Tuesday, May 26, 2009

The judges issue

Dr. Umar Khan
Dr. Khan heads a Lahore based Think Tank.

The judges issue

For more than an year the judge’s issue has gripped the nation. Despite the show of heavy-handedness by the previous government and political maneuvering of the current government this issue refuses to get sidelined. The latest popular line is that it is a war of egos between Gen Musharraf and the deposed Chief Justice. Either this particular line is being intentionally planted or the wary nation is tempted to simplify the issue is not very clear but some very respected writers are also propagating this message. Is the issue this simple? Is the nation a hostage to the egos of two individuals? Nothing can be farther from truth. There are a lot of basic principals at stake here, which the rest of the world settled a long time back. We are in the process to do it; better late than never.

The real issue at stake here is the establishment of the principal as to who has the right to rule Pakistan; the people through their collective wisdom embodied in their constitution or the man holding the biggest gun? Does the constitution form the basis of laws or is it subservient to the whims of individuals desecrating it at will? Apart from the core issue there are a host of coat tails directly or indirectly associated with it.

Pakistan has a very proud distinction of being the only country in the world created by a lawyer in an absolute democratic and legal process. The colonial masters despite being oppressive had the decency and wisdom to follow the laid out procedures and law; something our later rulers conveniently ignored. Despite the proud beginnings the nation fell into the trap of the unelected government servants interfering in politics against their oath immediately after the loss of the father of the nation. Gradually this trend kept on increasing and ultimately breaking of the oath became an acceptable, rather desirable thing, which could be done at will bringing rich dividends. Due to this impunity we saw unelected government servants ruling the country for 33 of the last 50 years directly and the rest indirectly.

Compliance of two different kinds forms the base of this problem. To begin with the abundant dictators we have find compliance to the constitution or written law of any kind very difficult if not outright impossible, even to their own tailored constitution. Gen Sikander Mirza could not comply to his own supervised constitution of 1956 preferring martial law over its implementation. A decade later Gen Ayub Khan abrogated his own self drafted constitution handing over power to Gen Yahya. Zia after totally remodeling the 1973 constitution with the inclusion of the eighth amendment found respecting it very difficult ignoring it within 2 years and rumors abound that had he lived longer he would have totally discarded it in the name of Islam. Our current general Musharraf’s experience has also been similar. After thoroughly changing the constitution with the seventeenth amendment he found it unacceptable and abrogated the constitution of his liking and suitability on the 3rd of November creating the latest judges issue.

The other problematic compliance is of the citizenry to the illegal usurpers and their illegitimate orders. This attitude encouraged a series of dictators who played havoc with the country and its laws. The opposite of bravery is not cowardice but compliance and we as a nation showed lots of it. No one can abuse a person or nation without its silent consent and we as a nation willingly accepted the abuse given by our dictators. No wonder we find Pakistan facing enormous problems of all kinds.

All this was going on fine and most writers were preaching further compliance to the powerful as our fate ridiculing those who solicited defiance as “immature” or “idealists or impractical” until 9th of March, 2007 when the CJ showed defiance in front of brute power. This was the defining moment in the history of the nation and suddenly the power dynamics of the country changed. The civil society rose up unexpectedly for the rule of law and the status quo forces had to budge. The well-entrenched dictator resisted and ultimately resorted to extreme illegal action of the 3rd November culminating in deposing of 60 judges and writing of a new constitution needing another massive indemnity.

No self respecting nation state can afford to allow individuals to be able to single handedly amend the constitution jailing the entire judiciary. Constitution, the mother of all laws and institutions is a very sacred document and must be treated as such. Our constitution like others in the world, rightly considers its abrogators guilty of high treason. It is about time we further check our over compliance and pliability and bestow our constitution the respect it deserves implementing it in word and spirit including the neglected article 6. We also need to determine that either the uniformed security agencies owe their allegiance to an individual or the nation and its constitution ensuring that they support the written law and not individuals writing their ACRs.

The judge’s movement that started on the 9th of March and entered a new phase on the 3rd of November has already achieved a lot. It was the pressure it generated that was instrumental in forcing Musharraf to relinquish his uniform. It was the stimulated mobilized civil society that ensured relatively fair elections by the rulers with a history of holding dubious elections. It is this pressure that is allowing the status quo forces to give more powers to the parliament. It is this movement that has effectively clipped the wings of Presidency making the new Musharraf look totally different from the pre March 9 Mush.

The prevalence of monarchies in the Islamic world bred many problems that it is facing today. These monarchies did not let the democratic values develop adequately in the nation leaving them in a state of permanent immaturity. In all these monarchies there was no concept of the written law as the word of the monarch was considered legitimate law. Unfortunately these attitudes are so well entrenched that they still hold true facilitating the usurpers. This very well explains why we hardly see a credible democracy in the entire Muslim world. This simple fact has hurt the image of Islam and Muslims more than anything else, including the foolish blasphemic attempts.

Although the judicial movement has succeeded remarkably well but it must maintain the pressure to achieve more. The challenges are numerous and all of them have to be prevailed. The despots and the aspiring despots cannot afford an independent judiciary and there nefarious designs must be overcome. The constitution has to be supreme and it must be accorded the status it deserves along with two important institutions it creates namely the parliament and the judiciary. Unfortunately these three don’t command any uniformed armed forces directly so they have to rely on their moral legitimacy, which can be enforced only with mobilized civil society. We must keep on struggling to lend support to our parliament and the judiciary.

Despite showing sparks of greatness this nation some how falls short resulting in its pathetic situation. It must not give in this time irrespective of the different reasons and logics given to arrange further compliance. The judge’s movement is not for anyone’s ego or career, but basically for the implementation of the rule of law in Pakistan. Egotism is obesity of the head and no sane person can struggle to protect someone else’s. This argument is wrong and an insult to the lawyers leading the movement and the civil society sacrificing for the higher principals. The path is not short and the journey is not easy, we still have to succeed, after all the ripest peach is highest on the tree. We have to strengthen our institutions to make our country strong, stable and prosperous. This is exactly what differentiates between the ordinary and great nations and Pakistan is no ordinary nation.


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