Apr 252008

The PPP is doing itself no political favour by dragging its feet on the judiciary question. Clever moves are fine but a time comes to deliver. That moment has arrived. If something has to be done, as Shakespeare said in Macbeth, it is better if it were done quickly. The longer the party delays the inevitable, the more it loses lustre in the public eye. Public opinion polls clearly show that a vast majority wants the real judiciary to be restored.

Granted, that it is not a bread and butter issue, as some people are so keen to point out. But, it goes to the heart of what a great many people want this country to be; a country of laws and rules, not of dictatorial whims. It is also not important how good or bad an individual judge is. We have had our share of both. The real question is if a military chief can be allowed to set aside the constitution and dismiss superior court judges. How we go about answering this question will determine the future of our democracy.

Some may argue that even if we establish the principle that the constitution and rule of law are sacrosanct, will a future adventurer worry about these niceties? Perhaps not, but then creating a sustainable democracy is more than just one positive move. It is a series of steps that end up creating a democratic ethos that adventurers find hard to overcome. Military chiefs in democratic nations may daydream about fame and fortune but are deterred by societal support for rule of law. That has to be our goal.

We as a nation took a huge step forward by unanimously adopting a model democratic constitution in 1973 but then undermined its spirit by creating a dictatorial mode of governance. This made it easy for not one but two dictators to dishonour us with their presence. If we want to prevent more unwelcome visitors in the future, we will have to pay attention to every building block of the edifice of democracy.

It is in this context that restoration of the judiciary is so important. It may not stop future interventions but it will create one more extra measure of deterrence. Democracy is not a one-stop shop. It involves a change in the mindset where all key players, indeed all citizens, internalise essentials of a democratic culture. But, this will not happen if the first vital step of treating the constitution as sacrosanct and establishing rule of law is ignored. That is why the dictatorial actions of November 3 must be reversed.

This does not mean that the judiciary is a holy cow and cannot do with reform. It is the right of the people’s elected representatives, through parliament, to make whatever changes they wish. It is for this reason that no one objects to the proposed constitutional amendment to improve functioning of the judiciary. But, for this reform effort to be credible, it is important that it should not be seen as person-specific or designed to meet personal or political goals.

Perhaps, like every other high office in the country, the chief justice’s position should also have a fixed tenure. This is particularly important in our environment where restraint as an attribute is foreign to our character. Everyone who gets power in this blessed land is tempted and often goes beyond his or her mandate. But, if the issue of the chief justice’s tenure is touched at this point, it will seem Iftikhar Chaudhry specific. This will create problems and lead to trouble. How we overcome this will be the real test of our ingenuity.

One way out could be to diffuse the administrative powers of the chief justice so that this office only becomes the first among equals. The most important of these powers are determination of the cause list, which means deciding which cases will be taken up and before whom, formation of benches at the headquarter and the circuits, appointments and postings of court officials and allocation of residences, cars and other resources to fellow judges.

Instead of one person deciding all this, these powers should be transferred to a committee of three senior most judges. This will reduce the arbitrary authority of the chief justice and make this office more of an honour than anything else. The same formula can be replicated in the provincial high courts. It is possible that not being a lawyer I am missing something important, but the principle remains the same. The extraordinary administrative powers of chief justices should be reduced across the board. This will ensure a measure of restraint in an office that has the potential to go overboard.

It is also important to institutionalise proper judicial accountability. No person or authority should be beyond reproach. The Supreme Judicial Council does exist but we saw last year that it can be misused by both the executive and the judiciary itself. The sight of the judges gathering post-haste in Islamabad last year and giving arbitrary decisions against the chief justice was nauseating. A judicial-reform package must address this issue so that any judge who indulges in conduct unbecoming can be held to account but, without the possibility of a witch hunt.

If these two issues are taken care of, some of the misgivings that the PPP leadership has about individual judges can be overcome. But, there is more to be done. Suo motu powers by which a judge can take up any issue of public importance on his own also need to be restricted. It is an important power and by no means should be discontinued but it cannot be allowed to become a vehicle for pursuing personal agendas. I don’t know what exactly can be done but the bar to taking up issues through this mechanism must remain high.

The same can be said about Article 184 (3) of the constitution by which the Supreme Court can take direct cognizance of human right cases. This is an important power and must remain but we have seen in the past that its interpretation has been stretched to hear any and everything. Again the problem is that there is very little restraint in its exercise. Genuine cases of human-right abuses must be taken up and pursued vigorously but it should not extend to commercial or business matters that are best left to subordinate civil courts.

The issue of the judiciary thus has many dimensions and there is no quibble with the PPP emphasising them but the sequential order must be correct. The real judiciary of this country must be restored without delay and without any exception. Once it has taken office, and this important hurdle has been crossed, other matters pertinent to judicial reform can be given priority. Building a truly democratic nation is an arduous task but it is only possible if the first step is in the right direction.

Courtesy: The News, 25/4/2008

 Posted by at 6:58 am

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