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Judiciary’s pivotal role?

28 May, 2010

By Muhammad Ahsan Yatu


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“Judiciary acts as a guardian of the Constitution therefore it is described as the citadel of justice and an independent judiciary sets and declares the Constitutional limits and the powers of the state organs.” Chief Justice of Pakistan.

The CJP’s statement is relevant in case the state itself is independent of massive foreign and internal influences. Only democratic political forces can establish such state. In states other than the democratic ones, the CJP’s statement is not applicable. For example our judiciary did not act as the guardian of constitution when the constitution was abrogated or kept in abeyance by the Military rulers.  Rather, the judiciary not only legalised the Martial Laws but also helped the generals govern ‘a difficult country’ smoothly. It happened many times; and visibly in 1958, 1968, 1977 and 1999.

In the past the Pakistani generals did not show respect for the constitution because they thought religion, military might, military education and training, and support of the US, bureaucracy and the rich were enough to run the state. The military had an ethnic advantage as well. About 80% of our military’s manpower comprised of central and northern Punjabis, who had a hold also over the bureaucracy and media.

The judiciary’s validation of destruction of constitution was obviously a wrong act, but what else the judges could do in an abnormal situation. If politicians could not stop imposition of Martial Law, how could the others do so? The politicians failed to mobilise the people against military takeovers because our educated urbanites in general and media and bureaucracy in particular took it as a mission to weaken the influence of politicians by defaming them through intrigues and malicious propaganda. It was how the ethnic advantage worked for the military interventions. The ethnic advantage also worked in case of judiciary, because majority of the Supreme Court judges since Pakistan came into being too were from Punjab.

The judiciary acted in favour of Martial Laws in spite of knowing the results that under the military rule no institution, not even the military itself, would function properly.   What to talk of an independent judiciary, judiciary ceases to be judiciary during military and autocratic regimes, when it comes to settling such important issues as the powers of state organs. In circumstances that we had, the Martial Law administrator or the president-in-uniform was in his own person a ruler, a judge, a general, a lawmaker and a lawbreaker.  

The present CJP was removed by General Musharraf due to the decision he gave in the Steel Mill case. This decision saved a national asset from going into the hands of the rich. Some analysts criticised the CJP’s decision arguing that the Steel Mill was a white elephant and it would have been better for the state to get rid of it. This criticism is out of place when seen in the light of KESC’s privatisation that proved disastrous; and almost the same happened to other sectors where privatisation led to making of cartels. What we forget is that there is no big difference between modern day capitalism and socialism. Depending upon situation they are even convertible. More and efficient government is requirement of both economic systems.

The CJP was restored in July, 2007 due to democratic or peoples’ pressure. Had political parties not joined the lawyers’ movement, Musharraf would have been still around. The CJP was gracious enough to acknowledge peoples’ role through various statements that he gave afterwards and in which he repeatedly said that his decisions, too, would be protected by the people. That, however, did not happen. An example in this respect is about the reaction shown by internal and external powers to that decision of the Supreme Court, which had ended Nawaz Sharif’s exile.

On Nawaz Sharif’s relief application the SC declared his deal with Musharraf null and void, because it was made under pressure. Nawaz Sharif returned, but was taken immediately away to Saudi Arabia by a Saudi official who said that the deal was made first, in 2000, while the SC’s decision came seven year later. Nawaz Sharif’s second forced departure was disgraceful for Pakistan. And it was a clear case of contempt of court against the state, which could have stopped the Saudi prince, but did not.  The Supreme Court itself could have taken action, but did not because even Nawaz Sharif’s supporters did not dare to come out to launch a protest in favour of their leader or Supreme Court. The fact is that Nawaz Sharif’s party PML (N) has votes but not many political workers. The PML(N) supporters do agitate but only when they have the backing of undemocratic forces.

Such pathetic was our story a few years ago that it appeared as if we were a soul-less nation. We were politically asleep, and we remained so, despite the judicial movement that had temporarily awakened us. The story was extended further by Genera Musharraf when he imposed another Martial Law and imprisoned sixty Judges of the Supreme Court and High Courts. The lawyers and political workers protested, in the beginning with lot of energy, but with the passage of time protest almost faded.

Situation changed when Benazir Bhutto ignoring threats to her life returned to Pakistan. Her assassination washed away the whole script that Musharraf had written to extend his rule. Now, military is engaged in a time taking national job of eradicating the extremism, and the Sindhis, Seraikis, Balochis and Pukhtoon are no longer ready to live in an environment that resembles that of 2000 BC. The same is the case of common Punjabis and Mohajirs. They too are fed up with the political uncertainty caused by the repeated interference of state’s unelected organs in political affairs. Hence, ethnic advantage that was particular to the elites of one or two ethnic groups has spread — smaller ethnic groups have found, or can display, that they too can use ethnicity to their advantage — and lost its worth as a tool of subjugation.; and if an attempt is made to use it, it will backfire; and we may come across a 1971 like situation when Pakistan got divided into two countries.  

For the first time in our sixty three year old history we are having a government that knows what to do. It wants to end extremism in totality — theoretically as well as physically. It wants to befriend India and Afghanistan, which is the only way to say good by to the undesired side of American and Arab influence. 

The government has already done much. It finalised national finance award, brought in Balochistan Package, gave almost provincial status to Gilgit and Baltistan, amended Constitution to undo the wrongs of dictators, and freed and restored the imprisoned judges. It has to do much more particularly on one front, economy. To succeed on this front, it has to avoid confrontation even if confrontation is imposed on it. It has to act humbly. Humbleness is not cowardice; it is another side of bravery. Confrontation, though it may momentarily suit some sections of state and society, does much harm to democracy, to people, and ultimately to everyone and even to country.

True, we have a strong government which with the backing of people can fight for its survival for a long time to come, but why it should live in bad times created by others, and why it should not use its ability to strengthen the country. No matter what the men from other organs of the state say and do, the politicians should keep on acting wisely. A strong and smooth sailing democratic government and its continuity — that will eventually help the nation overcome all difficulties; particularly the one related to fatal ethnic disharmony — is the responsibility of politicians only. The unelected state organs have limited scope and capacity. History will not blame them if something bad happens to nation. 

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