For justice & democracy-By I. A. Rehman

THE new establishment’s decision not to restore some of the sidelined judges has brought smiles to some faces and disappointment to many more.

Both reactions are bad for democracy’s fresh experiment. If anybody is celebrating his success in getting the better of some judges-under-restraint and dividing the lawyers he is perhaps unable to comprehend the consequences of relying on chicanery. If lawyers, civil society activists and individual citizens are already feeling frustrated, the process of democratisation could be arrested.

One hopes there is still time to respect the demands of democracy, the rule of law and fair play and restore all the judges dropped on Nov 3, 2007.

It is possible to argue that the leaders of the lawyers’ movement and the political factions trying to run ahead of them are not entirely blameless. They could not have believed that the mass support mobilised by them would be strong enough to bring the regime to its knees. Perhaps they could not or did not have the time to decide whether their agitation was in the nature of a trade union strike or a political movement for change.

If the former was the case the risk in stretching the struggle beyond the endurance of the judges and lawyers should not have been ignored. In such struggles it is crucial to assess when the agitation should be wound up and inflexibility replaced with pragmatism. If the agitation fell in the second category then the strategy recommended for long-term political movements should have been adopted — and in this there is room neither for short-period ultimatums nor for promising success within days.

But the independence of the judiciary is not a matter that concerns lawyers alone; it touches on some fundamental requisites of a democratic state. The foremost argument in support of restoration of the judges is the absolute need to undo the effects of the extra-constitutional proclamation of Nov 3, 2007. The lawyers’ demands and constitutional propriety apart, this was a part of the people’s verdict on Feb 18 as the electorate rejected not only Gen Musharraf’s front men but also all that he had done to extend his reign.

It is unfair to say that the people did not vote for the judiciary’s independence, because among the factors contributing to their alienation from the Musharraf regime, the sack of the judiciary figured at the top.

The argument that the proclamation of Nov 3 and actions taken thereunder were validated by a de facto judicial authority is manifestly untenable. The plea for the restoration of judges is at a par with the consensus-backed resolve to revive the 1973 Constitution. The latter demand has never been rejected on the ground that the arbitrary changes in it have been upheld by one set of judges after another. The reason is that in a democratic dispensation the people have the right to lay down the basic law that the judiciary is only authorised to interpret.

Also fruitless are references to the judiciary’s past sins and its subservience to dictators. The argument that the judiciary’s past stands in the way of doing justice to victims of autocracy fails on three counts. First, the judges are being punished for breaking from an ugly tradition and not for upholding it. Secondly, the way to prevent the judiciary from sinning is to respect its independence. Thirdly, making the restoration of judges subject to the whims of the executive will amount to making them subservient to the latter.

That the changes effected in the judiciary after Nov 3, though lacking in constitutional sanction, pose a problem is not disputed. But the impossibility of finding a way out has not been demonstrated. The point that actions of extra-constitutional regimes cannot be selectively addressed is valid. But this view only reinforces the case for reviewing all arbitrary legislation since 1958 to date along with the revival of the 1973 Constitution.

It is essential that the government pays serious attention to the consequences of its refusal to restore all the judges. The people believe that the moral high ground is occupied by the judges who only did what had been expected of them since 1954. Not restoring some of them will cause deep fissures in the judiciary — there will be judges who were retained by Musharraf, judges appointed after Nov 3, judges chosen to rejoin the Bench, and judges marked out for ditching. Differences of opinion on points of law make a judiciary strong but one cannot say the same about it if many of the judges consider themselves as carrying a heavy moral handicap.

Also, it is impossible to justify the exclusion of judges from the pledge to heal wounds. The judges issue has become a big sore. A large number of people have made significant sacrifices for the cause of the judiciary’s independence. Their feelings of betrayal will cause dangerous tensions in democratic lobbies.

The incipient cold war between the main erstwhile coalition partners is developing into a confrontation that could consume all their energies. The exigencies of power politics will distract attention from the all-important task of democratic consolidation. And this at a time when the multi-dimensional crisis of the state demands the greatest possible harmony among all political actors.

Moreover, the frustration that is likely to be caused to lawyers in particular and civil society in general, should not be disregarded. Theirs has been an exceptionally healthy movement. Its cause ranks higher and nobler than the stature and interest of the principal players. It roused a sizeable segment of civil society. As a non-violent, non-communal and pluralist movement it has set standards for public interest agitation and that are worthy of emulation. It has demonstrated possibilities of forging unity among the federating units through common struggles. Above all, this movement has helped the people rediscover their potential as agents of change.

The message that is being sent to the people is that whatever the nature of the regime they are not going to be allowed to contribute to governance, to the dispensation of justice or the formulation of policies that will affect them and the generations to come. This will increase apathy among some of the activists and push others into extremist camps. Eventually public discourse will peter out into a babble over trivialities and the people’s democratic instincts will shrivel into nothingness.

Dynamic civil society movements provide healthy blood to all human collectives. A government that deliberately ignores this principle can have no claim to being considered democratic or modern. Or even civil.

Source: Daily Dawn, 11/9/2008


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