What is wrong with our judiciary? By: Imran Kureshi

In the darkest days of dictatorship, because of the previous role of some courageous judges, their respected and somewhat inviolable positions, the public has always considered the judiciary as a ray of hope

Primarily what is wrong with our judiciary is that apparently it is corrupt. No! This is not a jaundiced personal opinion; this is according to the rating of Transparency International. Among the primary 10 institutions in the country previously, the judiciary was very low in the ‘corruption’ ratings. In 2008 and 2009, it rocketed up to number three, in 2010, it was number six and in 2011, it was number four. Such an increase in corruption is understandable because of the inadequacy of the judicial accountability regime.. A vocal section of the public and media influence public opinion considerably, and in the eyes of this section, the judiciary with its newfound independence can do no wrong. It is about time somebody revealed the other side of the picture. In this country, it has always been a problem of who will check the corruption of those who are checking corruption.

Of course, an independent judiciary is important for a democratic setup. However, the beauty is that with a free media (despite its imperfections) and a genuine democratic setup, the judiciary automatically gains greater independence in a more meaningful manner; whereas the current ‘judicial activism’ is only serving to appear to show the judiciary as the aggressor in an inter-institution conflict, adversely affecting the democratic process and polarising opinion.

To better understand the problems in our judiciary, we should briefly analyse the history of our judiciary. When this country was formed, immediately the bureaucracy, administration and tacitly, the military, assumed powers majorly. Mind you, in no way do I intend to discredit the immense and pioneering good these institutions did in establishing this country and even afterwards. However, with the death of the Quaid-e-Azam, the dream of a parliamentary system disintegrated. The ‘services’ were in place with the apparatus (if not the directions) and a newly invented Islamic ideology for running the country. In any case, any democratic system would have meant handing over power to the leaders of East Pakistan because they had the majority population but that was unacceptable to the West Pakistan ruling elite.

There was a weak shuffling for power between the politicians and institutions and it can be said that with the assassination of Liaquat Ali Khan, the political elements were rendered sufficiently ineffective. During this time, a perception was engendered that the politicians represented chaos and corruption and the ‘institutions’ represented stability and authority. This perception is the important point I want to make in this article. This perception received a further boost from a quasi-Islamic predilection that a benevolent, strong and authoritarian government was more in accordance with religious tenets and that democracy was a westernised concept.

Anyway, in the ethos of the times, when Justice Munir used the Kelsen doctrine to legalise Ghulam Mohammad’s dissolution of the constituent assembly, he was genuinely acting according to the dictates of his conscience to support order and law. This perception of mistrust of politicians in power gained new dimensions and greater, desperate conviction because of several of Mr Bhutto’s radical reforms. Several sections of the elite and even their following generations have never forgiven him for these measures. The establishment and all the dictatorial regimes have always fostered this perception of distrust of and the need to control politicians. Nawaz Sharif was acceptable to people with this perception until he emerged as a powerful, popular democratic leader in his own right and of course after the military turned against him when he meddled too much in the appointment of the COAS (Musharraf would have been the second COAS to be changed in two years).

There is not enough space here to review the progress and effect of the major cases involving the independence of the judiciary and the role of oaths under the PCO, but I must mention the names of courageous judges like Kayani, Cornelius, Fakhrudin Ebrahim, Hamoodur Rehman, Yaqub Ali and many more. They believed in principled and fair jurisprudence and the rights of the people. Suffice it to say the judiciary was constrained to become more subservient in Ayub Khan’s era and a tool used against politicians and dissenters; and in Zia’s time, it became even more pliant and the army was involved in politics to a greater extent. The fact is that there is very little even a dictator can do about a sitting judge of the superior courts. He has to serve his term and only drastic action and most important, disunity among the judges can remove him. Zia tried to woo the judiciary by appointing the chief justices (CJs) of the provincial courts as martial law administrators and incidentally thereby he elevated Maulvi Mushtaq (whom Bhutto had superseded) to CJ of the Lahore High Court. Also, he declared Bhutto’s actions regarding the judiciary illegal and thereby removed Justice Yaqub Ali as CJP and appointed Anwarul Haq (whom Bhutto had superseded) in his place. We all know the role of these two judges. Thus in the darkest days of dictatorship because of the previous role of some courageous judges, their respected and somewhat inviolable positions and the lofty principles they represent, the public has always considered the judiciary as a ray of hope.

It is important here to mention the ISI. It was originally involved in politics by Bhutto in 1973 to counter the Baloch insurgency. Under Zia, it became stronger with the jihadi movement and the political cell gained importance. Whether this is actually a section, or just a lobby or an amorphous body associated with ISI is pure speculation. However, it became an almost self-financed, practically autonomous, ideologically motivated entity that now even has tentacles in the ‘free media’. Nowadays almost every political conspiracy theory here involves this body and I might add, many of these ‘absurd’ theories have been proved true. Furthermore, after the Zia regime, the perception of the need to control politicians mentioned above gained currency in army echelons. Several COASs have tried to divest the army of involvement in politics: Generals Kakar, Janjua, Karamat in the past, and it is said that General Kayani is treading a tricky path in this regard.

(To be continued)

The writer is a freelance contributor

Courtesy: Daily Times

http://www.dailytimes.com.pk/default.asp?page=20127\19\story_19-7-2012_pg3_5

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