Politics and judiciary

Pakistan’s judiciary is in the eye of a political storm. A former Chief Justice has been accused of his involvement in the conviction of a former prime minister and his heir apparent. Despite denials, a negative perception created by the recent events targeting superior courts judges is unwilling to subside. Judges are being publically accused of their bias, partiality and involvement in political engineering.

In all likelihood it might gather a momentum in coming days wholly discrediting the judicial system. The allegation against the former Chief Justice may ultimately prove false but it has damaged the image of the judiciary and its impendence. For that reason alone the matter should be thoroughly probed by a judicial commission by the Supreme Court.

Dispensation of justice in Pakistan has become expensive and cumbersome. Judiciary of Pakistan with the highest salaries and other benefits in South Asia is an elite club holding entry to it in its own hands to the exclusion of other branches of the Government.

It is guarded by a closely held code and a set of considerations beyond the constitutional mandate. Selection process has become a highly subjective and non-justiciable. Examples abound where choices of new entrants were agreed upon amongst the stake-holders in advance reflecting representation of different guilds, classes and clans. A day may not be too far when it may become a hereditary office.

Federal and Provincial executives and Parliament having been excluded from the process of appointment and accountability of the judiciary by judicial decisions and un-thoughtful constitutional amendments, the judiciary in Pakistan is now another state institution that claims absolute immunity from accountability in garb of its impendence.

Expecting superior judiciary then to play the role of a tribune to guard democratic process in Pakistan is neither fit nor proper. But when people celebrate desecration of Constitution(s) and political leaders are willing to lend their shoulders and to march on to the Capital to pull down governments of their political opponents and dispute electoral process it is certainly unfair to expect from a few dozen men in black robes to defend an onslaught on the constitution and democracy.

One might raise few questions with the benefit of hindsight. Had the judgment of Sindh Chief Court in the Moulvi Tamizuddin (1955) case been upheld by the Federal Court would democracy in Pakistan today be flourishing? Had the Governor General’s reference (1955) been returned by the Federal Court unanswered and matters were left for the representatives of the people would Pakistan be a true democracy today? Had not the martial law imposed on 7 October 1958 been justified by applying the Pure Theory in the Dosso’s case (1958) would democracy in Pakistan be deep-rooted? Had not illegal acts of General Yahya Khan including abrogation of the 1962 Constitution been condoned by applying the de facto doctrine by the Supreme Court in 1972 would Pakistan’s democratic institutions be strengthened? Had not the suspension of the Constitution and imposition of martial law been justified by the Supreme Court by applying the doctrine of state necessity in the Nusrat Bhutto case (1977) would people’s rule in Pakistan be permanently established? Had not the dismissals of several Governments and legislative assemblies (1988 to 1998) pursuant to Article 58(2(b) of the Constitution been justified by the Supreme Court in cases brought before it (except restoring in one case in 1993 and despite declaring action of dissolution illegal refusing relief in 1988-1989) would democracy in Pakistan today be un-fledgling? Had not General Musharraf’s martial law been justified and protected by the Supreme Court (1999) would Pakistan today be a vibrant democratic state? Had not General Musharraf’s been led to commit a fatal mistake of removing a Chief Justice would democracy and judiciary be faring well in Pakistan? Had not the judiciary been over-active and become an instrument in removing an elected Prime Minister in dubious contempt proceedings would the restoration of democracy in Pakistan after nine years of military rule continue uninterrupted? And finally, had not the Supreme Court intervened in the Panama Papers case (2017) and had left the matter for the court of people to decide the fate of those allegations by ballot would there be stability and better democratic norms in Pakistan? Answers are not unknown.

Pakistan’s experiment with democracy has all along been fractured for several reasons. It is alleged that Judiciary’s role has not been constructive as willingly and wittingly, it has been extending its support to the establishment and others to justify unconstitutional acts and encroachments. Judges trained in the colonial tradition were treated part of the establishment. They were unsuited to protecting new democratic institutions in the face of an all-powerful establishment.

Moreover, basing post-partition policies and working of the state on fears (existential threats) and unthinkingly cobbling unarticulated and ambiguous ideologies into the political order, adopting a federal polity and parliamentary form of government, without addressing distrust and building a consensus and holding sufficient debates thereon by the federating units, adopting a constitution after the dismissal of a legitimate constituent assembly and then avoiding free and fair elections thereunder owing to over-played existential threat and lastly, with a vulnerable economy hardly sufficient to support a large military apparatus that deprived the state to invest in its people by educating them and making them independent and free to exercise their inalienable right to be governed by the people of their choice.

Several other internal and external factors thus left little choice other than depending on and accepting aids and foreign loans to survive and support oversized military and colonially trained bureaucracy that were unwilling to change and adopt frugal life-styles. This state of affairs even exists today.

Even after seven decades of independence it is unclear what type of polity suits the genius of the people. If a constitution and political system thereunder cannot change the lot of people for whom it is made then something is seriously wrong.

People have not been trained and provided with the conditions for making free choices. Landed aristocracy continues to hold a sway over millions of uneducated, unemployed and economically challenged people in the rural areas while the majority of the urban population has been captured by real estate and industrial tycoons who have amassed unimaginable quantities of wealth that is poured into the electoral process to obtain access to Parliament and assemblies and the Election Commission helplessly looks on. Electables, a breed raised only in Pakistan, are available with the support of establishment who can provide majorities to form governments of choice. The dream of true democracy despite huge claims remains elusive because the people are unwilling to empower themselves.

It is highly painful to see the judiciary being embroiled into political controversies and its independence and impartiality coming under dark clouds. It is equally regrettable that judges have started frequently recusing themselves in matters coming before them for their political and personal affiliations. When impartiality and independence of the judiciary that claims to be the final arbiter of the law and constitution is called into question publically then democracy and constitution cannot be protected for a long time.

It is high time that it sets its own house in order by limiting its role to the constitutionally permitted sphere and by abandoning its populist role. Judicial activism has caused irreparable damage to the judiciary. Dispensation of justice in accordance with law and the constitution is the primary and constitutional function of the judiciary. If people’s rights are protected and granted then democracy shall flourish.

(The writer is Advocate Supreme Court and a former Additional Attorney-General for Pakistan. The views expressed in this article are not necessarily those of the newspaper)

Copyright Business Recorder, 2021