Wednesday, 18 February 2009

A judicial identity crisis

Judiciary has been one of the crooked pillars of the state of Pakistan since its creation. With certain exceptions our judicial history is full of decisions that always sided with the powerful dictators rather than justice itself. It is the judiciary that has always come to support desecration of constitution by despots.

Social commentators, more than often, blame the political parties, military and the bureaucracy for failure of democratic process in Pakistan and absence of any good governance. There is need to acknowledge the role all levels of judiaciary has played in providing overt legal support for time and again molestation of the constitution. Compliant judiciary has been a tool in the hands of dictators right from the inception of Pakistan.

There couldn't be a phrase filthier than "Doctrine of necessity" that our superior judiciary has used for justification for usurping of democratic rights of people of Pakistan. Atrocities committed by our superior judiciary include:
  • 1954 - blessing given (by CJ Muhammad Munir) to the imposition of Martial Law by the then Governor General Ghulam Mohammd introducing the doctrine of necessity
  • 1958 - endorsing (again CJ Muhammad Munir) the 1958 abrogation of constitution by the then President Iskandar Mirza as a legal constitutional revolution
  • 1977 - approving the martial law by General Zia-il-Haq as an extra-consitutional measure under the doctrine of necessity.
  • 1999 - applying the doctrine of necessity again to validate the overthrow of elected democratic government and subversion of the constitution by Gernal Musharaf
  • 2002 - validating General Musharaf's attempts to become president of the country through the backdoor of referendum
History provides evidence that Judiciary in Pakistan has time and again sided with the idea of "might is right" becoming a helping hand in subversion of constitution rather than guarding its sanctity.

Even when some honourable judges tried to stand up to the tyrany they were stabbed in the back by fellow judges as is evident in the case of CJ Syed Sajjad Ali Shah and later CJ Iftikhar Muhammad Chaudhry. Fellow members of judicary were easily available to stand up and give support to the those out to subvert any notion of independence.

Since the sacking of CJ Iftikhar Muhammad Chaudhry by General Musharaf in November 2007, for the first time in Pakistan's history, civil society through Lawyers Movement is leading the battle to help Judiciary deal with an identity crisis. CJ Chaudhry representing a not so long line of upstanding judges like Justice George Constantine, Justice A.R. Cornelius, Justice Dorab Patel and Justice Rana Bhagwandas - all men of great integrity, pitched against CJ Abdul Hamid Dogar and others representing a longer line of preachers of the "doctrine of necessity".

Who wins this battle will determine the future of state of Pakistan. To survive as a nation we need to ensure that we have a judiciary independent of financial and administrative control of the executive. I hope that the lawyers movement results in reinstatement of judges sacked by General Musharaf. This need to follow necessary provisions made in the way we appoint judges to apex courts which should be based on their ability, competence, integrity and courage. Judges with moral courage and willingness to take principled stand on justice are the only hope we have.

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