ARTICLE (March 09 2010): March 9, 2007 was, undoubtedly, a tragic day in our history - the Chief Justice of Pakistan was barred to perform his functions on the pretext of filing of reference against him under Article 209 of the Constitution of Pakistan. What happened on that sad day and thereafter is now well documented in the judgement of the apex court reported as Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v President of Pakistan PLD 2010 SC 61.

It should be read by all the citizens. The media and civil society must publicise it so that common people know how a well-planned conspiracy was hatched against the judiciary - the target was not the Chief Justice alone.

The unanimous declaration of full bench of 13 honourable judges of the apex court on July 20, 2007 that Musharraf acted unlawfully in making the Chief Justice of Pakistan non-functional and/or sending him on forced leave proved to be a starting point of debacle of Musharraf as actions of November 3, 2007 could not save the mighty general having full support of the United States and establishment.

The historic struggle waged by legal fraternity, supported by political parties, media, members of civil society and above all by masses of Pakistan, made the period from March 9, 2007 to July 20, 2007 a landmark in our legal and political history. The first restoration of the Chief Justice of Pakistan was just a first step towards revival of democratic civilian rule and independence of judiciary in Pakistan.

The effectiveness of people's power - historic struggle waged by the legal fraternity supported by political parties and members of civil society - won victory for all. It was all due to masses of Pakistan that the periods from March 9, 2007 to July 20, 2007, from November 3, 2007 to March 16, 2009 and from March 9, 2009 to July 31, 2009 have become landmarks in our legal and political history. The second restoration of the Chief Justice of Pakistan on March 22, 2009 was not a triumph for an individual but a victory for justice.

It was a great step towards revival of true democratic rule and independence of judiciary in Pakistan. The decision of July 31, 2009 [Sindh High Court Bar Association v Federation of Pakistan PLD 2009 SC 879] proved it-a categorical finding has been given against unconstitutional acts of Musharraf and action taken against all judges who took oath under the Provisional Constitutional Order (PCO).

Though March 9, 2007 reminds us black days of authoritarian rule, yet it also rekindles hope for all political parties, media, intelligentsia and representatives of civic society to act actively and responsibly towards establishment of true democracy and civilian rule in the country. Instead of making things controversial now, we should evolve a national consensus on one point agenda ie supremacy of civilian rule and independence and impartiality of judiciary.

The need of the hour is to ensure an independent judiciary, free from all administrative clutches and completely insulated from any outside pressure. We as a nation must analyse the causes behind the present chaotic situation. Every other day, there are reports of corruption, deaths from starvation, heinous crimes, police atrocities, suicide bomb attacks, naked aggression against innocent civilians or unashamed ambushes of our security and the law-enforcement personnel.

It is the time that through national consensus and reconciliation, we establish a true democracy, which is not possible without a free and independent judiciary. Political turmoil is the direct result of undemocratic attitudes and lack of dispensation of justice.

The Pakistan that the Father of Nation, Quaid-e-Azam Muhammad Ali Jinnah, had visualised is still not complete. Today, the nation faces the same challenge. What is required is certainly a ceaseless struggle for the consolidation and progress of a representative democracy. Needless to emphasise that dispensation of justice is the main pillar of democracy.

We can never establish representative democratic rule and just society unless a free and independent judiciary is ensured. It is tragic that even after 63 years of our existence, we are looking for 'representative and sustainable democracy'. Democracy embodies some vital elements that are: fair and just electoral process, sovereignty of parliament, separation of powers, independence of judiciary, public accountability and rule of law.

Our political leaders 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 'responsible government'.

If we analyse the Pakistani scenario in the light of the above basic principles, there will be disappointment and frustration. Since the death of the Father of the Nation, no government in the country qualified as 'Responsible'. The conduct of each government since 1948 was to waste public money, push the people to international debt enslavement and mercilessly flout all rules and laws. So if we failed to have a constitution or a responsible government, it is not surprising.

The three constitutions we framed remained pieces of paper having no sanctity as even the framers of these documents violated them. The constitution of a country is a living and vibrant document that determines the future direction of the nation, provided there is respect for the document and for rule of law.

In a democratic set-up, the electoral process ensures the dominance of the people over those who hold political offices. If an election empowers an authoritarian ruler, it will itself be a negation of democracy as authoritarianism and justice cannot co-exist. The authoritarian rule can only be excluded or checked through a strong and independent judiciary.

In any society, administration and dispensation of justice should be the top most priority as without it 'representative democracy' cannot be established. A society without a trustworthy and speedy judicial system, which does not ensure effective dispensation of justice, cannot survive for long. Administration and dispensation of justice in Pakistan need serious attention.

In the wake of decisions, Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v President of Pakistan PLD 2010 SC 61 and Dr Mobashir Hassan & Others v Federation of Pakistan & Others PLD 2010 SC 1, there surfaces a great hope for rule of law and independence of judiciary in Pakistan at last.

The right of access to justice to all is a well-recognised inviolable right enshrined in the Constitution of Pakistan. Justice, therefore, can only be done if there is an independent judiciary, which shall be separate from executive and not at its mercy or depend on it. The selection process of judges of higher judiciary should be free from any interference or even participation of executive.

It is hoped when the national parliament will discuss and the proposed amendments in the Constitution of Raza Rabbani Committee, this principle will be kept in mind. Our future course of history now depends upon how successfully we tackle the issue of independence of judiciary.

The defining moments for Pakistan came on March 9, 2007. The unlawful removal of the Chief Justice of Pakistan posed a great challenge for judiciary and society as a whole. It was a matter of survival for us as an independent and respectable nation. In the wake of mass struggle for revival of independent judiciary, the apex court through a landmark and historic judgement on July 20, 2007, showed unmatched valor and collective wisdom.

The time has come that people of Pakistan have inviolable assurance of free and fair access to justice - it is the responsibility of political leadership to provide us a transparent procedure for selection of judges as independent, impartial and competent judiciary alone can check any authoritarian rule.

[The writers, legal historians and tax advisers, are members of Visiting Faculty of Lahore University of Management Sciences (LUMS)]

Copyright Business Recorder, 2010