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“All over the world, members of the judiciary think twice before encroaching on the powers of the government. In Pakistan’s case, judicial activism became a case of overreach. It was practically a coup. The ex-chief of the Supreme Court saw no limits to his authority. His ‘road-show campaign’ had definitely taken on the feel of a political movement. And instead of keeping a distance from the political parties, he used their help and funds for his restoration drive.”

By NOSHEEN SAEED

ISLAMABAD, Pakistan – “Freedom cannot exist without discipline, self-discipline, and rights cannot exist without duties. Those who do not observe their duties do not deserve their rights.” – Oriana Fallaci

All over the world constitutions are drafted for the sole reason of balancing power between various competing forces. Constitutions alone do not guarantee peace and stability.

The constitution clearly demarches the powers of the three organs; the legislature makes the laws, the executive enforces them and the judiciary interprets them. For all three to function harmoniously its imperative not to breach the thin line that divides their respective roles.

All over the world, interventions by the judiciary in issues that come under the exclusive domain of the executive are always handled with restraint.

In Pakistan’s case judicial activism to review executive decisions became a case of overreach. It was practically a takeover of the functions of the other organs. The branch of government charged with maintaining the sanctity of the Constitution no longer felt bound by the constraints of that same Constitution.

The Supreme Court judges recognized no limits on their authority; they were legislating relentlessly passing orders in the nature of legislation against government decisions and embarrassing the government especially its intelligence agencies by holding them accountable for actions that were beyond the reach of law and of national security.

When the “guardians of the constitution” start summoning government officials, chiefs of the intelligence agencies, start delivering punishments to police officials for merely doing their duty and humiliating senior officials for following the orders of the executive, in doing so the honorable judges were transgressing the jurisdiction laid down in the constitution.

The question then posed was who will guard the guardians? Secondly, judges are supposed to speak through their judgments when sitting in court and if they make statements which have populist tenor then they send wrong signals which raise tensions causing problems. Thirdly when issues of such emergency as the election of the President and his eligibility is under debate and the issue is of urgency, instead of deciding the case promptly if the court takes it leisurely, it again sends wrong indications, raising doubts and distrust between the judiciary and the executive. As a result of such actions the confrontation between the two becomes inevitable and the outcome is what we have seen happen in the county– a predictable confrontation.

Perhaps the most damaging aspect of the confrontation was that by watching the steady erosion of government by the consent of an “imperial judiciary”, society had broken down to the point where ordinary citizens decided to take law into their own hands and were emboldened to the extent of challenging the writ of the state.

Even lawbreakers thought they had stopped living in a nation of laws, and instead had ended up in a rule with no center of authority left and relief could be obtained in the name of public spirited litigation from the courts only.

Resultantly, the Supreme Court was flooded with writs challenging the government and seeking assistance from the courts, making the functions of the other pillars of the state utterly superfluous. Lack of confidence in the government and rising expectations from the judiciary exclusively led to political instability, polarization, economic destabilization and break down of law and order within the country, paving the way for violence, extremism, terrorism and anarchy to thrive in society.

PPP Co-chairman Asif Zardari has rightly remarked that Justice Chaudhry had politicized himself overtly and ruined his case as an advocate for an independent judiciary.

The deposed C J became a highly controversial figure as he toured the country to influence public opinion. His “road show campaign” had definitely taken on the feel of a political movement and instead of keeping a distance from the political parties he used their help and funds for his restoration drive. Saad Rafique has been awarded a ministry by Nawaz for assembling the crowds for Justice Chaudhry’s reception in Lahore.

Justice Chaudhry fell from grace when people heard lawyers using derogatory language against state institutions and he never once discouraged the lawyers from doing so.

When various bar councils canceled memberships of hundreds of lawyers for supporting the government’s views; when verbal and physical abuse of eminent lawyers like Naeem Bokhari, Waseem Sajjad, Khalid Ranja and spraying black paint on Ahmad Raza Kasuri’s face was highlighted; when the lawyers were unfolding their never ending agendas one after another and openly challenging the government, Justice Chaudhry considered such hooliganism “rule of law” and remained a silent spectator.

Unfortunately Justice Chaudhry remained anti-establishment and turned into a focal point for the opposition to Gen. Musharraf. Justice Chaudhry continued to play this role even after the Supreme Court gave him back his job on 20th July 2007. He was still out to settle scores in spite of the fact that the government with grace and dignity had accepted the Supreme Court’s decision of throwing out the Presidential reference.

It was time for Justice Chaudhry to show magnanimity of heart by remaining “impartial” for the larger interest of the country. Yet the PCO-ed Judge who earlier showed few signs of breaking with traditions or an independent streak and participated in Supreme Court sessions between 2000 and 2005 that validated Musharraf’s military takeover, the legal framework for his rule, and a constitutional amendment that gave Musharraf added powers and allowed him to keep his hold over the Army was out to not only dismiss General Musharraf “unceremoniously” but to also discredit the prestigious institution of Armed Forces by dismissing their Chief brusquely, not realizing that his move would have been disastrous, plunging the country into complete chaos, carnage and even civil war. There might have been another martial law and elections would have been light years away.

Just recently the former Chief Justice could not resist being led by lawyers supporting his reinstatement to the residence of a political figure, Mr. Asif Zardari, ignoring the code of conduct of judges and the supremacy of the parliament which has asked for a month’s time to solve the issue of the deposed judges.

By no standards can Justice Chaudhry be called an independent judge. In fact it won’t be wrong to say he has become a “string-puppet” in the hands of ambitious lawyers motivated by political aspirations of their own, who feel that lawyers alone can save the country by taking a lead role because people have lost faith in politics and politicians.

© Copyrighted Material. AhmedQuraishi.com.

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This entry was posted on Monday, April 21st, 2008 at 11:34 am under Pakistan, Political, Society and has been viewed 139 time(s). You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.