Excellent piece in Dawn… The sad state of the country under this misguided and foolish dictator…
Hopefuly his end will come soon enough and Pakistan can progress as it was meant to.
Save the judiciary
By Khalid Jawed Khan
GENERAL (retd.) Pervez Musharraf is a self proclaimed adventurer. His eight years rule bears testimony to his brinkmanship. While the country may eventually recover from some of his adventures, others would have far graver consequences. One such misadventure was his action on Nov 3 against the judiciary.
Though not the first of its kind, it has never been so pervasive. When the curtain finally falls on the Musharraf era, as it inevitably would, and like all mortals, he too passes into the pages of history, the baneful effects of this action would continue to haunt us.
While the founder of the country was a great constitutionalist, Pakistan lacked an acceptable Constitution for almost a quarter century. Eventually when the country had a Constitution in 1973, the process of undermining it started immediately. Fundamental rights were suspended and the judiciary came under attack.
In a democratic society governed by rule of law, the judiciary acts as the custodian of the Constitution and the law. It functions at two different levels. At the lower level, the judiciary adjudicates disputes between litigants. Here the government and its different departments also appear as litigants but are no different from private litigants.
At this level of adjudication all that is required of the judiciary is neutrality. The courts adjudicate cases on merit in accordance with law without being influenced by any other consideration or factor. Our judiciary, particularly the superior courts have always been fiercely independent and impartial in adjudicating such matters even while functioning under the darkest clouds of civilian or military dictatorship.
It is at the other higher and constitutional level where the superior courts play an altogether different role. The litigation does not involve adjudication of private disputes. The role of the judiciary is somewhat anomalous as it is required to demarcate the constitutional role and functions of other organs or functionaries of state. While playing a proactive role, it must nevertheless remain within its own constitutionally allocated jurisdiction.
This occasionally brings the judiciary in conflict with the government. Despite the aura of its moral authority, the judiciary remains the weakest of state organs as it entirely depends upon other institutions of state and public opinion for implementation of its orders.
In mature democratic societies the public opinion expressed through a fiercely vibrant media and other countervailing factors prevent situations where the executive could trespass its constitutionally allocated functions. Where governments attempt to do so, courts intervene and the matter ends there. No question of defiance of orders of courts arises. In exceptional cases where the executive attempts to derail the constitutional process, as happened in India during the emergency imposed by Mrs Indira Gandhi, the people administer the ultimate penalty at the polls.
The situation is far more complex in countries like ours where the democratic process has not fully matured due to repeated military interventions. Even polls are rigged to distort the political process. We have an executive with untamed raw power at its command and determined to use and often abuse it. It is worse when the executive branch is headed by an ambitious man enamoured with the sense of his personal indispensability who genuinely suffers from the delusion that without him, there would be no country left, as is the case with Mr Musharraf. Unfortunately, he is not the first of our self imposed saviours.
In Pakistan the judiciary has often been called upon to adjudicate on the violation of the Constitution by the executive. Historically our judiciary has been informed more by discretion than valour. In 2007 the judiciary tried to reverse that trend through judicial activism.
Chief Justice Iftikhar Muhammad Chaudhry did not embark upon this journey in any planned manner. It started initially with a few cases where the government authorities had acted in a patently arbitrary manner. It soon developed its own momentum and dynamics as there was complete rot in the system. The level of corruption, mismanagement and abuse of power was beyond belief. The court was left with little choice.
While the orders passed by the apex court in exercise of suo motu power could be critically analysed and there is room for difference of opinion, it needs to be observed that in none of the suo motu cases did the court challenge or question the constitutional authority of the government itself. The court only directed the government and its different agencies and functionaries to strictly adhere to the provisions of the law and perform their functions accordingly. This turned out to be unacceptable to the military rulers.
In its recent pronouncement where the proclamation of emergency and Provisional Constitution Order (PCO) was upheld by the Supreme Court functioning under the PCO, the court has made critical observations about judicial activism. It may be pointed out that some of the learned members of the present Supreme Court were also members of the benches which had passed orders in suo motu exercise of power. None of the present learned members of the Supreme Court dissented while passing the orders which are now referred to as abuse of judicial power.
Many other countries have witnessed judicial activism. The Earl Warren Court in America virtually carried out social engineering. The Indian Supreme Court has developed public interest litigation vigorously. While in many countries excessive judicial activism resulted in ultimate judicial retreat, in Pakistan it has resulted in decimation of the judiciary itself.
After imposition of the second martial law on Nov 3, Pervez Musharraf has virtually wiped out the institution. This has not only resulted in a complete reversal of the trend of judicial activism at the higher level of operation/adjudication, the qualitative damage to the institution is so pervasive and complete that for the very first time in the country’s history, there is profound skepticism in the legal fraternity and national intelligentsia about the presently constituted courts’ ability and capacity to even continue to function at the lower level of operation/adjudication where its function is that of a neutral empire amongst litigants in most mundane and ordinary cases. Such is the existing state of affairs.
Such an absolute annihilation of the judiciary was not experienced in either Zia’s PCO or under Musharraf’s first PCO. By a single arbitrary stroke, some of the country’s finest judicial minds have been made redundant. Look at the Sindh High Court alone. Chief Justice Sabihuddin Ahmed, Justices Sarmad Jalal Usmani, Anwar Zaheer Jamali, Mushir Alam, Khilji Arif Hussain, Amir Hani Muslim, Gulzar Ahmed, Maqbool Baqar, Athar Saeed, Sajjad Ali Shah, Faisal Arab, Zafar Sherwani, Salman Ansari, Rasheed Kalwar and Arshad Siraj have ceased to be judges. Rarely does nature create a galaxy of such profoundly deep, learned, honest, upright and humane judges. We were blessed to have them but now we are cursed to have lost them so wantonly.
General (retd.) Pervez Musharraf still has an opportunity to atone for this fatal blow by restoring the judiciary as it stood on Nov 3, when he eventually revokes the emergency and PCO on Dec 16, as promised by him. If he still has any love for this country left in him, as he so often claims, he must rectify this grave error. If he fails, he would rank even lower than Zia and Yayha in our nation’s hall of shame.
