Huzaima Bukhari and Dr Ikramul Haq
No country can ever think of establishing people’s rule without ensuring a free and independent judiciary. In a true democratic set-up, the electoral process ensures the dominance of the people over those who hold political offices. If electioneering lead to an anti-people rule (as was the case in 2002), it amounts to negation of democracy. Despotism, repression, fascism, racism, chauvinism, totalitarianism, oppression, intolerance, bigotry, tyranny, denial of free access to justice, curbs on media freedom — antonyms of democracy — have no place in a civilised society. Since an effective and independent judiciary alone is capable of checking any authoritarian rule, dispensation of justice is a sine qua non for democracy. In fact, dispensation of justice is the main pillar of democracy.
Democracy as understood in the classical theory and truly practiced in the world embodies some vital elements that are: fair and just electoral process, sovereignty of parliament, separation of powers and independence of judiciary, public accountability and rule of law. Elections alone cannot guarantee these elements. Those at the helm of affairs must realise that democracy is not electioneering per se. At the heart of the concept of democracy is the assurance for the citizens that their affairs are going to be managed by a “Responsible Government.” If we analyse the Pakistani scenario in the light of the above basic principles, there will be disappointment. The blatant violations of rule of law on the part of civilian and military rulers alike negated the establishment of a democratic structure in the country. It is tragic that even after nearly 60 years of its existence, the State is looking for “representative and sustainable democracy.”
In the wake of elections of Feb 18, 2008, there is a need to initiate a national debate to find out why the larger part of our history has been moulded by repeated constitutional hiatuses, prolonged through conspiracies and chicanery, and sustained whenever necessary by the political use of religion, resorting to a self-styled defence of ideological boundaries of the country and self-assumed definition of “national interest.” All this ultimately has led this nation to hardhearted intolerance and politics of revenge. We must analyse the causes behind the present chaotic situation and then through national consensus and reconciliation try to establish a true democracy, which is not possible without a free and independent judiciary. In any society, administration and dispensation of justice should be the top most priority; “representative democracy” is not possible without rule of law. A society without a trustworthy and speedy judicial system, which does not ensure effective dispensation of justice, cannot survive for long.
The rule of law embraces at least three principles. The first principle is that the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power. The second principle requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order. The third principle requires that law regulate the relationship between the state and the individual. The institutions and individuals in Pakistan should abide by these principles if democratic culture has to flourish. This is the time that all political parties, media people, intelligentsia and representatives of civic society should act collectively and resist the anti-people, obscurantist and anti-democracy forces that are showing muscles to derail democracy and resist the existence of an independent judiciary.
The writers are visiting professors at the Lahore University of Management Sciences. Emails: email@example.com and firstname.lastname@example.org
source: The News, 28/4/2008