Dr Rubina Saigol is a respected human rights activist, researcher, and academic who has been widely published on Pakistani society. Her column in today’s Tribune, “Judicial independence and rule of law,” is a fresh perspective on the current struggle between some elements of the judiciary against the parliament.
A new controversy appears to have erupted on the national scene. Once again the hotly contested terrain is the independence of the judiciary to ensure rule of law in the country. A group of lawyers have argued that the new mode of judicial appointments prescribed in the 18th Constitutional amendment amounts to an attack on judicial independence and the hallowed notion of rule of law.
A competing perspective offered by other lawyers, including the iconic leader of the lawyers’ movement Aitzaz Ahsan, is that judicial independence is not compromised in the new procedure. Still others contend that the executive and the legislature, as elected representatives of the people, play a role in the appointment of senior judges, a practice followed in the US. Eminent lawyers like Babar Sattar have pointed out on various occasions that judicial independence is guaranteed through the security of tenure — a judge who knows he cannot be arbitrarily removed is potentially capable of judgments that reflect independence.
At the heart of the seemingly purely legal debates are deeper issues regarding how we as a nation want to organise our social, moral and political existence. It is the right of the elected representatives to make and amend laws and the constitution in line with the aspirations of the people whom they represent. The judiciary certainly has the right to review laws that may contradict fundamental rights or other important provisions of the constitution. Nevertheless, the growing tendency to constantly reject everything that a duly elected parliament enacts reflects a negative trend that, if taken too far, can end up negating the will of the people.
The danger is that if left unchecked, such a trend may entrench non-elected state institutions so deeply in society that they come to dictate everything — from morality to legality. This would turn liberal parliamentary democracy on its head and in the process, overturn popular sovereignty. Quite apart from the imminent danger of judicial dogmatism, there is a need to explore the notion of rule of law critically. An Enlightenment Era construct, the rule of law implies that society will be governed through a set of agreed upon rules and regulations that would be consistently and equally applied to all citizens and no person would be above the law.
Rule by a set of consensual principles would replace arbitrary and whimsical rule by individuals. Power would be invested in institutions that represent the larger collective rather than in individuals. Further, it would not be exercised in the interest of repression but for the larger good. This, however, is the ideal. In reality, the pretension that the rule of law is a value-neutral, impartial concept does not stand up to scrutiny. Societies are divided along the many axes of class, gender, religion, ethnicity or sect.
Laws, in countries like Pakistan, are made by people who hail from powerful classes and are mostly males who belong to a particular religion or ethnic group. Laws, therefore, are not neutral but reflect the interests of a particular class or gender. Judges, like everyone else, are a part of society. Irrespective of how honest and upright they might be, they too are subject to the human propensity for prejudice, for they too are rooted in a culture divided by religion, ethnicity, class and gender. Consciously or unconsciously, all of us have our biases and preferences. This is not meant to take away from the dignity of the honourable judges of the superior judiciary but merely a reminder that since most of us are located in fractured, unequal and hierarchical societies, an independent judge does not mean that he/she is freed of all prejudice and bias that comes from personal belief.
Despite the courage shown by our judiciary in the recent past, especially in their rejection of military rule, they are ultimately fallible. While they have become symbols of hope and aspiration and are under pressure to deliver justice, it should not be the case that all other public institutions, especially representative ones, should become hampered in their work because of the misplaced, though understandable and natural, desire for justice. Liberation from tyranny is strongest when it means freedom from our own prejudice as much as independence from another institution.
Ever since assuming it’s independence, our judiciary’s performance has been far from desired. It is becoming most evident by the day that there’s still a long way to go before we expect reaching our destination of having a truly independent, impartial and just judicial system. Our adjudicators have failed to digest the freedom they suddenly find themselves in. They are behaving like a person, starved for years but after finding the food suddenly, is in a hurry to eat every thing up. Far beyond than what he can digest and of course more than what he can sustain. Thereby, gone under a serious danger of chocking himself to death, not by hunger but by over eating this time.
Extremism has been our national character. We go from one extreme to another but never try to be rational or to find equilibrium. Always loose sight of the objective and continue doing the same mistakes but only from a different angle.
We may forget and perhaps forgive too, what this judiciary was doing before the ousting of CJ. But what we cannot over look is their performance after being reinstated by the elected government. Their first and foremost job should have been to reform themselves, concentrate on ways and means to remove obstacles in the line of justice. They should have come up as role models by starting accountability in their own constellation, as they had always claimed. Don’t they know of the corruption in high courts and specially that in the lower courts!! Where, it actually matters.
However, judiciary not only fully politicized itself, but emerged as a political party and a pressure group, craving for more and more share in power. Instead of being a savior, protector and an interpreter of the constitution, it is now playing administrators and legislators as well.
From a most docile lamb, it has transformed into a wolf. From a hereditary habit of saying YES to every dictator, they have now decided to say NO only, just for the sake of it, making it a matter of prestige than justice, a useless exhibition of power. The urge to display their (reckless) power has gone so strong that they entirely seem to miss the objective behind their actions. It’s prime example is the recent demolition of Plaza’s, that seems to be aimed at nothing but purely a demonstration of power and supremacy. Not realizing, they’re cutting the very branch they’re nesting on. Good or bad, whether to their like or dislike, it is the democracy that has given them this chance. They could do nothing as long as Musharaff was in power, their long marches and protests could not reinstate them. It became possible only after Musharaf left and Zardari became the president. Yes, Zardari didn’t want to reinstate them, yes, he did it most reluctantly, yes, he was forced to do it. But why do we forget, our judiciary was also FORCED to take a principled stand. Had Musharaf not dismissed C.J, our judiciary would still be sleeping, as ever.
If we all are willing to forget what made our judiciary take a stand, why can’t judiciary forgive and forget what made Zardari reinstate them!, what matters is that he DID. As a matter of fact, it was not Zardari who reinstated the judges but ONLY democracy (even though it’s more of a feudal democracy at the moment).
Though, judiciary has behaved and reacted in a rather normal, or perhaps a natural way. By starting to attack the same system, that restored them. However, that is what you expect from the average or below average people. This is not some thing one can even remotely expect from the most highly educated and reformed judicial fraternity.
They have utterly failed to show impartiality, they have failed to stay away from politics, specially, the power politics. They have failed to show character and qualities expected from refined, thorough and dedicated adjudicators. They have emerged as the strongest pressure group, failing to build their image as a truly AZAAD ADLIA, instead, chosen to appear as SHARIF ADLIA, at the most, which is nothing less than catastrophic.
Seeing, how immature our judiciary has performed after its reinstatement. They don’t appear any different from our politicians, who also need a few decades to reform themselves. All those who believe in democracy as the best system, who believe that it will be only through allowing democracy to run that we can find reformed and honest politicians. Must also understand that we will find reformed and honest judges only if democracy is given the chance to prove itself. Otherwise, the whole system will collapse, including judiciary, yet again.
Already we are seeing splits among lawyers, while judiciary rapidly looses it’s support and credibility among public, becoming as controversial as all the rest. The most recent incident of government’s withdrawal of notifications for the appointment of Justice Khawaja Sharif and Justice Saqib Nisar, cannot be seen as a victory for justice. Not even a victory for the judiciary. It only tarnished their already weakening image for being impartial and non-political, even further. We don’t see Prime Ministers and Chief Justices meeting to resolve a sub judicious matter in any civilized country.
It is imperative that judiciary must begin to show some restraint. Begin focusing upon it’s own business, instead of trying to administer or to legislate. Don’t cross that thin line where this whole system has to be wrapped up. They must adapt a very careful, slow but a steady approach. Postpone all those political issues, adventurous agenda and point scorings for some time. Concentrate on those core issues that concern the lives of common men. Strengthen the accountability system, reform themselves, activate consumer courts to bring all those to task who are responsible for cartelization, hoarding and market manipulations. Do not open too many fronts at the same time, take them on one by one but make every thing conclusive. Don’t handle it like the sugar scandal, where so much was said but at the end nothing was actually done. Freedom of judiciary is meaningless if it does not translate into freedom of people.
They must learn to build a reputation through their actions and not through mere intentions. They may have a heart of gold but so does a hard boiled egg.
Fawad Ahmad.
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