EDITORIAL (May 30 2007): There is a story in the books that once during the heady days of Ayub era Justice M.R. Kiani found himself sitting in the fourth row in a conference hall at a function presided over by President Ayub Khan. 'How far away from power we are', he nudged General Muhammad Musa, the army chief, who sat beside him.

That 'power' was President Ayub Khan whose coup had been fully sanctified by Chief Justice Munir, thanks to the doctrine of necessity-that has lived on in Pakistan, in one form or the other, lending legitimacy to successive military coups of Generals Yahya and Ziaul Haq.

The one staged by General Pervez Musharraf in 1999 is also fully protected under the same mischief of law. Such legal aberrations may perhaps be explainable in a constitutionally 'mixed state', which quite often a country having parliamentary form of government may face, although separation of power is more integral to the presidential system of government.

However, the framers of the 1973 Constitution of Pakistan had clearly envisaged a fully independent judiciary, embedded in the concept of separation of powers, not only by adopting the Objectives Resolution but also explicitly saying so in the Preamble and Article 175.

The idea of separation of power is as old as the Greek City state and was discussed by Plato in his Laws, and then Polybious employed it to explain the stability of Roman government. But it was the French philosopher Baron de Montesquieu who polished it as a legal instrument to act as "a makeweight against extreme centralisation and as a reminder that no political organisation will work unless it can assume comity and fair dealing between its various parts".

It took time for the European countries to fully absorb Montesquieu's idea but the founding fathers of the United States, hateful as they were of Europe's monarchical governments, readily embraced separation of powers as a cardinal principle of governance and introduced it in their constitution.

This they undoubtedly do to ensure an independent judiciary and a viable system of checks and balances to protect democracy and forestall tyranny of absolutism. In most of the post-colonial countries the American styled separation of powers was adopted though they did not essentially opt for presidential system, which to some was the latter-day version of monarchy.

When General Musharraf took over in 1999 and became first the Chief Executive and then President the power naturally flowed to him; so much so that three years later when the 17th amendment indemnified his take-over and condoned his constitutional transgressions, the power that by then had accumulated in him was given legal protection by the courts. There was no serious contention against this, till about mid-2006 when he disclosed his intention to go for yet another term beyond the one that ends in late 2007.

The parliamentary opposition, soon joined by the civil society, objected to this. The presidential side responded in various ways, most visible being his adoption of ruling coalition comprising PML (Q), MQM and some PPP-dissenter groups as his power base. While the political forces opposed to it took to streets, the civil society looked into the Constitution, and concluded that both his terms as army chief and President must end with 2007. But the executive, (Establishment) contested this conclusion. That put the President and the Chief Justice on the collision path.

Most of the people trace the genesis of the present confrontation between the executive and judiciary in that mismatch of perceptions. It was, in fact, the melodrama of the circumstances in which Chief Justice Chaudhry was asked to resign, his refusal and the aftermath that has worked as the trigger to explode the long simmering resentment of the general public, particularly among the members of the civil society, including the legal fraternity against the President.

The President has been accused of being intoxicated with power. Though Chief Justice Chaudhry did not say so in so many words, without naming President Musharraf he reminded his audience of Lord Acton's famous axiom that 'power corrupts and absolute power corrupts absolutely'. Authoritarianism, he opined, is the anti-thesis of separation of powers.

Whether he or the President carries the day, we would know in the next few weeks or months. But will the judiciary, especially at lower levels, be really free in case of his victory, no body would venture a 'yes'. Not just this pro-Chief Justice movement but a whole struggle joined by all segments of society over a long time might succeed in obtaining some semblance of justice being made available to the common man.

At the same time it is very necessary that executive and judicial offices should be separated at all levels. For the lawyers who are now carrying the cross for Chief Justice Chaudhry the movement of independent judiciary might continue beyond its present mission. The real mission will have been accomplished only when inexpensive justice would be made available to all in an ambience of rule of law.

Copyright Business Recorder, 2007