Source: The News International

CLICK HERE TO READ PART I

CLICK HERE TO READ PART II 

Part III
Op-Ed by Dr Tariq Hassan
Saturday, February 02, 2008

So how should this problem be approached? In a scenario as seemingly bleak as this, the players have no choice but to change the rules of the game. It is incumbent upon the legal community to step forward at this juncture and provide the intellectual fodder. It is further incumbent upon it to assess its strengths and to fall back on its creativity and ingenuity for improving its bargaining position with the powers-that-be.

The single biggest strength of the legal community is the legitimacy of its demand for the restoration of the judges, which is couched in a pure legal interpretation of the constitution. The legitimacy may have been damaged by Justice Irshad Hasan Khan’s judgment in the Zafar Ali Shah case and Justice Shaikh Riaz Ahmed’s judgment in the case of the Supreme Court Bar Association of Pakistan v. Federation of Pakistan (PLD 2003 Supreme Court 82) but it has not been destroyed. In both these cases, the Supreme Court had condoned the military takeover by General Musharraf by adopting the skewed logic of “political realism”. It had justified the oath under the PCO on the ground that it was necessary to protect the state and to continue to provide justice to its citizens. It had, in fact, gone to the extent of stating that it had saved the independence of the judiciary as well as the system of administration of justice by taking an oath under the PCO!

The Supreme Court has merely employed the rhetoric of the independence of judiciary. In tampering with the security of tenure of the judiciary and in casually ousting judges whose decisions General Musharraf has reason to fear, he has fundamentally undermined the independence of the judiciary. By adopting and advocating political realism, the Irshad Hasan Khan and Shaikh Riaz Ahmed courts have destroyed the legal foundations of civil society in Pakistan. The constitution has now been so abused and the jurisprudence in this area has become so tainted with political expediency that it can now be set aside, altered and revived with the bare minimum of legal cover. This tendency of judicial adherence to political realism needs to be rejected and recourse needs to be made to legal purism to re-establish constitutional supremacy, rule of law and genuine democratic governance in the country.

The other strength of the legal community is the availability and support of the ousted judges. As has been stated earlier, these judges have not been legally removed; only physically restrained from attending to their duties. If they were to appear in public even once, as Justice Rana Bhagwandas did to address the Karachi Bar Association, the lawyers and the supplicants would welcome their continued services. It is, in fact, the duty of these judges to be available to the public and to perform their constitutional role. This is not a call for anarchy or subversion of the constitution. It is a call to recognize that the recent amendments to the constitution are an aberration and to denounce them by all means available.

In addition to the continued boycott of the courts, the legal community may consider interim measures of providing relief to its clients. In this context, the legal community may consider the formation of “civilian courts” as has been advocated by me in an earlier article (The Lawyers’ continued struggle for democracy, 10 January 2008). This proposal aims at providing relief to the public, business to lawyers and an opportunity to legitimate judges to perform their duties in accordance with the constitution.

The legal community and the civil society must also address the needs of the lawyers hit hardest by the continuing boycott. In the immediate aftermath of the declaration of emergency, the legal community had stepped forward to form a trust to help lawyers who had been arrested or who found themselves out of work. This trust must be immediately revived and reinforced with the objective of providing sustenance to those who have been hit hardest by the continued boycott.

By adopting these or similar measures, the legal community with the continued support of the civil society and the political parties, will succeed in improving its bargaining position. Once the government — whether it comes in the form of General Musharraf, the caretaker government or the next elected government — realizes the extent of the tenacity and resourcefulness of the lawyers it will be forced to negotiate with it. The tables would then have turned because the government will be the one seeking the negotiation not the lawyers. It will then be for the legal community to determine the terms on which this negotiation may take place and with whom it may take place.

Achieving this objective may only be possible with patience and infinite courage. The legal community and the civil society must be prepared to draw on their reserves if they are truly to serve the interests of the public and to uphold the rule of law in the country. The battle for the restoration of the rightful Chief Justice of Pakistan last year was fought in the court. The weapons were the constitution and erudite legal argument. In this round, the legal community does not have the option to appear before the courts because it does not recognize their legitimacy and does not submit to their jurisdiction. Most importantly, it is even more certain than ever before, that the opinion of the PCO judges will bend to the will of the government. The legal community and the civil society therefore, do not have any option but to fight this battle on the proverbial street and to deploy peaceful yet determined civil disobedience as their weapon.

The struggle however does not end with the restoration of the judges. Once the judges have been restored, the legal community and the civil society must turn its energies to eliminating the doctrine of necessity from Pakistan’s jurisprudence, if it is to prevent future violations of the sanctity of the judiciary and to ensure true democracy in Pakistan. The rightful incumbents of the judiciary, particularly those of the Supreme Court, must then be urged to exercise their inherent jurisdiction and to review all such judgments of the Supreme Court which have in the past validated extra-constitutional deviations. The restored Supreme Court must be urged to declare all measures taken during any direct or indirect military rule to be void subject to the de facto doctrine. Finally, in order to irrevocably bind the future generation of judges, the Supreme Court must be urged to make it mandatory for future judges to adhere to democratic norms by making it part of the judicial code of conduct.

Justice and democracy are the constitutional rights of the citizens of Pakistan, not mere privileges that the powers-that-be can bestow as and when they wish. The Objectives Resolution, which is an integral part of the constitution, recognizes the independence of the judiciary as a necessary pre-condition for justice and therefore for democracy. Unlike the measures taken by the present regime, the struggle of the legal community and the civil society is not for the benefit of any individual or for the protection of vested interests. It is for upholding the highest principles of justice, integrity and the separation of powers on which Pakistan was founded. The objective, therefore, is not merely to restore the ousted judges for the sake of ushering in genuine democracy but also to provide long-term security to the required and necessary independence of the judiciary to sustain such democracy. This leaves no room for compromise with the present unconstitutional regime if this objective is to be effectively achieved.

(Concluded)

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

CLICK HERE TO READ PART I

CLICK HERE TO READ PART II 

 E-mail this article to a friend

Tags: Judges, Lawyers, Musharraf, Supreme Court