Apr 232008

Once the judges are restored how will the independence of the judiciary be guaranteed; how will checks and balances between the institutions of the state be maintained; will the judiciary continue to be pro-active in politics?The lawyers’ movement has provided the backdrop to the PPP-PMLN reconciliation efforts and has become increasingly politicised in displaying its demands, and has even resorted to violence characterised by stone-pelting and lathi-charges.

The events of April 9, 2008, are evidence of the hotheadedness and impatience of the lawyers, making any confrontation with the newly elected leadership on the judges’ issue a serious roadblock to the shared agenda of democracy and constitutionalism.

Apart from ideological differences and incompatibilities in the nature of the PPP and PMLN, one of the major bones of contention has been the restoration of the deposed judges. Nawaz Sharif has consistently issued statements for an early restoration of the judges, reinforcing the resolve of the lawyers’ movement. Asif Zardari, on the other hand, has reserved judgement on the issue.

The Murree Summit was historic because not only did PPP and PMLN agree to form a coalition government in the Centre, both parties also agreed to reinstate the deposed judges through a National Assembly resolution within 30 days of government formation. People now wait with bated breath to see whether the parties will decide to simply restore the judges or introduce a detailed package of judicial reforms.

Several factors explain why the restoration of the judges has becomes such a make-or-break decision for the new coalition government. Political parties in Pakistan are generally not issue-based but the lawyers’ movement provided a convenient issue to be used during electoral campaigns. More than providing a principle to stand for, the lawyers’ movement has also allowed parties to reinforce their anti-establishment stances.

For example, the PMLN has cleverly used the unconstitutionality of firing the judges as one of the reasons to justify maligning the previous government for endorsing Musharraf. By presenting itself as a strongly anti-establishment party, PMLN has also capitalised on a burgeoning civil society that is urban and belongs to the middle class.

The PPP on the other hand has remained silent on the issue and has increasingly found itself being pushed into a disadvantageous corner, because it is feeling the pressure from civil society to clarify its position. The MQM, which had supported the Musharraf regime, has also faced similar pressure from the civil society. The events of May 12, 2007, certainly did not portray the MQM in a positive light.

The lawyers’ movement that built around Iftikhar Chaudhy’s dismissal as chief justice in March 2007 gained unprecedented momentum. For many it is the manifestation of a civil society that has finally found a voice to express its concerns about the use of extra-constitutional authority.

One of the reasons the lawyers’ movement managed to sustain itself was the meteoric surge in the number of cable news channels covering the protests, strikes and agitation of the lawyers. Since the movement got full-scale, twenty-four-hour coverage, it has been impossible to keep it from becoming politicised.

First, excessive articulation of their demands has prevented the lawyers from exercising the restraint that is enjoined by their status. This has called into question the ability of these individuals to act independently.

Second, the movement has also shown that if the lawyers rally behind the judges, the judiciary has the capacity to challenge the executive and legislature on the street. Hence even a democratic dispensation feels threatened by a ‘pro-active’ judiciary.

Third, another effect of politicisation is that judges who are otherwise meant to be neutral on issues of domestic and foreign policy (unless requiring the interpretation of the Constitution) have voiced strong political views that could have deleterious impacts on the government’s ability to make policy. The movement has with time begun to view itself as the sole guarantor of democracy. This has lent the lawyers the legitimacy to be aggressive and self-righteous in the pursuit of their political goals.

So far all those with a stake in the political system have weighed the pros and cons of restoring the judges, or have analysed how this matter could potentially frustrate the efforts made by the parties to form a coalition.

The important questions that should be asked at this point are: once the judges are restored how will the independence of the judiciary be guaranteed; how will checks and balances between the institutions of the state be maintained; will the judiciary continue to be pro-active in politics?

On principle, there is no doubt in my mind that the deposed judges ought to be restored to correct the constitutional wrong that was committed. The principle of the matter is important, but simply restoring them is not enough. Too much damage has been done already. The problems of judiciary and provision of justice to the people in Pakistan run far deeper.

The issue here is not so much the symbolic reinstatement of the fired judges but more about a commitment to judicial independence and recognising that the judiciary is the sole interpreter of the Constitution. The coalition needs to agree that the judiciary should be allowed to decide if it wants to be maximalist or minimalist in its judicial review.

No parliamentary democracy can survive without the three organs of the state having the ability to check each other’s power. There is a consensus in the Constitution that these checks ought to be, but it is in the actual implementation of the constitution that our political leaders need to once and for all stop arm-twisting the judiciary to pass judgements in their favour. To this end, the process for the induction and appointment of judges needs to be reviewed.

In turn, judges need to remain politically neutral and maintain restraint in voicing political opinions. Hence the policy of employing judges to function as returning officers during an election needs to be reconsidered.

Instead of having a top-down approach to redressing the problems faced by superior courts in Pakistan, it is far more crucial to deal with the corruption, inefficiency and poor performance of lower courts so that people actually have easy access to justice and feel as though their disputes will be resolved fairly.

To sum up, it would useful for both the lawyers and the politicians to take a moment’s pause and evaluate the future of the judiciary in light of how effective the judicial branch of a government ought to be.

Mariam Mufti is currently working on her doctoral dissertation on the party system of Pakistan at the Johns Hopkins University

Source: Daily times, 23/4/2008


 Posted by at 9:41 am

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