Jun 012008

IGNORANT masses, influential landlords and bigoted clerics, strong regional groups but weak national parties and, above all, a small and disinterested middle class are collectively blamed for Pakistan’s failing democracy. Those factors are unchanging and with the passage of time, perhaps aggravating.

The lawyers and Nawaz Sharif have now come up with a new, complicating hypothesis: democracy, even in its new exuberant phase, must fail unless Iftikhar Mohammad Chaudhry returns as chief justice. What a misconception! The office of chief justice is pivotal to the rule of law, not to democracy.

Democracy in essence means rule of the people through representatives chosen by and answerable to the people. It is a form of government (with many variants — the most familiar being parliamentary and presidential) in which the powers of the majority are exercised within a framework of constitutional restraints which guarantees to all citizens (not the majority alone) enjoyment of equal individual and collective rights.

Though the rule of law is not a basic ingredient of a democracy the worldwide experience is that it is best ensured by the people’s own representatives rather than by a hereditary monarch or by military rulers or by ideologues of one or the other creed.

It was the limitations that the constitution imposed on institutions and the accountability of the government to the people which persuaded Winston Churchill to say in his own inimitable way: “Democracy is the worst form of government except all those other forms that have been tried from time to time.” It is in a democracy that the rights of all citizens are best protected and that is what the rule of law means. After all, courts were in session in London when the Nazi bombers were pounding the city.

It is Pakistan’s misfortune that neither its elected representatives nor its military commanders worked within the limits that the constitution placed on their authority. Even accountability by the people never bothered them. Elections were held at long intervals and when held were rigged. The middle class, which is considered to be the backbone of a modern democratic society, hardly ever voted. In the protection of rights, there wasn’t much to choose, between the democrats and dictators. These were denied or threatened under both.

A greater misfortune has been that the election commissions (comprising judges) and the courts looked the other way or connived at the violations of laws and fundamental rights. Let it be said to serve as a reminder that Z.A. Bhutto was hanged by the order of the judges and Nawaz Sharif too was held guilty of hijacking by a judge. And, just imagine, for eight years, the courts could not find the time or muster the courage to convict or acquit Asif Zardari of the charges brought up against him not by Musharraf but Nawaz Sharif.

Against this backdrop one could justifiably conclude that the generals and politicians between them have been ruling the country aided by judges for reasons which cannot stand the test of the rule of law nor of democratic norms. Now, at this promising moment in our history, the politicians, the generals and the judges, combined or separately, must not be permitted to hold democracy and the rule of law hostage to their personal interests.

The dilemma today is whether the popular reaction to the proclamation and PCO of November 2007 has really brought to a close the long and sordid chapter in which the rulers failed to abide by democratic principles and the courts to enforce the rule of law. Apparently not. No doubt Justice Chaudhry and some other judges blazed a new path by refusing to take the oath but a larger number did, and more hastened to join them.

No possible legal remedy suggests itself for the resolution of this conflict of views and clash of interests at the highest judicial level. The judges who have become beholden to the government must not stay nor should those return who have turned political. Justice Chaudhry’s threat to punish only those judges who took the oath, however, has closed all doors to conciliation on this basis.

The lawyers and political supporters of their cause now have to choose between shouting on the streets and debate in parliament. The dignity and independence of the judiciary admits of no compromises or conspiracies. It needs to be rescued from the clutches of the generals, the lawyers and the party bosses and the decision should be left to parliament. There the majority view should prevail. That is the only course now available to return to the rule of law.

The oath of a judge stands at the centre of the controversy that has divided the judiciary and plunged it into the politics of protest. Does the language of an oath prevent a judge from doing justice is the question which doesn’t get a uniform answer even from the judges. For Justice Wajihuddin Ahmad, a non-PCO judge from the past, it may distract but doesn’t prevent. That to him has been a reason compelling enough to lead an intellectual effort as opposed to rabble-rousing. The answer of Sajjad Ali Shah, who was chief justice in the trying times of Nawaz Sharif’s second government, is more categorical: ‘it doesn’t at all’. His reason is simple: conscience stands above oath.

Almost half a century ago when one Qaiser Khan was sessions judge in Mardan and this writer a trainee magistrate there, this very question of oath came up in a chit-chat. Qaiser Khan, who had a raw sense of impartiality, wouldn’t go into the logic of it but said that a judge who felt the need of an oath to do justice, or to deny it, didn’t deserve to be a judge.

Seventeen years later, it seems Gen Ziaul Haq got wind of Qaiser’s views. The prosecutors then saw to it that judgment on Z.A. Bhutto’s appeal against his conviction was delayed till the same country bumpkin Qaiser Khan sitting on the appellate bench of the Supreme Court had retired. The judges who were under oath “to do right to all manner of people, without fear or favour, affection or ill-will” then became a majority. The rest is history. Now perhaps we should look beyond the ‘oath’ to determine who is fit to be a judge and who isn’t.


Source: Daily Dawn, 1/6/2008

 Posted by at 5:11 pm

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