The reward of strong leadership

The reward of strong leadership

March 16, 2009-a landmark in Pakistan's history-will always be remembered as a great day for the revival of the rule of law, rejection of legacy of a military dictator, reaffirmation of people's power and demonstration of national consensus that dispensation of justice is the main pillar of democracy. The call for Long March and dharna (sit-in) till the restitution of pre-3rd November judiciary proved to be a great leap forward as the government of the day and establishment were left with no choice but to yield before the will of the people. The emergence of a new Pakistan on March 16, 2009 was, symbolically, the renewal of the spirit of Lahore Resolution of March 23, 1940-establishment of a State for the welfare of people with assurance of justice to all. If March 23, 1940 paved way for independence and separate homeland for the Muslims of sub-continent after long-drawn struggle against colonial rule, March 16, 2009 brought victory for justice-for the first time the establishment suffered a humiliating defeat at the hands of masses. Interestingly, both the events originated from Lahore.

In its 62 years of existence, the State of Pakistan faced a daunting challenge of establishing a true democratic polity based on constitutional supremacy, rule of law and equity. The long military rules-backed by foreign masters-and in between the experiments of 'controlled democracy' denied the people of Pakistan their sovereign right of self-governance, for which a long struggle was waged to secure independence from the British raj. We did get a 'homeland' on August 14, 1947, but failed to make it 'free land' where the will of the people rules and their rights are respected and protected. The challenge to restore people's rule was, nonetheless, taken up by anti-establishment forces since 1947 but vested interest with the help of foreign masters foiled all their efforts-in the process we lost a part of homeland and many leaders, political workers and social activists. The dictatorial rules muzzled all the state organs-especially judiciary, that became an approving arm for many unconstitutional rules. However, the defiance that started on March 9, 2007, was a starting point and March 16, 2009, proved to be a culmination of the journey-from denial to freedom, hope for an era of independent judiciary and rule of law.

The people will now have to guard their great achievement. The events of March 15, 2009 to March 18, 2009 from the resisting and defying the naked use of power by the government to ultimate victory of masses and issuance of notification of restitution of Chief Justice of Pakistan and others, testify the valiant struggle waged by all segments of society, most notably by lawyers, media, social and political activists. These forces in future will have to act as a watchdog to ensure that judiciary plays its role within the constitutionally-defined limits and people get their rights. Judiciary should be free from all external pressures including the so-called street power to perform its duties strictly in accordance with law.

Our history is marred by anti-people and autocratic rules-both military and civilian alike - which were most of the time welcomed by the political elite. Besides various socio-politico-economic factors behind the failure to establish a sustainable democracy and responsible rule, the role of judiciary was subjected to severe criticism for validating coups d'etat. Like all others institutions and organs, judiciary in the post-independence period suffered due to weak democratic traditions, fight between economic vested interests, rivalry of influential politicians and a bitter power struggle between the landowner cliques and civil-military bureaucracy. If the press and nation rise and fall together, the same is true for judiciary. No institution or organ of the State exists or works in isolation from socio-economic and political conditions. It is thus not something unusual that during the last 62 years, judiciary also got divided on political lines when deciding important cases, especially when legitimacy of supra-constitutional takeovers disrupting the democratic process was called in question.

November 3, 2007 was a unique day when a dictator imposed judiciary-specific martial law - this time the victims were not politicians but the judges. In this backdrop, the issue of restitution of judges assumed great importance as it was to determine whether as a nation we would progress or retard. After much resistance by the Co-chairman of the ruling party and renunciations of written agreements, it was finally conceded by him that illegally removed judges, in fact, never ceased as judges. In reality, the question was not that of mere reinstatement of a few judges but restoring of status quo ante existing on November 2, 2007-undoing unlawful acts of Pervez Musharraf.

In post-March 16, 2009, scenario, the onus is on the Parliament to undo all the actions taken by Musharraf on November 3, 2007, as well as to remove all the distortions made in the Constitution of Pakistan since 1973. If fact, the time is now ripe to enter into a new social contract amongst all the federating units of Pakistan by thoroughly revisiting all the provisions of the Constitution and making them acceptable to everyone in the changed circumstances. Political consensus through deliberations and debates inside and outside the Parliament is the need of the hour. It is the only way to address the challenging issues of terrorism, regional insurgencies, poverty and growing economic inequalities.

Needless to say that the higher judiciary should also play its vital role of curtailment of arbitrary exercise of powers by any organ of the State, including itself. It must protect the fundamental rights of citizens under all circumstances as was done in a number of cases e.g Sabir Shah vs Federation of Pakistan (PLD 1994 SC 738), Mohammad Nawaz Sharif sv Federation of Pakistan (PLD 1993 SC 473), Federat ion of Pakistan vs Aftab Ahmad Sherpao (PLD 1992 SC 723), Ahmad Tariq Rahim vs Federation of Pakistan (PLD 1992 SC 646), Hakim Khan vs Government of Pakistan (PLD 1992 SC 595), Federation of Pakistan vs Mohammad Saifullah Khan (PLD 1989 SC 166) and Benazir Bhutto vs Federation of Pakistan (PLD 1988 SC 416).

The critics of higher judiciary of Pakistan should also realise that it is the people's will and power that alone forces the barrel of gun to renounce unlawful rule. Nowhere in the world has this task ever been performed by the judiciary. It is basically a political question and not a legal issue. Even if judiciary declares a coup detat illegal (as was done by seven-member bench of apex court on November 3, 2007, how can it force the usurper to abdicate power? Judiciary has no power (physical) to get its order implemented by force. The responsibility for failure of political leadership in Pakistan to counter intervention of civil-military bureaucracy cannot be shifted to the judiciary. Only reliance on people's power can avert unconstitutional rule-the politicians must have learnt this lesson on March 16, 2009.

The effectiveness of people's power has been proved-historic struggle waged by the legal fraternity, supported by political parties and members of civil society has won victory for all. It was all due to masses of Pakistan that the periods from March 9, 2007 to July 20, 2007, from November 3, 2007 to March 16, 2009 have become landmarks in our legal and political history. The second restoration of the Chief Justice of Pakistan on March 22, 2009 which is not triumph for an individual but a victory for justice is a first step towards revival of true democratic rule and independence of judiciary in Pakistan.

In the wake of this historic day, it is now the duty of all political parties, intelligentsia, media and representatives of civic society to act actively and responsibly to work towards revival of true democracy and constitutional rule in the country. Instead of entering into polemics and rhetoric, they should strive to evolve a national consensus on a one-point agenda i.e. supremacy of constitution and independence of judiciary.

It is time that through national consensus and reconciliation we establish a democratic rule, which is not possible without a free and independent judiciary. Political turmoil, social unrest and violence are the direct result of undemocratic rule and lack of dispensation of justice.