Under Mushrraf’s dictatorship courts have become joke and the people have to confidence in the justice system.
Lawyers’ continued struggle for democracy
Friday, January 11, 2008
Dr Tariq Hassan
The present superior judiciary of Pakistan is a military-established judiciary handpicked to serve the interest of the establishment generally and to preserve and protect General (r) Pervez Musharraf specifically. The present judges of the Supreme Court and the High Courts of Pakistan have assumed office by taking oath under the Provisional Constitutional Order dated 3 November 2007 promulgated by Genera Pervez Musharraf (as he then was) in his capacity as the Chief of Army Staff. Their appointment is, therefore, in clear violation of the constitution, contrary to all legal norms and practices of the civilized world and void ab initio. Consequently, there is presently no legitimate or credible higher judiciary in the country to provide relief to members of the public.
Notwithstanding the recent revival of the constitution, the judiciary has been grossly desecrated and its integrity and independence greatly undermined by the suspension of the constitution and proclamation of emergency on 3 November 2007 and the Provisional Constitutional Order made there under. The judges of the Supreme Court and the High Courts of Pakistan who did not take oath under the said Provisional Constitutional Order have been unconstitutionally and unlawfully declared to have “ceased to hold office” thus creating an unprecedented judicial vacuum.
The judicial vacuum created by the unprecedented unconstitutional and illegal acts of the government has led to a crisis of confidence in the legal community. Lawyers throughout the country have expressed their indignation by boycotting the courts and demanding the restoration of the pre-November 3 judiciary. Whether and when this demand will be met is anyone’s guess. The cause of the judiciary has received only lukewarm support from the political parties that are contesting the forthcoming elections and those that are boycotting the process have been unable to launch a mass movement on this issue. The lawyers therefore have only themselves to rely upon and must be prepared for what is likely to be a long haul. It will only be the lawyers’ perseverance in boycotting the unconstitutional courts that may yield positive results in this regard. Their perseverance may however falter unless an alternative remedy is found to appease the members of the public most affected by the boycott.
The lawyers have made enormous sacrifices in continuing the struggle for the independence of the judiciary for so long. Although they are willing to continue their efforts for as long as it takes, wisdom demands that their ability not be put to test. This is perhaps the longest lasting lawyers’ struggle for the independence of the judiciary. Its continued efficacy will depend on the legal community finding innovative ways of remaining productively engaged during the boycott both for themselves and for their clients. An alternative strategy for professional engagement would be commensurate with public aspirations as well.
Public interest therefore dictates that an alternative judicial framework be established to provide relief and justice to members of the public until such time as the pre-November 3 judiciary is restored. Given that it is the statutory duty of the legal community and the Bar Associations, (the latter in their capacity as the lawfully elected representatives of the legal community), to promote the rule of law and to facilitate the judicial process, it is recommended that the Supreme Court and Provincial High Court Bar Associations adopt a resolution to establish “civilian courts” to provide the necessary relief and justice to the public.
For this purpose, the Bar Associations may resolve to establish a society–the civilian courts council–comprising such Honourable retired Judges of the Superior Courts of Pakistan, who are known for their honesty, integrity and credibility. The Honourable Judges called upon to form this society may form or appoint its first management committee and take all decisions in respect of the establishment, management and operation of the proposed civilian courts consistent with the terms of the said resolution.
In order to afford easy access to a broad segment of the public the civilian courts should be established in Islamabad and such other cities in each of the Provinces, as may be determined by the council in consultation with the relevant Bar Associations, particularly those from the concerned areas. Each of the courts may be presided over by a retired member of the superior judiciary of Pakistan or a senior member of the legal community duly authorised and appointed by the council.
The civilian courts may resolve disputes presented before them, through usual litigation methods as well as through methods of alternative dispute resolution, including but not limited to arbitration, mediation, conciliation and negotiation. Given that the majority of the lawyers appearing before these courts would have been trained in traditional litigation, these courts may follow, as closely as may be practicable, the established rules of procedure and evidence. However, the council may have the option to prescribe other more relaxed rules for these courts. The decisions rendered by the civilian courts, that are not appealable, should be executed and enforced by the agreement and consent of the contentious parties obtained at the outset. This would reduce not only the dependence of the people on the state enforcement machinery but would also substantially cut down the cost of enforcement. A people’s Supreme Court, established for the purpose of providing an appellate forum, could serve as the apex court in this alternative judicial system.
Expenses for establishing, maintaining and operating the council and the courts, could be met by the legal community from its own resources, through donations from such non-political, non-aligned donor agencies as may be approved by the council this regard, and from charges levied on the litigating or disputing parties.
The Objectives Resolution, which is an integral part of the Constitution of the Islamic Republic of Pakistan 1973, envisaged the security of the independence of the judiciary. Unlike the measures taken by the present regime, the lawyers’ movement is not for the benefit of any individual or for the protection of vested interests but rather for upholding the highest principles of justice and integrity on which Pakistan was founded. The lawyers’ are determined therefore not only to have the pre-November 3 judiciary restored but also to provide long-term security to the required and necessary independence of the judiciary. Their objective leaves them no room to compromise with the present unconstitutional judicial system and they have no choice but to take their struggle to its logical conclusion.
The writer, a former chairman of the Securities and Exchange Commission of Pakistan, is an international lawyer based in Islamabad. Email: [email protected]
