JURIST Special Guest Columnist Taimur Malik, Executive Director of Pakistan's Research Society of International Law (RSIL) think-tank and a High Court Advocate, says the country's lawyers and politicians must put aside differences and short-term concerns and come together if Pakistan is to achieve an independent judiciary…
An independent judiciary is essential for the development of a free, fair and equitable social system. The move by Pakistani President and then Army Chief General Pervez Musharraf to suspend the Chief Justice of Pakistan on 9th March 2007 was considered as an assault on the institution of the judiciary in Pakistan by lawyers, civil society and ordinary citizens alike. The ensuing popular movement for his reinstatement was seen by many as the ultimate opportunity for the justice-starved people of Pakistan to establish a truly independent judiciary and achieve separation of powers in the country.
The movement secured Justice Iftikhar Muhammad Chaudhry’s return as the Chief Justice, but just as the nation was beginning to see hope for a strong judiciary, increasing judicial review of administrative actions by the Supreme Court resulted in the imposition of emergency in the Pakistan on 3rd November 2007 and the arbitrary removal of the majority of the country's superior court judges. This led to what Anne-Marie Slaughter has called Pakistan’s ‘black revolution’ led by the country’s lawyers. The results of the 18th February 2008 general election were considered a referendum against the former ruling party and a popular vote for the immediate restoration of the deposed judges.
But the people of Pakistan are now not so hopeful anymore about the restoration of judges and attainment of an independent judiciary in the near future. The voluntary deadline of 12 May given by the political leadership of the country for the restoration of the ousted judges passed by without the realization of any of the promises and led to the premature departure of the PML (N), the second largest political party, from the newly formed coalition government.
The political pundits are predicting fresh elections within one year while government-backed efforts are underway to convince some of the deposed judges to take oath as superior court judges and forget about the deposed Chief Justice. A number of senior judges in Punjab have already gone public with their refusal to serve under these conditions and insist that no selective restoration will be acceptable to them. The President of the Supreme Court Bar Association and leaders of many political parties including the PML (N) also want complete restoration but are not taking any immediate steps to start street protests as yet.
Pakistan's bar councils also appear unwilling to take the streets right away in protest against the elected political government. The reason may partly be attributed to the fact that many of the bar council representatives are members of the ruling PPP and don’t want to upset their political leadership unless overwhelmed by peer pressure from within the legal community.
Some factions of the legal fraternity think that 20th July 2007 was the high point of the lawyer’s movement when the apex court reinstated the Chief Justice and that he and his colleagues should have gone easy on the government institutions for some time and availed themselves of an opportunity to strengthen the judiciary. The majority still disagrees and believes that the courts are the only recourse available to ordinary citizens against state excesses and that therefore the Chief Justice was right in taking up thousands of suo moto and public interest litigation matters.
There are nonetheless other pressing reasons for a slowdown in the lawyer’s movement and these concern not the politics of the country but the economic implications which follow from any boycott of the courts and the present judges.
The legal profession in Pakistan has indeed produced some of the country’s most famous and richest individuals; nevertheless for most lawyers it remains a difficult profession with economic unpredictability a constant worry. The majority of the lawyers in Pakistan are self-employed and therefore boycott of the courts entails immediate loss of income and clientele, something only a few can afford to sustain for any long period of time. The sacrifices made by the majority of Pakistani lawyers and ordinary litigants during the last fourteen months are a testament to the courage, strength and perseverance of the country’s lawyers, who have become the torch-bearers of an unusual revolution for the 160 million people of Pakistan.
The fight for an independent judiciary at a time when the country is passing through wheat and electricity crises is an indication of the increasing awareness, maturity and development of a nation repeatedly ignored and deceived by its rulers in the past. In order to compel the present government to restore the judiciary to its 2nd November status, the lawyer’s movement will need to be backed by the political forces and civil society in greater numbers. 90,000-odd lawyers can’t be expected to continue to fight the battle for the future of the entire nation on their own. The PPP claims that the government is working on a constitutional package for the judiciary. But it needs to realize that the restoration of all deposed judges has to be the first and essential step towards strengthening the judiciary as an institution.
The people also want a pro-poor budget next month, better wages and healthcare, uninterrupted electricity supply and availability of essential food commodities. They also want answers to recent unilateral breaches of Pakistan’s territorial sovereignty by the world’s superpower, resulting in the deaths of many in the tribal region. But they realize that for all this to be guaranteed, an independent and proactive judiciary is equally important.
How can the nation expect justice from the present judges, especially in matters against government departments, when the judiciary has no security of tenure and continues to serve at the ‘pleasure’ of the ruler(s)? How can the nation expect judges, unless the deposed judges are restored with full honour and dignity, to look away from the doctrine of necessity and invalidate any future usurpation of power by a military chief?
The next few weeks are crucial for Pakistan and its future. The lawyers must go on against all odds and the politicians must sacrifice short-term gains to rally for those judges who took a stand for Pakistan, hoping to be supported and vindicated by the nation.
Taimur Malik is Executive Director of the Research Society of International Law (RSIL) Pakistan, a barrister of Lincoln's Inn (UK), and a High Court Advocate. He can be reached at firstname.lastname@example.org
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