Source: The News International

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Part II
Op-Ed by Dr Tariq Hassan

Friday, February 01, 2008

The final option for legal restoration may be through legislative action by the new parliament. With the strong-arm tactics of the present government and the rumors of pre-poll rigging already doing the rounds, the next parliament is likely to be either grievously fractious or as docile as its predecessor. Expecting a unified principled stance from such a parliament is wishful thinking.

The second question we must address is why we think that the restoration of judges is important for democracy. Is an independent judiciary necessary for democracy or is the legal community fighting a battle for its bruised ego? For the answer to this question we can examine democratic norms anywhere in the world. It is an established principle of any democratic dispensation, whether practiced as far away as in the United States or as close to home as in India, that three organs of state, the executive, the legislature and the judiciary must work independently of each other and in fact exercise checks and balances on the abuse of power by each other. The constitution of Pakistan recognizes and codifies the principle of the separation and trichotomy of powers and the Objectives Resolution, which is an integral part of the constitution, underscores the importance of an independent judiciary as a pillar of democracy.

The Supreme Court of Pakistan has itself on more than one occasion elaborated the importance of the independence of the judiciary to a democracy. Interestingly, Justice Irshad Hasan Khan’s controversial judgment in the Zafar Ali Shah case (2000 SCMR 1132) highlighted the importance of an independent judiciary while in the same breath justifying the military takeover and the judges’ oath of office pursuant to the Provisional Constitutional Order of 1999. It states: “Stability in the system, success of the Government, democracy, good governance, economic stability, prosperity of the people, tranquility, peace and maintenance of law and order depend to a considerable degree on the interpretation of Constitution and legislative instruments by the Superior Courts. It is, therefore, of utmost importance that the Judiciary is independent and no restraints are placed on its performance and operation…the Superior Courts….shall continue to exercise powers and functions within the domain of their jurisdiction….to ensure that all persons are able to live securely under the rule of law; to promote, within the proper limits of judicial functions, the observance and the attainment of human and Fundamental Rights; and to administer justice impartially among persons and between the persons and the State, which is a sine qua non for the maintenance of independence of Judiciary and encouragement of public confidence in the judicial system.”

An independent judiciary is not only a pillar of democracy, but is also a pre-condition for the existence of democracy. The election process has to be umpired by an independent judiciary. In the absence of an independent judiciary, candidates do not have effective recourse to the courts or any hope of a just remedy. In the present scenario, if candidates were to challenge the decisions of the Election Commission they would be required to submit to the present judges who have been handpicked by the president especially for their loyalty. If the elections do take place and there are allegations of rigging, the aggrieved parties do not have any recourse other than to these courts. The only result that can be expected from them is a validation of the acts of the government as has already been done in the past. Without an independent judiciary, elections can take place in name but they cannot ensure democracy.

It is fundamental for a judiciary to be an independent organ at par with the executive and legislature, wherein the judges have security of tenure. A judge who is concerned about losing his job cannot be expected to, and indeed will not, exercise independent judgment. He or she will make an effort to understand the will of the executive and to enforce it. The recent removal of judges has dealt a serious blow to the security of tenure of judges. Not only has the executive punished these judges for their independence but it has also sent out a clear message to all future judges that they must fall in line with the executive. If these judges are not restored, this harsh lesson will become a judicial precedent and will root out all future hope of an independent judiciary.

The question as to when we want the judges to be restored is already answered in the preceding discussion. If an independent judiciary is a pre-condition to democracy in Pakistan, which the government assures us that it will establish, then the judges must be restored immediately and certainly before the election. However, this does not mean that if restoration does not take place now, the struggle should be abandoned. The restoration after elections would not ensure the fairness of this election but would give the restored judiciary an opportunity to set aside the precedents accepting the perennial practice of constitutional and judicial abuse by dictators.

For “when” to become a reality, it is important that political parties appreciate the subtleties of the problem and take a unified stance. Any divergence in their views at this time will only strengthen the hand of the government. Although individual persons may benefit in the short run by bargaining with the government on this issue, the political parties as a whole will be worse off. Not only will they have no recourse to an independent judiciary in the aftermath of what are certainly to be rigged elections but they would also be mere tools in the hands of the government in any future instances that may require judicial intervention.

The question as to who we are asking to restore the judges is important to assess the ability and willingness of that person to do the needful. The demand is manifestly directed towards General Musharraf — the puppeteer who has stage-managed this whole show. As an architect of the emergency, he appears so far to have emerged as the winner in his second coup as well. He had already enjoyed the backing of the army and the control of the executive. The legislature too was filled with his men. In the aftermath of the emergency, he has also acquired control of the judiciary that has taken an oath to protect his actions. With all organs of state firmly under his control, why would and how could he be persuaded to reverse his orders? On the other hand, should the legal community be negotiating with General Musharraf at all since he is solely responsible for the ouster and incarceration of the judges? Would this not pose a moral dilemma of negotiating with a hostage-taker — with the incarcerated judges as hostages and General Musharraf as the hostage-taker?

Should General Musharraf be ignored and an appeal made to his caretaker government? This may have been an option had the caretaker government been neutral. However, this is not the case. The government, like the judiciary, has been handpicked for its like-mindedness with the regime and cannot be expected to take any independent stand –principled or otherwise. The judiciary has already been dismissed as an option. Not only because it will not and indeed cannot provide independent decisions but also because the legal community does not recognize its legality and by and large does not submit to its jurisdiction. Should the matter be deferred until the next parliament? As has been stated earlier, in the present set up the next parliament is expected to be as docile as its predecessor and even if not docile is likely to have sufficient issues of survival to concern itself with the issue of the judiciary.

(To be continued)

The writer, a lawyer based in Islamabad, was the former chairman of the Securities and Exchange Commission of Pakistan.

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Tags: Judges, Lawyers, Musharraf, Supreme Court