Apr 192008

By Shahab Usto


A CANTANKEROUS debate is going on among politicians, analysts, lawyers and ordinary folk as to whether the future of an independent judiciary is contingent upon the restoration of the deposed judges, including the ‘maverick’ chief justice, Mr Iftikhar Chaudhry.

The sceptics, if not the opponents, of the restoration question the judges’ credentials as custodians of the Constitution, given their being sworn in under the PCO and their adherence to an extra-constitutional framework imposed by a military dictator.

They also refer to a long list of incidents featuring the miscarriage of justice at the hands of partisan judges, starting with Zulfikar Ali Bhutto’s ‘judicial murder’, Benazir Bhutto’s persecution, Asif Zardari’s long incarceration and the ‘perfidy’ of Justice Sajjad Ali Shah which led to the dismissal of the last PPP government. Therefore, this time round they say they don’t want to take chances with individuals and would rather bring in institutional reforms to strengthen the judiciary.

It is also pointed out that, except for his conviction in the hijacking case, Nawaz Sharif has, by and large, received political benefits from the judiciary, be it in the form of the restoration of his government by Justice Nasim Hasan Shah, the successful showdown with Justice Sajjad Ali Shah or the recent judgment by the deposed judges in the Nawaz Sharif case allowing him to return to Pakistan in the teeth of opposition by a pro-military government.

The proponents of the judiciary’s restoration, however, attribute much of the current democratic spirit to the judges’ ‘valour’ and ‘leadership’. They also cite the sizable pro-judges’ mandate received particularly by the PML-N from central Punjab, an area which matters a great deal in politics, economy and the recruitment of the army.

Looking at the divergence of views among political parties, one feels jittery about the future of the judiciary and the success of the coalition government in dealing with a plethora of political, economic and constitutional problems which require, inter alia, a robust judiciary to administer justice to the people as well as to the centre and provinces.

True, elections have set the course of democracy. But historically, elections alone have never removed injustice from society. The elected Roman senate treated non-Romans as second-class citizens, the elected Nazi government persecuted the non-conformists, and the tenets of Apartheid and Zionism have also been followed by the ‘elected’ governments.

Nor does constitutional rule ensure fundamental rights, unless of course judicial recourse is available to the citizens. Take the example of the US. The Fourteenth Amendment to the US constitution had long guaranteed ‘equality before law’, but an American student of African origin had to wait until 1954 when the US Supreme Court in Brown v Education Board finally declared ‘racial segregation in school to be unconstitutional’.

And how does a robust judiciary come into being? When the citizens remain vigilant and assert their democratic rights. Behind the supreme court’s decision in Brown v Education Board was a powerful civil rights movement which aimed at ending racial discrimination in the US

However, that does not mean that judges should always look to the gallery before giving important judgments. Their individual courage and fairness are also factors. A lone judge sometimes changes the course of history by giving a seminal judgment.

Sir Edward Coke, the chief justice of the Court of Common Pleas (1606-1616), struck a mortal blow to the jurisprudence of ‘divine right’ by ruling that ‘the common law is supreme law, even when the Crown disagrees’.

As a rule, judges are barred from interfering in the political affairs of governance. In fact, they need the government’s aid to enforce judgments. President Andrew Jackson famously taunted the US chief justice: “John Marshall had made his decision, now let him enforce it.”

However, under extraordinary circumstances, judges do transcend their arbiter/interpreter role and use the constitution as a means of achieving higher political and jurisprudential objectives. When the US was threatened with a civil war, the same John Marshall ‘saw the constitution as an instrument of national unity and federal power’.

Unfortunately, before these judges emerged on the scene Pakistan had never had judges interpreting the constitution for higher objectives. They blindly followed the dictators, notwithstanding recurring martial laws, civil commotions, emergencies and international conflicts.

It was for the first time that the deposed judges led by Chief Justice Iftikhar Chaudhry broke this tradition and dared to look beyond the window. And what they saw outside was by no means business as usual.

They saw protests against the violation of constitutional rights in the name of the war on terror; families petitioning for the recovery of their ‘missing’ relations; lawyers and civil society striving to stop the ‘hasty and improper’ sale of the ‘family silver’; the media unfolding numerous scandals of corruption; common men being reduced to a state of utter helplessness at the hands of inflation, unemployment, violence and crime; and the country at large tightly bound by the shackles of a powerful feudal-industrial-military combine.

It was under these extraordinary circumstances that the judges decided to perform their constitutional duty, namely, render justice to the people wronged by the general-led government. Naturally, their style and utterances caused a flutter in the power corridor. But their actions were well-directed and well-meaning, hence they received universal acclaim.

Seen against this backdrop, it would be wrong to presume that the judges had their political agendas to pursue. In fact, they would have never faced the steel mills or ‘missing’ persons’ cases, had there been a democratic government in power.

And suppose they had followed the tradition of kowtowing to the government like most of their predecessors, where would the hordes of helpless peasants, persecuted minorities, exploited women, victimised politicians and ‘missing’ persons’ families have gone to seek relief?

Who has benefited from their showdown with a powerful general? Obviously, the judiciary, democracy and the incumbent politicians. And who faced the wrath of the establishment? The judges, their families and numerous lawyers/civil society/the media. The rest were either sitting on the fence or operating on the fringes.

Now as a new ‘era’ of constitutional rule is about to set in, it would be a betrayal on the part of the ruling coalition to ignore the sacrifices and plight of the deposed judges. They deserve not only honourable restoration but their due role in the process of judicial reforms.
Let posterity remember them among those who helped the judiciary have its tryst with destiny so that finally an era of justice and fairplay could be ushered in — an era long promised by the founding father, yet eluding many a generation.

Courtesy: Daily Dawn, 19/4/2008

 Posted by at 1:00 pm

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