Great hope for a democratic Pakistan, emerged on March 9, 2007 by the utterance of "no" to a dictator by the head of historically timid and pro-establishment judiciary, is now fast fading. Once again, serious doubts are being cast about the existence of an independent judiciary.
Compromise, reached on 17 February 2010 on the names of judges in the wake of an over two-hour meeting between Chief Justice of Pakistan and the Prime Minister, has raised many eyebrows. Majority believes that such meetings should not take place under the well-established rule of judicial proprietary. The word "consultation" as used in Article 177 read with Article 260 of the Constitution, according to them, cannot be construed as "negotiating". They claim that the Prime Minister, being one of the "accused", should not have invited at his place the head of the apex court a day prior to the hearing of the case.
It is now well-established that the ruling classes have successfully countered the spirit of mass upsurge of March 9, 2009 by joining hands - now Zardari, Gilani, Sharifs and many others have secured full "protection" of the "law". Once again, they have obtained the legal sanction of being worthy of "ruling" us - none of them pays his tax honestly! For two restorations of the Chief Justice of Pakistan, the masses demonstrated their street power that certainly proved very threatening to the ruling trio - civil-military bureaucratic complex, corrupt politicians and unscrupulous businessmen.
The trio decided to hijack the movement and ostensibly gave its leadership to the reincarnated "Lion of Punjab" (first was Mustafa Khar). He obviously accepted it, amongst other reasons, for personal gains as well - soon after the "deal" his stance on drone attacks changed and "affection" for Richard Holbrooke and the US Ambassador in Pakistan surfaced. The courts also soon reversed all the "adverse" orders against the Sharifs.
The evidence of great "rapprochement" amongst ruling classes emerged after the meeting of the Chief Justice with Richard Holbrooke on June 5, 2009. This meeting raised many questions relating to independence of judiciary and rule of law. Richard Holbrooke - breaking new records of interventions in our internal affairs - got access to meet the Chief Justice when many cases involving alleged US atrocities - especially enigma of missing persons and drone attacks with the connivance of the government - were sub judice.
It is well-known maxim that justice should not only be done, but should be seen to have been done. It necessarily implies that the government functionaries, both local and foreigners, should not be allowed by the judges to meet them, otherwise it would shatter the faith of the people in due process of law.
The aggrieved petitioners of missing persons were highly disturbed by certain alleged actions of the US in this connection, with specific reference to the meeting of the Chief Justice with Richard Holbrooke even though, as per official version of the apex court, it was meant to "discuss judicial reforms only".
The meetings with Prime Minister at a dinner and then in the Prime Minister House by the Chief Justice, many argue, are "administrative" for the purpose of "consultation" under the supreme law of the land and should not be seen with concern. Previously as well, the Supreme Court proved that the issue of the missing persons was not diluted just because of the meeting between Richard Holbrooke and the Chief Justice.
Critics of the recent meeting between two heads of the state organs on the issue of selection of judges should not be impulsive or impatient. They must wait for some time to see whether this meeting casts any influence or not on the adjudication of the cases where the government is a party. As a rule, however, they are correct insofar as that such meetings should be avoided. But this time, circumstances were exceptional and the purpose was "to avert a clash between two organs of the state" - to this end it was a great success as the government surrendered completely and unconditionally.
The appointment of a particular person as ad hoc judge at Supreme Court, however, is seen as an issue of ego and not merit or need - the hegemony of judiciary over executive is as bad as interference of the latter in the affairs of the former.
It needs no debate or deliberation that for establishing an independent judiciary the pre-requisite is complete insulation of the institution from internal or external political influence. The issue of selection of judges should not be controversial at all - it cannot be left at the mere discretion of one person, who may be head of the judicial branch of the state. The judicial organ of the state has to act as custodian of the rights of the people under the Constitution and ensure rule of law in society.
Rule of law embraces at least three principles. The first principle is that the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary and political power.
The second principle requires the creation and maintenance of an actual order of positive laws, which preserves and embodies the more general principle of normative order. The third principle requires that the relationship between the state and the individual be regulated by law. If judges are not selected in a transparent manner, if they are not eligible for the post, if they are not unbiased, how can rule of law be ensured?
In a bona fide democratic set-up, the electoral process ensures dominance of the people over those who hold political offices. If elections lead to an authoritarian ruler (as was the case in 2002 in Pakistan), the result will be a negation of democracy. Despotism, repression, fascism, bigotry, totalitarianism, oppression, tyranny, denial of human rights and free access to justice, curbs on media freedom - all antonyms to democracy - have no room in people's rule. It is the substance that matters and not the form.
Since authoritarian rule can only be checked through a strong and independent judiciary, dispensation of justice is a sine qua non for democracy in its true sense. Judiciary thus must keep its distance from other organs of State.
It is unfortunate and disturbing that in Pakistan, no government wants judiciary to work independently, but, at the same time, it is an undeniable fact that this institution has by and large protected the interest of the ruling classes. Majority of the judges are selected on purely political grounds or personal affiliations or likings - interested candidates run from pillar to post to bag this constitutional post. Notifications of 17/18 February 2010, appointing "ad hoc judges" at Lahore and Karachi High Courts - like all previous such notifications - are against the Constitution.
Appointment of judges on temporary basis when permanent seats are available is itself a gross violation of the rule of law and independence of judiciary. This practice is going on unabated for the last many years-during tenure of all the governments - and nobody has ever raised any voice against it. The unwanted practice of appointing additional judges in high courts "for such a period as determined by the President, not exceeding the period prescribed by law" should be discontinued.
It needs serious consideration of all - the issue is vital relating to dispensation of justice in the country. No doubt, this is a most undesirable exercise as additional judges are members of the superior judiciary and their appointment on temporary basis poses a threat to the independence of the judiciary. It undermines the faith of public at large in dispensation of justice, as a person working on probation as judge remains cautious in making orders that may displease the persons, who have a say in his confirmation. Appointment on temporary basis deprives a judge from dispensing justice fearlessly and with an independent mind. There is no such concept in the United Kingdom from where we have inherited the present legal system; or elsewhere in any democratic dispensation.
All of us must banish with full force all kinds of interferences in judicial matters by the executive or any other authority, but, at the same time, a public campaign should be launched for a transparent system of selection of judges of higher courts by amending the Constitution. There should be an independent commission, headed by a retired judge of the Supreme Court and representatives from various segments of society, for recommending the names of judges. The recommendations of this commission should be presented before a non-partisan House Select Committee that should hold public hearings of each and every candidate. After approval by the House Committee, the judges should be appointed.
Administration and dispensation of justice in Pakistan has been a complete failure preventing democracy from taking a foothold. The time has come that civil society, media and intelligentsia should raise a collective voice for an independent judiciary and resist all forces that are creating impediments for the establishment and working of an effective and competent judicial apparatus.
{The writers are members of visiting faculty of Lahore University of Management Sciences (LUMS).