Restoration of Pro-Nov 3 Judiciary Most Important

Looking beyond the polls
By I.A. Rehman: Dawn, December 27, 2007

WITH polling day less than a fortnight away, the greatest cause of anxiety among democratic-minded people is whether the anti-authoritarian stirrings of the past few months will survive the so-called general election. The question touches on the present society’s capacity for realising a democratic change as well as the direction of its strivings.

Whatever the outcome of the electoral exercise, it has already split the political community into two camps, one of them hoping for salvation by joining the process and the other by boycotting it. Neither camp apparently has a reason to be sanguine about its success.

Those joining the electoral race are crying themselves hoarse that the establishment is determined to rig the election and their inability to foil such designs will hardly be challenged. The boycott group argues that, instead of leading to a democratic dispensation, the election will only extend and legitimise authoritarian rule. But, regardless of the logic in its stand, this group too has not been able to demonstrate the strength needed to defeat the forces of the status quo.

That this division has weakened the democratic forces is quite obvious. The reasons that made unity among the parties professing adherence to representative rule impossible are now less important than the need to guard against the possibility of the rift continuing into the post-election period. Nobody should ignore the danger that those who come out on top in the election, howsoever it is conducted, or whoever are chosen by the establishment to lend it a democratic façade, may not be able to force the people’s agenda on their more powerful partners.

If that happens, those in assemblies and those outside will exhaust themselves fighting one another and thereby give a new lease of life to the autocracy that they should be fighting unitedly. Is it possible to ensure that after the polls the two camps will be able to jointly work for the restoration of democracy? Can the civil society elements out in the field — lawyers, media people, students — accomplish this?

The task has been made harder by the failure of political parties to nourish democratic ideals through regular contact with the masses during periods between elections. Lack of organised cadres has been the single most important cause of division on the boycott issue.

This is the fatal flaw in national politics that has enabled one authoritarian regime after another to make a mockery of civilised governance. And this is the truth the events of 2007 have laid bare, for what happened on Nov 3 constituted the greatest assault ever on the Pakistani people’s democratic rights. Now the restitution of the rights of the judiciary has been pushed to the top of the country’s agenda.

For more than 50 years political parties have tried to hide their lack of public support by shifting the responsibility of guarding democracy entirely to the judiciary. All parties, small ones as well as those that supposedly constitute the mainstream, have expected the courts to save them from the consequences of their sloth, lack of conviction and alienation from the people. And when, some months ago, the judiciary chose to fulfil its constitutional duty they were quick to assume that democracy had finally triumphed. It hadn’t.

The reality the political parties faced in November last was that they had exaggerated the role of the judiciary in enabling authoritarian regimes to stay in power as long as they did and to do whatever they had chosen to do, and that it was time they accepted the challenge of resisting autocracy, a challenge they could not pass on to any other institution or body of people.

The unity of pro-democracy forces the country needs will hinge on an understanding on the restoration of the judiciary to its pre-November 2007 status.

Unfortunately, some of the major players are reluctant to accept this formulation. The reasons vary from party to party. Some find it hard to overcome their subjective responses to the judiciary’s past performance while some others have consciously or unconsciously accepted the theory that the courts have been harrying the knights engaged in saving the world from terrorists. This complaint is similar to inefficient prosecutors’ protests at courts’ refusal to convict the accused without evidence and both grievances merit summary dismissal. The case for taking a stand on the restoration of the judiciary, on the other hand, can easily be summed up.

The mess one notices all around is largely due to the executive’s acts of omission and commission. It cannot possibly disown responsibility for first promoting militancy and then making a hash of the campaign to overcome it. It is also responsible for inviting judicial activism by neglecting its normal duties to the people. There would have been no need for the courts to reprimand the establishment’s privileged knights if the administration had rendered to the people what was due to them, if the police and security agencies had functioned within the law, if women had been protected from feudal brutality, and if bonded haris had been recognised as human beings.

The November attack on the judiciary has resulted in freeing a manifestly incompetent executive of any semblance of accountability. The consequences to the people are too grim to be ignored. Fears of an increase in police excesses and abuse of law to suit a predatory executive’s convenience are not unfounded. The restoration of the judiciary is necessary to repair the accountability bar to the executive’s actions that has wantonly been destroyed. The undoing of a wrong done to some justices is less important than the need to free the judiciary of its fears of an executive that recognises no limits to its powers.

More importantly, the people have been eagerly looking for means to make the polity immune to relapsing into absolute rule by the military after each spell of limited and strictly regulated representative governance. Progress towards this end demands, among other things, that elected representatives should be able to roll back the extra-democratic measures of authoritarian regimes. The idea is not unknown to students of Pakistan’s politics. The movement against Ayub Khan was aimed at ridding the country of the anti-democratic assumptions underlying the system of Basic Democracies and the so-called constitution of 1962. Similarly the prolonged agitation against the eighth amendment of Gen Zia was directed at demolishing institutionalised encroachments on democratic principles.

Now a large part of the population believes Pakistan will not be able to negotiate the crisis of the state unless the Nov 3 measures are expeditiously rolled back. Restoration of the judiciary is thus essential as the first step towards ensuring protection against any disruption of the constitutional order in future.

The people will forgive the boycott generals for challenging autocracy without gathering any soldiers behind them and the election-wallas their haste in coming to the executive’s rescue if they do not lose sight of the fact that the long-term survival of both depends on fighting for justice for the judiciary.