200711.18
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REVIVAL OF CONSTITUTION AND JUDICIARY

Daily Dawn

18-11-2007

February 18 an election has raised hopes of a new beginning and all and sundry started talking about the agenda of the new government. As the discussions between citizens are reflective of their wishes and the hopes we find that revival of the constitution and the judiciary has been a major topic both on public level and intellectual level debates. We need to understand this discussion from at least two different aspects, namely; what is the meaning and significance of much repeated rhetoric “restoration and independence of the judiciary”; and how the nation can get rid of the menace of the constitutional deviations?

To address the first aspects one needs to understand what importance does the constitution carry, what is the constitutional position of judiciary and why the debate of independence of judiciary has attend a central position in the lives of common Pakistanis. It needs to be determined that what does the independence of judiciary mean for an ordinary citizen and for the federation. Nobody would, definitely, say that if the judges are not in fetters then they must be regarded as free or if the judges are getting hefty salaries, enjoying heavy perks and protocols then they are independent. But ironically few understand what is really meant by independence of judiciary.

Independence of judiciary; Why?

All constitutional jurists agree that in a federation people of a territory enter into a covenant with the state on certain listed protocols and in that covenant the arbiter who has to enforce that covenant the claims of the citizens and state and between the federal units is the judiciary. This is the organ of the state that acts as guarantor of the rights of the citizens and the federating units as agreed by them and acknowledged by the state. This is a body which reacts to any breach or violation. So, conceptually, there cannot be a federation which doesn’t have a judiciary that capable of enforcing the rights of federating units and citizens against the state. If there’s a judiciary which cannot enforce the rights of Balochistan, NWFP, Sindh, Punjab, FATA, the capital territory and the all the fundamental and incidental rights of a citizens then, in fact, there is no judiciary. One organ of state is in fact missing.

The rights of a person to remain in Pakistan, live in Pakistan and not to be taken out of Pakistan are to be guaranteed by the courts of the country. If the judiciary of country is not capable of protecting even this fundamental right then the federal setup may exist de facto but not de jure. A country may have a book threefold the present Constitution of Pakistan but it would not be a federation which qualifies on the touchstone of a definition of federation as enunciated by the jurists from the beginning of the times. One enters into agreements inherently assuming that they are enforceable. If agreements are not enforceable, it is just like if there is no agreement in existence. And if there’s no agreement in existence, the very existence of mutual relationship of parties is in question. So, somebody who thrive to undermine this covenant forming basis of this book called the constitution, is, in fact, undermining existence of this country, existence of the federation. For the same reason a powerful and independent judiciary is  sine qua non for the existence of federation. It’s inevitable. It is not conceivable that there is a country established as federation without a judiciary capable of enforcing rights of the federating units and the rights of its citizens. If a citizen of this country disappears, or is picked up from his home,   his workplace or from anywhere walking on street and is not brought before a court, not for one day, not for one week but for years, the judiciary has failed to enforce his right under Article 15 of the Constitution. If my home is not protected against the encroachment on my privacy, if my telephones are bugged, if there is wire clapping, if somebody is spying on me, the judiciary is bound to enforce Article 14. And one can notice that the thrust of most of the fundamental rights is against the federation. If there is a country where an ordinary citizen can get justice against another but both cannot get justice against the state that is not a state contemplated as a federation according to the jurists. The Constitution does not only contemplate the role of judiciary as provider of justice between individuals but also between individuals and state.

So, the foundational stone of 1973 Constitution of Pakistan is that this constitution is distribution box of powers. It distribute power to the federating units and federation, the judiciary, to the armed forces, to provinces and to the governors. Nobody else is delegating power. The President enjoys his own powers but he is not superior to the district Nazim of a district. Nazim of any district is working on his own place; a provincial governor or provincial chief minister is working in his own place and the President is working in his place. It’s not a big deal that one is the president and other is a small functionary in the system. Everyone is performing a different functions devised for him by the Constitution; which is,  in common parlance, the distribution box like our electricity distribution box. So, one has to test each and every action on the touchstone of the constitution while discussing a subject in the context of the federation. Role of the judiciary is to analyze a proposition, to decide it in accordance with the law and the constitution. That is why we call the rule of law.

Judges and judgments:

Keeping in view this concept in this mechanism, the criteria for the appointment of judges has to be improved. Only a judge who can appreciate his role as defined by the constitution can guarantee justice. Though the method of recruitment of the judges as introduced by the constitution is not perfect but it does furnish, theoretically, a basis for a judiciary which is structurally independent. It contemplates a judiciary which is structurally independent and is provided with an environment where the judges may be able to pronounce their judgments according to the constitution, without intimidation or threats. There should be no threat that if they decide a case against the ruler, whole court shall be wrapped up.

When we talked about structural independence of judiciary we mean that the court must have a definite size, a definite number of judges, with definite tenure serving on definite terms and conditions.  If a judge passes a judgment in the court, it should not happen that when he returns home, he finds that his official car is no more available to take him to Court tomorrow. Financial perks and privileges and everything relatable to his terms and conditions should not only be known but should not be in anyone’s hands to be changed. In short the element of number of judges of a court, terms and conditions, security of tenure and an environment which guarantees that they can give a judgment without fear or favour is called the structural independent.

And then, there comes the conscious of judges. No legislation, no code of conduct and no rules can make a judge more conscientious. The institutions are made of individuals and every individual has his specific traits. You cannot legislate integrity, you cannot legislate conscientious and you cannot inject honesty into a person to make him or her a brave judge with a strong character. But, if a judge enjoys an environment of independence, the judge will always indeavour to act more fairly and more independently. If the people of Pakistan are honouring them for rendering brave judgments and for not bowing before illegal demands of rulers, that will actually provide temptation to other judges to be independent and brave. I do not subscribe to the proposition that blames judiciary of having endorsed successive martial laws. Though there are judges with individual traits who have failed the nation through judgments which were not great, but if we have judges like Yaqub Ali, A. R. Cornelius, and Hamood-ur-Rahman and nation would have stood by them, then the judgment which was rendered in Asma Jeelani’s case would have received reaffirmation, afterwards and before. The institutions are made of individual traits. To establish reliable institutions we shall have to create an environment where a noble soul is always applauded and a weak person is effectively checked.

Judicial system of Pakistan is also marred by corruption. But corruption has taken its roots in the system only because it has been patronize by the successive regimes by design. Three years back, when justice Malik Qayum was found involved in Mr. Zardari’s case by seven judges of the Supreme Court, I wrote an article stating that there has been a partnership between corrupt  judges and the government. The government identifies corrupt judged, allow them to continue with their nasty business and oblige the government when the government needs them. The only way to have a clean, honest and independent judiciary is to kill the corruption and not the independence. It must be noted that a corrupt judiciary can never be independent judiciary. It will have to side by the rulers and conform to their wishes.

A very vivid example is the United States which subscribe to a method of appointment of judges with the choice of ruling political party and the judges are known to have political affiliations yet their judgments are not reflective of any leniency and favoritism. They protect their independence and non-partisanship even in those judgments where the state or the party is involved. The approach, the idea and tradition has remained consistent throughout the centuries. Also the political parties choose the people with absolute integrity. They do not have to be   lawyers or judges to be the judge of the Supreme Court but enjoy sound understanding of complex  situation and respect in society. One cannot buy a judgment  with money in the United States and cannot intimidate a judge with the state power to coercion. Recently the verdict of Court in  Hamdan Ali vs Ramsfield has come, which has seriously disturbed the ruling party. Hamdan Ali, the driver of Sheikh Osama bin Laden, succeded in the US Supreme Court when Mr. Roberts, the Supreme Court Chief Justice appointed by George W. Bush ruled that the people picked up in the conflict with Afghanistan, are the prisoner of war and are entitled to protection of Geneva Convention. Thought the judgment has come after five years and I agreed that this does not fulfill the requirements of justice but the emphasis here is on the independence of judiciary and its fearless pronouncement of judgment. Through experience of three hundred years of American history the US Supreme Court has provided flesh to the bones and skeleton of constitution and development a way of life. Yes, the societies are at different developmental stages but can we compare our Supreme Court with the US Supreme Court  in any degree, in terms of non-partisanship, independence and quality; unfortunately but definitely not.

But still there are problem at lower level and the struggle for independence of judiciary is underway in USA. The people in USA are raising this question “why we are divided between the Democrats and the Republicans and why we cannot have one judgment which is absolutely unbiased and un-inflexed by the consideration of political selection.

Strengthening the Institutions:

Institutions are strengthened through personal endeavours. On 9th of March, one judge of Pakistan’s Supreme Court said ‘No’ to illegitimate demand of a dictator and on 3rd of November 60 judges followed that one judge, having been hounoured by the civil society, respected by the masses  and recognized by the people of Pakistan. I happened to meet a number of them and they still say that they had no regrets and had performed the duty which the nation expected of them.

Unfortunately the ruling class has never been able to digest an independent judiciary. Late Zulfiqar Ali Bhutto in whom the credit of passage of unanimous constitution vests, himself went for the 4th Constitutional Amendment striking the powers of the judiciary and 5th Constitutional  Amendment taking away tenure of the judges.

The lawyer community has been criticizing the Courts and judges for their role in connection with the deviation from and mutilation of Constitution. in the past judges failed us. They chicken out at the eleventh hour. But now, when they have decided to stand up and not to chicken out, the nation needs to stand by them and rulers need to comply with sentiments of the nation.

On November 3, the structure of the judiciary was crumbled, the constitution was thrown away in order to send 60 judges home. Constitution was wrapped up only because it protects and guarantees the security of tenure of judges under Article 179 and requires a due process to be followed for ouster of a judge in Article 209. The Constitution did not accommodate that the judge could be sent home arbitrarily and because they rendered a judgment or they were about to render a judgment not acceptable to one individual. And even for the sake of clarity due process has to be followed to try, impeach and throw out a corrupt judge. If a corrupt judge has been dismissed summarily through an executive order, he has been glorified. This is rule of law and lawyers of struggling not only for the restoration of the judiciary but also for a greater purpose of establishing rule of law.

So, we may sum up our first point by saying that unless there is a judiciary which has a total structural independence, the train of federation cannot move forward even by one inch, by one millimeter. And this is what is meant by independence of judiciary.

In all societies of the world the question of independence of judiciary is a relative concept. The struggle for independence of judiciary exists in England, in U.S., in France and in all jurisdictions. Judiciary is, unfortunately, under restrictions and restraints more in Muslim countries. There is also another strange aspect attached to the role of judiciary in a society. Every autocrat considers the judiciary as the biggest obstruction in his way. It’s just like a scientific formula.

So, the independence of the judiciary is an attribute of the judiciary which empowers the judiciary to decide a cause filed before it without fear or favour and by the conscience of the judge. And in the presence of a wide awaked Press and a wide awaked civil society, it is not possible that the things in the court go wrong and authority of a judge is misused. If the Press continues to report independently and authentically, it is not possible that unfair practices may go on. This does not constitute a contempt of Court; this is freedom of expression acknowledge by the Apex Court. There should not, however, be unnecessary and careless scandalization aimed in blackmailing.

It may not be out of place to briefly mention that there is no contempt of court in the country for the time being. It was discussed recently by the Supreme Court in CJ Ch. Iftikhar’s assault case in detail and it is embarrassing even to mention that every body including law ministry and attorney general was in doubt. Contempt of Court Act 1976 was amended by Mian Nawaz Sharif in 1997 providing in intra-court appeal in Section 10. Then General Pervez Musharraf  issued multiple ordinances on the pretext of consolidating the whole law. The apex court found that 2003 ordinance came at a time which is protected under 17th constitutional amendment. And if you ask me then I shall say it is nice not having a contempt of court law and there should never be one. The respect and dignity of the judges is not guaranteed by the Contempt of Court Act, it is guaranteed by their own judgments. If a judge renders a judgment which gains respect in the society it would constitute guarantee for that judge. And that is the guarantee ejoyed by the courts and judges throughout the world. The Contempt of Court Act is relic of the colonial past.

Restoration

Keeping in view the facts and philosophy discusses above, the restoration of sacked judges too is, absolutely, again sine qua non for guaranteeing an independence judiciary. If the judges are not restored, if the judges are not drawn back to their position where they were performing functions, the coalition would fail them, the politicians would fail them. The federation will not move on to the next destination.

All the newpapers on 19th of February, one day after elections, from here and abroad, had a heading impression of the editors or of the leading news analysts that the elections had misted depression out of Pakistan. People of Pakistan had achieved win for the parties who had promised to the nation and had taken oath from their candidates that they will restore the judges to their position of 2nd of November, and that they will preserve the independence of judiciary. They had seen that  the brave lady, who gave her life for elections—Mohtarma Benazir Bhutto had gone to the chief justice’s home. She was not permitted to enter but she said, “He is the chief justice of Pakistan, I’m going to put him back on his chair.” So, when people found that the two main voted to power have made commitment for restoration of the judiciary, they all felt that here comes the solution to all their problems and once the judges are restored, the train of the nation will move forward towards further destinations, where they will address the economic crisis, where they will address the economic melt-down, where they will address the law and order problem, where they will address the host of the issues being faced by this country. But, that optimism has, unfortunately, vanished.

The country’s two main political parties entered into a known, transparent, proclaimed covenant through signing it at Bhurban whereby they declared three things; that they will restore judges; they will restore them through a parliamentary resolution followed by an executive order; and will do it all within 30 days. No details and no modalities were left behind. Now it looks as if one party never meant it to be acted upon. A constitutional package comprising of 62 constitutional amendments was launched. There had been no public debates; there had been no sharing of it even with political parties, so that wise men who are not sitting in the parliament could also  contribute  through their valuable  thoughts. This practice of consultation is followed in every country. There are countries where a constitutional amendment Bill has to be publicized six months prior to its taking up by the parliamentary party. In certain countries a six-month public debate period is required to float a constitutional amendment. This is because those societies   realize that amending the Constitution means amending the covenant between state and citizens. You aren’t merely making a new law.

I am not against amendments in the constitution. let’s amend the constitution if it is not delivering  the promise with which it came into existence. But, let us do it in a manner when everyone, every thinking mind in the country participating in that. Let’s not do it behind the close door.  Hazrat Ali (Karram Allah wajhul karim) had defined a sin saying that “A sin is something which you do not like sharing with people or doing it in front of people” like many in the country and abroad I too have no doubt in mind that this constitutional package is there to raise smokescreen. It is not at all aimed at solving any problem.

The journey of this nation has come to a standstill and during this standstill period the economic crisis has taken shape of economic melt-down. Rupee has lost 15 percent of its value. And all that has happened after 18th of February. After the people had celebrated and were in festive mood. As an indigenous Pakistani who see Pakistan as homeland for his next generations, my fear are that the more we delay the restoration of judges the more we will drown ourselves into the marshes of the crisis. And if we had done it the first day or at least on second or third day we would have been in a better position to cope with other very serious problems. But, this country will not travel further towards the destination of prosperity, survival unless we have a real judiciary because one of the organs which guarantees survival of the federation is, in fact, not territorial unit missing or if the people of a territorial or a geographical  units are missing.  One organ of the state is in limbo and unless we bring it on board, we cannot move forward. So, that is intrinsically linked with independence, restoration is also independence of judiciary.

Protecting the Constitution:  

We also need to ponder upon the question of possible and practical ways to stop the mutilation and violation of the constitution and define the options through which the nation can get rid of the menace of the constitutional deviation.

We can get out of the menace of the constitutional deviation by punishing the culprits, and along with them punishing their collaborators by holding public hearing and identifying those who  welcomed constitutional deviation. We can and we do identify the people from the political elite who have been welcoming deviations and hold free trials. If Article 6 cannot be brought into operation against a general in uniform or a general who has shed off his uniform and if we cannot impose penalties upon those who are collaborators we can at least do one thing which is tried and experimented in some parts of the world. We can follow the model proposed by the Truth and Reconciliation Commission. I have been a member of the constitutional group  in the Commonwealth’s Lawyers Association and immediately after 1999 we had a big debate spreading over weeks and we pondered over options to stop constitutional deviation in the Commonwealth, because Commonwealth is full of countries like Fiji, Zimbabwe and like other countries where there are frequent takeovers and there are frequent deviations. So, the entire body came to the conclusion that a moral judgment of disqualification of those civilian components or collaborators of any military quo be pronounced and this pronouncement of disqualification would begin discouraging public support for constitutional deviations.

We can stop constitutional deviations and we can successfully forestall them. We must keep in view our adjoining country which has a bigger war machine than ourselves; India has taken care of this question. Though, there are other factors involving, for example that their army hails from divergent areas, but what prevents the army from taking over the civilian control is a strong political will in the political leadership not to permit any deviation or even violation. Army always has a similar passion and a similar culture; even in the United States and even in India. If you keep reading newspapers, Bill Clinton had annoyed the army on the gays’ issue and thereafter he spent one year visiting garrison and sharing popcorn and Pepsi with his soldiers in all bases. Likewise, about eight years back, an air force person was superseded in India and there was an outcry in entire body-politic of India. They take corrective measures just on time because they know they will split into pieces and nobody will be able to consolidate and save them.

There is one proposal in the Bill which has to come, which aims at punishing the collaborators and those collaborators in the judiciary but ironically it is not meant for punishing the actual culprits. We have to start towards some bold steps to preserve our Constitution and our federation. We have not started as yet and this is the ideal time. The two parties command two third majority in the join House. What an opportunity! Just two parties, they constitute two-third of the majority of the two Houses together. And they can impeach the President and impeachment is not punishing him for the mutiny or for the revolt but it is to visit him for his twice imposed martial law in the country. If the coalition partners are sincere, they have an opportunity. To do this they need to be vigilant and brave enough to look out for the traps like Abu-Dhabi trap and NRO trap. They should not even fall into ‘mutual peaceful coexistence trap’. This is the time for them to start doing something which is more positive and which is more constructive. The country, the civil society too needs to mount pressure on the leadership that once you have got you cases finished please do some favour to the poor nation of this country that have him visited with the appropriate treatment in the joint session. I think if the political quarters move with this with unison that can happen.

Constitutional Intricacies:

It is also a misnomer that restoration of judiciary will create further crisis, it will in fact resolve the crisis. The questions about verdict of present Supreme Court annulling the judgment of seven judges on November 3 and about the position of subsequently appointed judges after November 3 are being floated. The question in this regard are raised on the assumptions that there’s a Supreme Court in existence which is validly constituted and the judgments it is rendering are valid judgments. If we have the Constitution of Pakistan as our reference point then undoubtedly the Supreme Court which has come into existence after 3rd of November is not the Supreme Court. Even General Musharraf had not minced words when he said, “I had taken an extra-constitutional step’. Now, with the wrapping up of that extra-constitutional step taken on 15th of December everything shall settle back to its original position. It is just like aab aamad, tayammam barkhwast. The judgments of Supreme Court shall only be acceptable when the Court itself is validly constituted. Otherwise, any few persons can style themselves into a Supreme Court and render a judgment to have it published in the Press and say that this is the judgment everybody should follow. According any significance to the judgments of existing Supreme Court would mean accepting General Musharraf to be competent to dismiss the Chief Justice and 60 other judges and to appoint new judges.

There are two views about the status of these recently appointed judges. One view is that they are not judges. The other view is that they are judges appointed by a usurper requiring validation by a rightly, correctly appointed Supreme Court. In Asma Jeelani’s case this issue came under discussion that what is the fate of benign acts taken by a usurper. If the establishes a hospital and he is a usurper, shall that hospital be demolished because it had been established by a usurper?







Or in our case if he appoints a judge, shall he be fired only because he has been appointed by usurper. The court verdict guides us that they require regularization by the order of a validly constituted authority which takes over. So even if they are judges, they require validation by the restored Supreme Court. I fear that there may be judges who shall not be able to withstand any scrutiny and I know that there are judges absolutely non-qualified for a post in the apex court. There are people who were serving as additional session judges and who are now judges of the Supreme Court.

If we are serious in forestalling deviations, we’ll have to shun the practice of condoning. We have to put a full stop or we just shun our hopes for the future of this country and live in the good hands and the kind and gracious care of General Musharraf and the establishment; only two options

Another question is of the tenure of judges if they shall be restored to their position.  We have a guiding precedent in Frontier Sugar Mills case, where a director of the company was wrongfully excluded from performing his functions. The Supreme Court found out that since he was excluded for two year, he must be restored and compensated with an additional employment period of same length. But, I don’t think it can be applicable to a constitutional limitation. But, then he can be compensated.

I would also like to address an argument raised by present judge of Supreme Court in which they had stated that November 3 actions were justified because Supreme Court Judges were overstepping their authority and virtually running a parallel government through their suo moto notices. Can one dare asking what notices did they really mean; of missing persons, of human rights violations and of plunder public money? I have appeared in a number of cases where suo moto notices were issued by judges even now serving in the Court and they still issue suo moto notices. Don’t these notices amount to running a parallel government?

The Real Crisis:

The real crisis is Pakistan is that of leadership. Unless the country has does not get rid of all mutilators and violators of Constitution, the crisis shall persist. Unfortunately out state is still headed by a person whom we know to be unconstitutional and who is not an elected president as per the Constitution of Pakistan. He was not qualified to command the army through giving extensions to himself for nine years because the tenure of post of Chief of Army Staff is three years. He could not have done that under any system of law. Any person with the credentials like him can never legally become president of Pakistan. He is not the person contemplated by the Article 41 of the Constitution. Even the Supreme Court did not validate his eligibility. Four of the judges of the Supreme Court declared that he was not qualified for the post while five other in the bench said that the petition was not maintaining because Jama’at-e-Islami was not an aggrieved party. So, technically, the judgment which is there on the merit is of disqualification of Pervez Musharraf. He and his ‘able’ team of lawyers understand that the review of this petition is pending and it will be decided whenever the Court is free and independent. To remove this objection Justice Wajihuddin appeared before the Court to get a verdict and nerves of general could not withstand the truth and emergency was imposed.

Pervez Musharraf has broken the court which was ceased of the case discovering on his eligibility. Having achieved whatever he could, he has become redundant in any case. The coalition should read the writing on the wall and move to the next step. No doubt, the things are tough but hope and struggle cannot be abandoned. When the going gets tough, the tough gets going. An optimist but pragmatic approach is required to lead the nation to a respectable living.