Time for ‘judicial doctrine’

Pakistan's democratic history would have been different had our judiciary preferred the rule of law over martial law from 1947 to 2007. But, post-2007, the judiciary seems different, strong and also independent, whether one accepts this fact or not. All this became possible because of the joint struggle of all stakeholders, from judges to lawyers, from politicians to journalists, from civil society to common man.

The struggle has buried the black laws like the ‘doctrine of necessity' and provisional constitutional order (PCO). Now, it is high time for the Executive, Parliament and Judiciary to complement each other, and the media as a fourth pillar of the state, play the role of media watchdog and not like a stakeholder. The path of confrontation among the institutions would be disastrous for democracy.

Therefore, there is a need for a 'Judicial Doctrine' to protect all democratic institutions under the Constitution and those who abrogate, subvert or even put Constitution in abeyance be declared as ‘traitor' as defined by the Constitution.

Even a slight hint for the revival of doctrine of necessity, which could lead to postponement of elections, either in the name of delimitation of constituencies or accountability, could be harmful. Gone are the days when politicians for their petty interest raised slogans like, 'First accountability then elections’. Only dictator's legacies raised such slogans or made such demands.

This is an era of a ‘New Judicial Order’, which was born on March 9, 2007, and today, it is 10 years old and now in the process of rebuilding itself and trying to correct its historic wrong of the past. Democracy cannot survive without an independent judiciary and vice versa.

Irrespective of difference of opinion about the role of former chief justice Iftikhar Muhammad Chaudhry, the facts remains that no one could denied his historic ‘NO' before a powerful military dictator, which gave a new life to otherwise dead political struggle.

Some of those who at that time were on the side of the dictator, later joined rank and file of leaders like Nawaz Sharif and Imran Khan, without any regret of their past. Tomorrow, they would not even hesitate in changing their loyalties. Thus, political parties also need to formulate a collective, ‘Democratic Doctrine’, to defend all four pillars of the state.

‘Judicial doctrine’ should be based on safeguarding the judicial institutions, democracy and the rule of law in the country and a truly define formula of across the board accountability. The Parliament can provide supplement support throughstrong legislation to protect and ensure independence of judiciary.

Politicians or rulers come and go, but it is important that the basic principles of democracy i.e. government of the people, by the people and for the people must be respected. We often ignore these principles of democracy after elections.

Across-the-board accountability is the essence of true democracy, which is perhaps a big challenge for all institutions. We are still far away from such concepts and so far it is only one-way traffic, though at times we do hear of cases and inquiries of high profile cases other than civilians.

Pakistan's political history would have also been different had our political leadership showed political maturity and not defended dictators for their vested interests. If Zulfikar Ali Bhutto's trial was a judicial murder, the politicians also provided support to dictators to send a popular leader to gallows. This is a historic fact of history.

But, like judiciary, politicians too, have learnt from their wrongs and tried to correct them through amendments like the 18th Amendment, under which the Public Accounts Committee is headed by the opposition leader.

In the last 10 years of ‘independence’ of judiciary, political or civilian leadership felt that judiciary often interfered in the domain of executive. But, the question is why, if at all it has interfered. Had the executive played its role and fulfilled its constitutional obligations. Why we conducted census only after the Supreme Court passed an order for it? Why local bodies elections on SC order? Why Karachi operation after 2011 ‘Karachi Badamni' case.

If one goes through high profile cases and the SC verdicts, which had political implications as well, one finds most of it in favour of democratic values and the rule of law.

One can have difference of opinion over the extensive use of suo-motu or Article 184 (3), but I wish our successive governments of the PPP and the PML-N could have taken ‘political suo-motu’ and provided relief to people, setting some good examples of good governance.

Pakistan's political leadership needs to understand that judicial activism becomes popular because executive had not played its due role. Is it not a shame for civilian governments that census and local bodies elections, which were constitutional requirements, were held only after the Supreme Court took notice and issued directives.

Prior to 2007, one could not have even imagined the cases of missing persons would have been taken so seriously as taken up during former CJP Justice (retd) Iftikhar Muhammad Chaudhry's time and even today.

Similarly, one also expects the same in the trial of former president, General (retd) Pervez Musharraf and in the Asghar Khan case. Judiciary must take the case of Musharraf as seriously as it has taken up the case of Memogate.

If a three-time elected prime minister, along with his daughter, regularly attending the court proceedings and not even getting relief to see his ailing wife, why can't a retired General be brought back to Pakistan, with the provision of security of his satisfaction. Now, a new bench would be constituted after one judge pulled himself out of the bench after objection from Musharraf's lawyer.

Two prime ministers, Nawaz Sharif and Yusuf Raza Gilani, were sent packing and disqualified from contesting elections. On the other hand, Musharraf, who was disqualified from contesting elections for life, is still the head of his own political party, while Nawaz Sharif was barred from holding that office.

From former chief justice Iftikhar Muhammad Chaudhry to incumbent CJP Justice Mian Saqib Nisar, judiciary by and large has not only defended democratic values but also took up cases which, in the past, were just a myth, like the cases of missing persons and even Asghar Khan case. The latter one still needs to be completed, but at least, judiciary had declared 1990 elections as rigged and that money was distributed and taken. It is hoped that the SC will take up this case and reach the final conclusion.

The trial of Gen Pervez Musharraf under Article 6 is also a big test and challenge for the judiciary, particularly when civilian leaders are facing trial and are appearing in the courts on regular basis.

As a journalist and as a student of politics, I had attended many case hearings during all these years and also witnessed some of the trials in pre-independent judiciary and found a vast difference in approach and conduct in the trial as well.

It is true that from Maulvi Tamizuddin to Zulfikar Ali Bhutto's trial, from Begum Nusarat Bhutto to Zafar Ali Shah case, there were hardly any verdicts which defended and protected democracy. But, even in those dark eras, Asma Jillani case proved to be a ray of hope. Sadly, it missed the opportunity of going into history as the protector of democracy, instead, not only justified martial law in July 1977, but also was accused of the judicial murder of Pakistan's most popular leader, Zulfikar Ali Bhutto.

Mian Muhammad Nawaz Sharif rightly claimed that he got this judiciary restored at a time when Mr Zardari had refused for his own reasons. The PPP lost the moral and political authority when it was finally restored in 2009. Only Mian Sahib knows what has gone wrong. He now sees 2018 elections as a referendum in his favour or against his disqualification.

The SC has also taken up the pending case of Memogate at a time when Nawaz Sharif regrets his past decision to become party to the case while he was the opposition leader.

If today former prime minister Nawaz Sharif is critical about its judgement against him in Panama case and his disqualification, former president Asif Ali Zardari and his party were also not happy with its role during the last PPP government. The PPP was also not happy with the disqualification of former PM Yusuf Raza Gilani and some cases in Sindh. If Sharif and the PML-N were happy with the role of judiciary, the PPP leaders also have a right to be happy over the disqualification of Sharif and what he is facing in NAB cases today.

One can only hope that the superior judiciary would reform itself and maintain its independent role irrespective of those in power. It is always better if judges speak through their judgments. If all institutions work in the framework of the Constitution and complement each other in the process, there would be no need for any, meeting between the institutional heads.  

The writer is a senior analyst and columnist of Geo, The News and Jang. Twitter: @MazharAbbasGEO