Restoration of judiciary

Retrieved from: http://nation.com.pk/daily/nov-2007/12/columns1.php

With one stroke of the pen, issuing the Provisional Constitutional Order (PCO), a contradiction in terms when a constitution is already in place, General Musharraf has pushed us back by decades if not more. With that act he has negated the constitution, made the legislature and the judiciary ineffective and created a legal havoc by imposing the executive, under the military command, as the supreme power in the country. This is not only a very poor outcome for today; it will have repercussions for us for a long time to come.

And his excuse for doing so: that the judiciary was getting out of hand. But what is it that the judiciary was saying? It was questioning whether he had the right to be the president while in uniform and whether he was eligible to contest elections, it was questioning whether the prime minister and the government had the right to forcibly deport Pakistani citizens when the court had explicitly said that they did not have such rights, it was questioning whether security agencies had the right to detain people without due legal process for indefinite or very long periods, and it was questioning whether the state could declare citizens to be terrorists without sufficient proof. Are these things bad? Was the judiciary pushing the country in the wrong direction by asking these questions? Clearly General Musharraf thought so.

And what had the media done? It had reported facts, it had given people’s opinion on facts and it had debated facts. General Musharraf felt that the media was ‘irresponsible’. He clearly does not know that ‘freedom of expression’ matters only when someone has a difference of opinion with you. If they agree with you, you are obviously happy with them, and the general was too, with the same media, till the beginning of this year. But now that media is telling him that almost all of his recent moves have been unpopular, which independent opinion polls have also confirmed, he has become unhappy with the media. Media has become irresponsible and ‘freedom of expression’ is no longer a good principle.

The imposition of martial law has taken the country down a route from where we will not be able to come back to the same spot where we were prior to November 3. After November 3 there have been thousands of arrests, hundreds of people (lawyers, journalists, students, human rights activists and concerned citizens) have been beaten up mercilessly and tortured, judges who had a conscience and had some concern for law have been sacked, constitution is held in abeyance and we are being forced to live in a state of anarchy and repression. With every passing day we are moving further away from where we were prior to November 3 and the journey back is looking more and more difficult. Those who support what has happened in the last week, and there are still some such heartless, mindless and soul-less people, say that things will be back to normal in a few weeks. But they are either being delusional or they are being deceitful. It is probably the latter.

How can the general lift martial law? He now needs someone who will legalise his actions from November 3 to the time of lifting of the martial law. And puppet legislatures and puppet courts will not work in creating this legitimacy. The day a more representative government comes, it will have to confront the demand for accountability for what the general has done. He will have to answer for taking away the basic rights of people, for arresting thousands, for beating thousands and for undermining almost all independent institutions. Even if he is somehow able to manage the legitimacy issue, if the judges that have been sacked in the last week are not brought back, we will never be able to go back to the place where we were and the general will never be able to legitimise himself in the true sense.

He can always get his cases decided by a new court, and the Attorney General tells us that such a court should be in place by Monday or Tuesday, but that will never give him the legitimacy that he is looking for. Can he bring back the same court, and can he hope to be in power even after that? That is the crux of the matter.

But if he decides not to restore the higher level judiciary and does indeed try to get himself and his martial law legitimised by new courts, he could get away with it for sometime and he could create the illusion, for himself and his coterie of sycophants, of legitimacy, but not only will it not last, it will also have severe long term negative consequences for the country. There is no way a sustainable and functioning democracy can be created in a country without an independent and free judiciary. If the judiciary is subservient to the executive, as this latest move has clearly attempted to do, there can be no effective checks on the executive and thus there can be no democracy or rule of law.

The general and his aides have to understand this. By making the judges take a new oath under the PCO, by making them subservient to the will of the establishment, by reducing their powers to hear cases regarding human rights abuses and other acts of the executive and by introducing more stringent checks on the judiciary the only result will be an ineffective judiciary: a judiciary that will not have the confidence and the trust of the people. And without that trust you can never have rule of law and a working democratic system.

So, even if the general gets himself legitimised from a gerrymandered court and a subservient parliament, and even if he can extend his rule for a year or a few years (and with sufficient repression he can do it), it will never be legitimate in the eyes of the world and in the eyes of the ordinary citizen. But more importantly, the person who says that he does everything for Pakistan and for him ‘Pakistan is first’ will have reduced the chances of our developing a sustainable and viable governance system in the foreseeable future. What a legacy it will be to leave.

A judiciary that fears sacking when debating cases, judges who fear that they will not be hired and promoted if they do not tow the line and judges who fear that they will be fired if they do not listen to the executive, judges who do not have the power to take suo moto action and judges who are selected on the basis of loyalty to the ‘King’, what kind of justice can they deliver, and what kind of trust can they create in the minds of the citizenry? And if they cannot create that trust, what kind of governance and democratic rule can we develop in the country? General Musharraf can repress opposition all he wants but he will never have legitimacy this way and he will never be able to live up to his own slogan of ‘Pakistan first’ this way.