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ARE WE LIVING IN A DIFFERENT WORLD? WHY CAN'T WE PROGRESS LIKE KOREA, TAIWAN, MALAYSIA? JUST BECAUSE WE LACK SINCERITY & HONESTY IN OUR WORK!!! DIFFICULT TO DIGEST THE FACT ISN'T IT !!!
This article is from The News (Opinion) of 22-07-08
Judiciary: friend or foe? |
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Part I
Tuesday, July 22, 2008
Ghazia Aslam
No historian can deny that the judiciary has played a consequential role in Pakistan's politics. The rulings the "law of necessity" and the "law of legal revolution" employed by the superior courts, time and again, to legalize military governments have earned the judiciary a reputation as a colluder with the army and bureaucracy against the political parties. Many historians and political commentators and sometimes legal scholars have attributed the failure or "destruction" of Pakistan's democracy to these decisions. Therefore, the judiciary's assertion of its own authority last year came as a very pleasant surprise to the whole nation. Despite a year of agitation by the judiciary and the legal community, some of us insist on accusing the judiciary of its past wrongs in a way that affects the current lawyers' movement.
The argument goes something like this: these very judges who are protesting against the dictator legalized the illegal rule of the same dictator some eight years ago. These judges, therefore, have no right to object to the system they helped to create. On the other hand, many of us are willing to let go of the judiciary's mistake in the interest of transformation of the political ethos of the country. While the latter argument is a good rejoinder to the former contention, let us analyze the role of judiciary in a different light and try to understand the judiciary's capacity in the political landscape of the country these last sixty years. This new understanding may also convince us to rethink our attitude towards the judiciary and hence towards the current movement.
The primary function of a judiciary in a constitutional democracy is to protect the constitution â€" the sacred contract between the citizens and the government and between different branches of the government. It does so by elucidating and defining the content of the constitution while arbitrating between different parties. In Pakistan, however, the judiciary has shouldered a much heavier burden than what is due on it. The courts have shaped the process of constituting the state. In a number of cases (a few examples are Tamizzudin, 1955; Doss, 1957, Usif Patel, 1955; Nusrat Bhutto, 1977; Benazir Bhutto, 1988; Zafar Ali Shah, 2000) the courts identified the source of the sovereignty in the absence of a constitution. It has allowed the discussions of relationships between elected and non-elected authorities and different branches of the government; it mediated between citizens and the state when the government was not empowered by the citizenry â€" sometimes even when there was no constitution. The courts had to fulfil this responsibility because other government institutions were weak. These cases should never have found their way to the court in the first place. In instances when the court expressly decided not to rule on purely political decisions, the nation felt betrayed as if the court was not performing the function it was supposed to perform. The inevitable consequence of involvement of courts in political decisions â€" burdened upon them by the absent legislature and insisted upon them by the civil society -- was politicization of the court.
The position of the judiciary even in a well-established democracy is difficult and when it is expected to perform the function of constituting the state without the established boundaries of power in an authoritarian regime, the task becomes formidable. In order to perform their function, the judiciary must logically be empowered with the authority to arbitrate future conflicts over the constitution and to overturn any actions of the government that violate it. In authoritarian regimes, the courts bear twice the pressure in comparison to a judiciary in a constitutional democracy. First, they have to regard the executive from which they are deriving their own authority more consciously since executive possesses the power to legitimate their capacity to judge. Therefore, when their judgments are not likely to be heeded, they try to find a balance where they can retain their authority over some part of the legal and constitutional arena. Secondly, when they are burdened with the task of defining boundaries of power between different branches of government they blatantly become party to the dispute where they are supposed to act as arbitrators!
Given these contradictions and complications in their role, judiciary has not fared too badly in Pakistan. Courts' authority in Pakistan has remained curtailed for significant periods of time. But whenever they were given some authority, courts have felt emboldened and passed judgments that reflected their aspirations for higher principles of justice. By legitimizing the military governments they managed to remain relevant to the political process in the country so that they could mitigate, to some extent, the effects of their own judgments. A famous case that serves as an example is the Mumtaz Ali Bhutto case (1979) where the court referred to the constitutional rights even during emergency. In 1988, in the Mustafa Khar case the court ruled that the regime "had to act within the bounds of necessity" and that the doctrine of necessity does not give license to act arbitrarily. There are a number of other cases, some more famous than the others, that are evidence of attempts of the courts to check the military regimes that they themselves legitimized as a middle ground between preferred democracy and feared autocracy. These decisions, however, have always come with a cost.
At more than one occasion, the executive troubled by the intermittent show of authority by the judiciary has nullified crucial judicial powers, abrogated the constitution and suspended the civil rights. When the courts' rulings challenged the government, the process of constitutional amendments was made simple enough to over-rule the court. Other than overt curtailment of their power by law, courts were left disabled by purging the judiciary of members that the regime did not approve of by requiring them to take new oaths. There is evidence of open intimidation of the judges as well. Even within the democratic government, the judiciary strived hard to remain authoritative enough to function meaningfully. Since keeping the court in agreement is in the interest of any ruling party whose objective is to consolidate its power in relation to other potential power holders, the courts were never allowed to achieve the separation of powers from the legislative and the executive branches of the government. If the government found the courts unsatisfactory, it ignored their findings, changed their personnel and lessened their weights among the triads of powers.
How does the judiciary achieve its rightful position in a constitutional democracy? To be continued¦
(Some of the ideas presented in this article are influenced by Paula Newberg's book titled "Judging the State: Courts and Constitutional Politics in Pakistan" â€" author)
The writer is a doctoral candidate at George Mason University in the US. Email: ghaziaslam@gmail.com
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