale and professionalism.
All this is possible without revolt, bloodshed and violence and through a peaceful process. We don’t need a civil war to achieve it. This is evident from the judgment of the Supreme Court.
http://www.dawn.com/2007/07/28/op.htm#2