In a bona fide democratic setup, the electoral process and rule of law ensure accountability of politicians and those who hold public offices. If elections do not bring rule of law (as mostly in Pakistan), it amounts to negation of democracy.

Favouritism, nepotism, despotism, repression, fascism, bigotry, totalitarianism, oppression, tyranny, denial of human rights, persecution of minorities and denial of access to justice, curbs on media freedom--all antonyms to democracy--have no room in a people’s rule. It is substance that matters and not mere a form--elections per se cannot guarantee a democratic polity or rule of law. Since abuse of powers can only be checked through a proactive and impartial judiciary, dispensation of justice is a sine qua non for democracy.

There is a consensus that our justice system needs fundamental reforms as it is not dispensing justice. What are the problems and how can these be fixed have been highlighted in a number of studies. The question is who will undertake reforms? The beneficiaries of the rotten system will obviously resist any positive change. Since the rich and mighty secure "relief" through influence or money power, they would never be interested in reforms. It is an undeniable fact that our legal apparatus favours and protects the rich and mighty-- Modernising justice delivery system, The News, March 25, 2012, Legal & Judicial Reforms in Pakistan, LUMS, January 2011 and Reforming Pakistan’s Criminal Justice System, Crisis Group, December 2010.

In Zardari-era (2008-13) party loyalists were appointed as judges of High Court--many of them were "passive" lawyers who had never been to courts for years. The same pattern was adopted by Nawaz Sharif in his three stints to power.

The reforms made in the 18th Constitutional Amendment to end "favourtism" in appointing judges irked the Supreme Court and it forced the Parliament to withdraw its oversight--it was a blatant encroachment over the highest legislature body which unfortunately succumbed to the pressure rather than resisting it. Parliament has even power to nullify any judgment of Supreme Court--see Article 165A of the Constitution--but it failed to exercise it in the case of Article 175A amended to appease Supreme Court vide 19th Constitutional Amendment.

In all the courts, thousands of cases, the number of which increases with every passing day, are pending. The courts are working below the sanctioned strength and in outdated fashion. Excessive and unnecessary litigation is symptomatic of various ills in society. Instead of removing the causes of litigation, only symptoms are being cured by increasing the number of judges, chambers and giving more room to lawyers to fleece the helpless citizens. The number of judges and courts even if increased many hundred times would not end the real malady--lack of socio-economic justice in society and good governance. These alone can stem the rising tide of litigation.

A ray of hope for a just Pakistan that emerged on March 9, 2007 by utterance of ‘no’ to a mighty dictator by the head of historically a timid and pro-establishment judiciary has now completely faded. The main reason for disappointment is not solely the realisation that an individual, however mighty and well-meaning, does not hold a magic wand to solve all the socio-political problems of the masses. Emerging despair is due to visible compromise on pardoning corrupt politicians and civil-military bureaucrats.

The ruling classes have successfully countered the mass upsurge of March 9, 2009 by joining hands--Zardari and Sharifs and many others facing serious allegation of looting national wealth have secured  "immunity" from accountability through "judicial endorsement." Once again, the courts have declared majority of them "honest" and "worthy" of contesting elections.

For restoration of Chief Justice of Pakistan (CJP) and other judges ousted by Pervez Musharraf, the masses demonstrated their real street power that threatened the ruling classes--military-civil bureaucratic complex, corrupt politicians and unscrupulous businessmen. They skillfully hijacked the movement by becoming its "torchbearers" (sic). The courts also were quick to reverse all "adverse" orders against the Sharifs and others.

The evidence of great "rapprochement" with establishment that really matters in our affairs became explicitly visible when Iftikhar Muhammad Chaudhry, then Chief Justice of Pakistan, met late Richard Holbrooke on June 5, 2009. This meeting raised many eyebrows as well as questions relating to independence of judiciary and rule of law. Undoubtedly, Holbrooke’s meeting with CJP was lamentable interference in our internal affairs. He should have not been allowed by the CJP to meet him as 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 a well-known maxim that justice should not only be done but should be seen to have been done. The petitioners who were aggrieved of alleged actions of USA would certainly have been privy to the meeting--even if it was meant to "discuss judicial reforms only" as per official version of the Apex Court. We indulge in lip-servicing about rule of law, but nobody even talk about such blatant interferences by USA and others in our internal matters.

In the aftermath of 9/11, kidnapping and torturing of people by CIA and other "special Dick Cheney-controlled squads" is an open secret now--Pakistan is one of the countries affected by such actions. If somebody has violated law of the land or the international law, he should be punished through due process of law as ordained in Article 10A of the Constitution. How can one endorse any violation of law and human rights--universally accepted--by USA or anybody?

In the name of fighting "war against terrorism" (sic) can USA be given complete immunity from all domestic laws and international treaties? The USA in the first place should hand over to Pakistan all the missing persons who are in its custody along with evidence against them. After that they may request for speedy trial against them.

Nawaz Sharif, like his predecessor Zardari, may keep on toeing the line of USA. It is a political decision of an elected government, which will certainly have consequences for the entire nation. American officials may meet our political figures as and when they feel like, but what business do they have in having closed door meetings with the heads of armed forces and judiciary.

It needs no debate or deliberation that 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.

We must banish with full force any kind of interference in the judicial system and must give the judges every possible facility to perform their functions. But the judiciary must perform its duties and judges need to deliver what law requires them. Administration and dispensation of justice in Pakistan has been a complete failure and, therefore, democracy has never taken its roots.

It is high time that civil society, media and intelligentsia raise a collective voice for complete judicial reforms as it is vital for true and sustainable democracy and establishment of rule of law.