Triumph of law and reason
Comment By Babar Sattar: July 21, 2007
The reinstatement of Chief Justice Iftikhar Chaudhary by a full bench of the Supreme Court led by Justice Khalil-ur-Rehman Ramday is probably the most significant judicial decision in Pakistan’s history. It is particularly important in terms of its contribution to constitutional jurisprudence, in fighting for the independence of the judiciary by refusing to accept the encroachment by the executive over the judicial function, and in breathing a new life and hope into the withered soul of this nation.
Never before in the life of this nation did the Supreme Court decide a legal question of such enormous political consequence on the basis of principle as opposed to expediency at a time when such a decision challenged the entrenched status quo. Martial laws were intermittently declared illegal in Pakistan, but never while a dictator was still in power.
By declaring the reference of Gen Musharaf extra-legal, the Ramday court has refuted the cynical view in Pakistan that power will always trump the law. The decision of the Ramday court will have tremendous jurisprudential value for giving effect to the cherished elementary principles of our fundamental law. The short order makes at least three important points. One, in holding the petition of the chief justice – that challenged reference proceedings before the Supreme Judicial Council – maintainable unanimously, the Supreme Court reiterated the principle that the judicature has the final word on what the Constitution means and the Court will not shirk its responsibility to interpret the meaning and scope of law only because it affects the exercise of political power in the present.
Two, it also unanimously upheld the integrity of our constitutional structure of separation of powers by ruling that the head of the executive or the state can under no circumstances suspend the head of the judiciary and appoint a replacement at will. Accordingly, the orders of the government and the Supreme Judicial Council suspending the CJ and restraining him from performing judicial functions have been declared illegal, along with the appointments of Acting Chief Justices. And three, the presidential reference against the CJ has been declared illegal and thrown out by a 10-3 majority vote of the Ramday Court, thereby, putting to rest the judicial crisis that has engulfed Pakistan since March 9th.
The decision of the Supreme Court is equally promising for the way it said what it said and the outcome it produced. The manner in which Justice Ramday conducted the case by infusing integrity, decorum, congeniality and wit into the court proceedings was commendable. Under his leadership, the full bench of the Supreme Court acted unanimously in declaring what our Constitution says about independence of judiciary and separation of powers.
The consensus in the Supreme Court over how constitutional principles must be implemented in practice is in consonance with the understanding of the legal fraternity reflected through the lawyers’ movement, making the legal understanding of the concept of judicial independence unequivocal. By disregarding extraneous considerations and applying the Constitution in letter and spirit, the Supreme Court has removed the disconnect between the theory of the Constitution and its practical application, which unfortunately reduced the concept of rule of law in Pakistan to a meaningless fiction.
Further, the Supreme Court is fundamentally an interpreter of the law and not a fact-finding court. By focusing on the true import of the principle of judicial independence and putting it to effect instead of getting embroiled in factual controversies of the CJ saga, the Supreme Court has laid down a binding precedent, while also putting an end to the legal uncertainty and social turmoil unleashed by General Musharaf’s adventurism and ham-handed treatment meted out to the CJ.
In handing down a bold and unambiguous order, the Supreme Court has offered a public tutorial on why the Constitution matters to the life of ordinary people. Rule of law is the only concept that comes with a promise of egalitarianism in an otherwise unequal world. In restoring a fallen CJ, the Ramday Court has offered hope to the ordinary folk that the judiciary is an arbiter of justice and can offer retribution to those wronged even by the powerful.
There are many lessons to be gleaned from the CJ’s trial, the foremost being that political activism of the civil society is imperative for the health of a nation and to also prevent the abuse of state authority. The ruling regime might even have succeeded in evading searching judicial scrutiny for its attempted judicial coup, had it not been for the staunch lawyers’ movement. The response of the entire legal fraternity to the suspension of the CJ was so instantaneous and unqualified that it left little doubt regarding the extra-legal nature and moral bankruptcy of the ruling regime’s position.
As members of the civil society and representatives of the middle class, the lawyers established that a change from within is possible so long as there is clarity of purpose and the resolve to act selflessly. As professionals and bread-earners, they had to pay serious financial dividends for their strikes. But it was evident yesterday that the triumph of their principled stand has redeemed their sacrifices.
The restoration of the CJ is a propitious development for emancipation of the judiciary. But much work remains to be done. First of all, the Chief Justice will need to establish through his conduct that this was a battle for institutional independence and integrity and not a personal matter. It will be for him to ensure that he does not preside over a divided house in terms of performing his administrative functions, and that in exercising his judicial philosophy he continues to be guided by principle and not personal opinion or outcome.
For the lawyers, the Ramday ruling marks the realization of their fundamental objective of protecting judicial independence. They should build on their success and continue to struggle for establishment of democracy and empowerment of the people, but they must also ensure that the battleground moves to the political arena and away from the courts of law. Not all injuries are legal injuries and there are limits to the nature of relief courts can offer. A conscious effort needs to be made to disentangle the judiciary from partisan matters. There were many aspects of the lawyers’ movement that were justifiable only due to the extraordinary nature of the circumstances created due to abuse of authority by the executive. But now the primary responsibility of extrapolating the courts from the lawyers’ movement rests with the lawyers.
What lessons the Musharraf regime can learn from this debacle is a separate chapter altogether. General Musharraf put into play a series of events that threatened to cause irreparable harm to the structure of the state and the spirit of the nation. He would be wise to practice self-accountability at this hour before public accountability takes over.
For a Chronology of the Chief Justice Crisis, click here