In the right direction

Daily: Pakistan Observer
Date:21.09.08

Even if the deposed judges have not yet been restored, the society is heading in the right
direction for an attainable goal: independence of the judiciary.

Re-employment of the judges is a great compromise on the principles the society has been
striving for since November 3, 2007. Acceding of a few judges to the call of the incumbent
government to get re-employed – if it is not capitulation – is a grave injustice to those who
yearned for independence of the judiciary. The society supported the lawyers’ movement
which was to provide a rightful place to the judges who had refused to budge under the
pressure of a military dictator. The society is still flabbergasted on the reasons for which a
few judges have opted for re-employment thereby making the words of the critics proven
right that the judges have been struggling for their posts. Some say that the society has
been betrayed; some say that a portion of the bench has showed unfaithfulness to the
cause.

It is yet indecipherable what has been the objective of the re-employed judges since
November 3, 2007, re-employment or reinstatement? The society thought that these judges
were struggling for independence of the judiciary that was why the people struggled for
their reinstatement.  Nevertheless, if re-employment had been the issue, it should have
been conveyed. By inference, it seems that the re-employed judges would have accepted
the option of re-employment, had it been offered in the past.

Independence of the judiciary is not just to dispense justice to the public but the specie
which can reap most of the benefit accruing out of the independence is the politicians,
especially parliamentarians. One may argue that the forthcoming Eighteenth Constitutional
Amendment will circumscribe the constitutional areas offering space to a military dictator by
thwarting his adventure into the political sphere. One can further argue that the
Amendment will expand some other areas to shrink space for any undemocratic
adventurism. In other words, more constitutional safeguards can be placed to fend off the
chances of the military taking-over the Parliament.

Well said! What about the will of a dictator to declare the constitution including the
safeguards a collection of rubbish papers and a waste of ink? Further, how many remedies
can be incorporated into the Constitution to avert the ‘extra-constitutional’ situations from
becoming smoke-screens for the military dictator? Above all, how to discredit the de facto
doctrine?

For the Nov-3 Martial Law (imposed in the name of Emergency), the extra-constitutional
pretext was that the then Supreme Court headed by the deposed Chief Justice, Iftikhar
Mohammad Chaudhry, had been taking actions in the cases of the missing persons and
had been summoning the heads of the security agencies to the Court to hold them
answerable. That act of the superior judiciary could have been called extra-constitutional,
had the then Parliament – stuffed with the cronies of then President General Pervaiz
Musharraf – passed , at least, an Act of Parliament, on the missing persons legitimizing
their missing status. Had the then Supreme Court interfered in it, a case could have been
pleaded for an extra-constitutional situation. Otherwise, the Articles enshrining the
fundamental rights and freedoms of a citizen of the country should have been scrapped
from the Constitution.

Musharraf exploited the issue of the missing persons in two ways: firstly, by protecting the
missing persons issue, Musharraf invited attention of the west towards his indispensability
on the war on terror, and secondly, by taking hide of the issue, Musharraf got a chance to
remove the superior judiciary who was impeding his way to become an unconstitutional
president of the country.

First time in the history of the country, the judiciary dared challenge the unconstitutional act
of a military dictator who had already shown his merciless and stubborn approach to those
who came in his way to grab power. The stance of the judges of the then Supreme Court
was not for their posts but for having a constitutional supremacy in the country out of which
sprouts the democratic system. Failure of the lawyers’ movement in reinstatement of the
deposed judges means that in future there will be no guarantee of democratic survival for
any government and that the bar and the civil society will not stand up to any injustice done
to the constitution. The major sufferer will be the parliamentarians. So no one should
celebrate on the chicanery applied to re-employ the judges thereby weakening the
reinstatement stance.

Retrospectively, the Long March of the lawyers’ movement should not have been called off.
Now, the lawyers have been resorting to agitation to get the deposed judges reinstated. If
more number of the deposed judges is re-employed, the strength of the lawyers’ movement
is bound to diminish. The same will offer an opportunity to the central government to fall
heavy on the lawyers protesting in Islamabad.

Temptation for any sitting government to have a pliant judiciary is irresistible. Similarly,
enticement for any military regime to take over the parliament in the presence of a
compliant judiciary is also unavoidable; at least the past dictates so. It means the strong
point of any government is also its weak point ready for exploitation.  

Further, being piqued at the broken promises on the reinstatement of the deposed judges,
a section of the political force has left the government benches and opted for the
opposition benches. That is not a good omen for the sitting government but a healthy sign
for democracy and constitution that a political party has taken stance on the principles. In a
society where the principles are made subordinate to the political objectives and where
those are rewarded who prefer principles to personal gains, an order – whether it is social,
moral or legal – cannot be established. The society, therefore, needs to carry on its
struggle for independence of the judiciary.

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