Reasons for optimism

The writer is a lawyer based in Islamabad.

We've had a lot of bad news lately. There is a war raging within Pakistan, which is costing us valuable lives of soldiers, policemen and citizens alike. The insurgency and the counter-insurgency have engendered a humanitarian crisis that will only get aggravated as the military operation expands into FATA. The militants are retaliating, as expected, by mounting terror attacks across Pakistan. The economy is shrinking, we are told. The worsening security situation is anathema to foreign direct investment. And the managers of our economy seem to have no profound ideas on how to get us out of the woods. The fires of hate and resentment continue to rage across Balochistan. And now Karachi has begun to simmer once again. So Pakistan's predicament is serious no doubt. But must we be perpetually despondent? Are we going to try and scale over the precipice, or throw our hands up to ensure that prophesies of prophets of doom come true?

Without belittling the challenges that confront us, there is a need to take cognizance of the glimmers of hope within our state and society. Let us start with the successful civil society movement that led to the restoration of our legitimately appointed judges. This movement succeeded because Chief Justice Iftikhar Chaudhary and other deposed judges remained steadfast, the lawyers led by men of integrity and ability (especially Aitzaz Ahsan and Munir A Malik) remained resolute, the members of the civil society remained dauntless, the media emphatically supported the cause of justice, and Nawaz Sharif led his party unhesitatingly to march for the restoration of judges. But all of this only happened because a majority of the average citizens of this country rallied behind the idea that what we need most of all in this country is justice to be delivered fairly to each citizen irrespective of his station in the society, by a judiciary that is independent of the executive and faithfully

defends the values and principles enshrined in our Constitution.

The success of the justice movement is an epochal event that has the potential of reordering the legal, political and social ethos of Pakistan. The idea that every citizen owes allegiance to the letter and spirit of the Constitution under all circumstances and is afforded in return the rights and liberties promised by our fundamental law, if entrenched and implemented effectively, promises to transform our state and society. What the Constitution promises to citizens is equality and fairness. The justice movement communicated to the masses that such promise would remain unrealized if the executive had the judiciary in its clutches. The idea resonated with ordinary people who stood up with a desire to reconstitute the judicial branch of the government as a neutral arbiter of the law strong enough to establish a level-playing field between citizens who were otherwise unequal in social and economic terms. The popularity of the movement encouraged political parties to endorse and support its goals. And PML-N has undoubtedly gained politically due to its foresight to stand on the right side of history.

The support for the movement sprouted from mass disenchantment with a judicial and political system bereft of higher moral and ethical values. And its success established a new precedent that when enough ordinary people unite and rise up in pursuit of a higher moral cause, they can make miracles happen. The restitution of legitimate judges has laid a strong foundation for reconstruction of a justice system that is braced by undisputed constitutional principles and moral values. The challenge of building an edifice that crystallizes the hopes and dreams of the ordinary people that brought about this miracle is now before us. And that the Supreme Court as well as the wider legal fraternity is aware of this challenge is a reason for optimism.

The new judicial policy effective since June has declared 2009 as the year for justice at the grassroots level and vows to (i) dispose a majority of the pending cases within one year, and (ii) eliminate corruption from the judicial branch of the state. The first policy-making initiative of the reconstituted judiciary has elected to concentrate on district courts – the interface between ordinary citizens and the system of justice. The two-pronged approach to reform focuses on the integrity and efficiency of the justice system: the policy warns that there will be zero-tolerance for the menace of corruption, and courts have been instructed to dispose of cases within strict time-lines.

The courts will need to remain mindful that a system that diminishes the right of parties to be patiently heard by a court might lead to speedy disposal of cases but will hardly be judicious and thus the imperative of balancing the requirements of efficiency and fairness. Likewise, the superior courts will also need to put in place a monitoring system to ensure that the targets set by the judicial policy are actually met and the eagerness and sense of urgency to introduce genuine reform doesn't wane overtime as usually happens. Much needs to be done in the justice sector to rise up to people's expectations. While the proof of the pudding is in the eating the broad focus of the reconstituted Supreme Court seems to be on the dot, which is cause for optimism.

Another cause of celebration is that last week Justice Jawad Khawaja was appointed as judge of the Supreme Court. Justice Khawaja had resigned as judge of the Lahore High Court after General Musharraf suspended and maltreated Chief Justice Iftikhar Chaudhary on March 9, 2007. He has the distinction of probably being the only holder of a constitutional position who quit office and its pomp (with many years of service remaining) to abide by the voice of his conscience and underline the need for members of the judiciary to stand up and protect the independence of their institution. By resigning his tenure at a time when his personal position was not at stake, he set a high moral tone for the rule of law movement during its very nascent phase and entrenched the public expectation that conduct of judges must be driven by principle and not personal ambition. Appointment of Justice Khawaja to the reconstituted Supreme Court will raise its moral authority and help establish a much required institutional norm of rewarding judicial officers most of all for their integrity and independence.

Reasons for optimism are not limited to initiation of reform in the justice sector alone. The moral and ethical values that fuelled the rule of law movement are also beginning to inform our political culture. Sherry Rehman caused a dent in our prevailing political culture of unscrupulous subservience with her resignation from the cabinet to protest the PPP government's heavy-handed policy of attempting to muffle the media during the decisive phase of the rule of law movement. The PML-N's decision to seek the resignation of its MNA, Haji Pervez Khan, over the examination scandal (where his nephew was caught taking an intermediate exam on his behalf) was a repudiation of our culture of partiality, nepotism and cronyism where personal loyalty and contacts trump principles and accountability (as evidenced by the Farah Dogar case). Likewise the insistence of Customs officials at the Lahore airport to check the luggage of passengers being escorted by the Punjab prison minister Chaudhary Abdul Ghafoor was commendable and so was the initiative of the Punjab government to hold an inquiry into the matter. Such examples will nurture a culture of accountability and reinforce the need for personal integrity within our political culture.

While we are some distance away from fixing our civil-military imbalance and enforcing the principle of effective civilian control of the military, as laid down in the Constitution, the willingness of our current military leadership to act on the instruction of the elected civilian government as well as its demeanour while doing so is promising. The courage being demonstrated by our soldiers in fighting throat-slitting terror-mongers, the resolve and valour of our policemen in carrying out security duties in such perilous times, and the abundant altruism being exhibited by citizens in helping out the IDPs are all grounds for optimism. And the foremost reason for hope is that there seems to be evolving a consensus across Pakistan that we will not put up with religious obscurantism any longer.

We need to develop further a spirit of political activism coupled with the audacious belief in our ability to determine our own fate, which paid huge dividends during the rule of law movement. And we must also engender a culture of accountability where we celebrate and reward actions and not personalities (so we can criticize the chief justice for his decision to meet Richard Holbrook, or Nawaz Sharif for not sharing with the nation the whole truth regarding his exile and presidential pardon, while not belittling their enormous contribution to the rule of law movement). There is a lot more that we need to do to realize our true potential as an industrious people. But despite all challenges confronting us and the contradictions and confusions that mar this polity, we are certainly not a nation teetering at the brink of destruction.



Email: sattar@post.harvard.edu