Law and Governance should not be opposing forces

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Lessons to learn

The rule of law is the cornerstone of a functioning democracy

“Remember that the scrupulous maintenance and enforcement of law and order are the prerequisites of all progress.” – Quaid e Azam Muhammad Ali Jinnah.
Judges and members of the judiciary at large are to remain impartial and independent from all external pressure, whilst interpreting or passing judgement on matters of law. Their relative neutrality must be clear and irreproachable so as to inspire confidence in the public that their cases will be heard and resolved in accordance with the law.
 
A transparent and unbiased judiciary is the hallmark of a well-functioning democracy. That is where a catch 22 situation is created in Pakistan. We are not, by any stretch of the imagination, a properly functioning democracy.  2018 marked the third, relatively smooth, transfer of power from one elected government to the other.  Successive governments of Sharif – Bhutto and now Zardari, punctuated by periods of martial law have, by now, created a fissure within the state in which democracy is often used as an excuse to aid and abet the corruption of the powers that be.
 
The constant ebb and flow of military rule has been a hindrance to the development of a proper separation of powers and a subsequent organic system for checks and balances that never developed within the three arms of government. The Legislative and Executive branches of government have been failing this country for so long that we have become accustomed to their shortcomings. Be it potential land reforms, educational or medical reforms. All steps leading towards a true welfare state under the umbrella of democracy are being corroded. This has given way for private individuals to fill the vacuum. Thus, goods and services that are, in principle, the responsibility of the State towards the citizens are being provided at a premium for a select class of people who can afford their cost. The absence of accountability in almost all arenas, paves the way for limitless use and abuse of whatever power the individual may yield.
 
The judicial system is not without its own set of problems. These were made prominent in varying circumstances. The Provisional Constitutional Ordinance (PCO) promulgated by Musharraf in 2007 exposed some of the deficiencies within the judiciary. The 23rd Chief Justice of Pakistan, also the only judge to have resigned from the Lahore High Court in 2007 after refusing to take the oath under the PCO, Jawwad S. Khawaja, in his farewell address to the Pakistan Bar Council and Supreme Court Bar Association spoke about the need for self-accountability. His speech laid bare the glaring deficiencies within the judiciary. He commissioned a study which reported that an average case takes at least 25 years from registration to eventual conclusion at the Supreme Court, oftentimes cases are passed down through generations.
 
This is not hard to believe, it is shocking how common it is for children who take over cases that their fathers died arguing. Therein lies the failure of the judiciary. The legal system in Pakistan is the perfect illustration of the age old saying, “justice delayed is justice denied.” Denial of justice spreads a sense of frustration in the petitioner providing fertile ground for mafia-like groups to profit from, what can only be described, as a breakdown of the system. Rampant corruption, nepotism, lawlessness all stem from the fact that in Pakistan, might is, in fact right. Justice seems to come at a cost, be it the cost of time or financial resources emphasises the sheer negligence that haunts our judicial system. It is clear that most members of the judiciary have identified these shortcomings various times, but the fact that there is a lack of willingness and urgency to remedy the situation, spreads further deterioration within the system by empowering those who run contrary to the law. When the chances for swift and efficient disposal of all sorts of legal issues are low, there will be no regard for consequences.
 
When breaking the law becomes second nature to the ordinary citizen, be it something as trivial as running a red light, the fabric of society as a whole begins to fall apart. Society begins to lack cohesion and harbors indifference towards the rules and regulations. Thus, we are presented with a vicious cycle, when the lack of justice becomes a way of life. It is taken for granted, the fact that if there arises any question of law, turning to the police, or getting your day in court will never ensure justice. There is a dangerous dichotomy that exists within those in Pakistan. While we exploit the system to the best of our indiviual capacity, whenever we travel abroad, be it for economic purposes or leisure, we present ourselves, mostly, as law abiding citizens. We stay within the confines of the law and stick to a system that ensures consequences for anyone who may deviate from it, regardless of financial stature (most of the time).
 
The rule of law is the cornerstone of a functioning democracy. It entails the strict observation of laws that apply to the rulers and ruled. It emphasises without any space for maneuvering, the fact that law sees no colour, religion, financial stature or any other external feature that may influence it. The merits of the case are the only relevant aspect. Anything less than this would undoubtedly lead to anarchy. Suffice to say, rule of law is the heart of any democratic system of governance. If the heart is not working to its full capacity, the body will inevitably head towards, and eventually suffer a collapse.
 
The judicial system is not without its own set of problems. These were made prominent in varying circumstances
Justice Saqib Nisar retired as the 25th Chief Justice of the Supreme Court of Pakistan on the 17th of January 2019, one day before his 64th birthday. His retirement will signal the flood gates for commentary on his tenure to open. Riddled in judicial activism, Justice Saqib Nisar’s time as Chief Justice will be one for the history books, warts and all.  His fiery demeanor was sufficient to rattle many corporate cages; the bottled water companies, private health and education businesses. He also oversaw some major judgements: Panama papers, the catalyst that finally toppled the House of Sharif.
 
The Aasia Bibi verdict that not only vindicated slain governor Taseer but also provided a look into the possibility of a tolerant and just Pakistan that lay within arm’s reach. Facing the tenuous NAB rules and irregularities.  He was also responsible for single handedly attempting a crowd funding experiment to raise money for the construction of the Diamer Bhasha Dam. This highlighted the drinking water crisis looming ahead and managed to raise a staggering nine billion rupees (as reported by the State Bank of Pakistan), a drop in the ocean where the bigger picture is concerned but a wildly popular and passionate campaign regardless.
 
Despite all this, hi constant overlapping into the duties of the Executive and the Legislature was a cause of continuous concern, wading again in the already muddied waters that is the separation of powers. The purpose of this clear separation between three branches of government (Executive, Legislature and Judiciary) is that they are to run parallel to each other. They are like train tracks, that allow the train (the government) to run smoothly and overlap only under certain circumstances or at junctions that will serve to advance the train instead of hindering its route. The attainment of this balance ensures a government that is headed in the right direction.
 
Despite all his activism, he was unable or lacked the will to address the crisis that lay within the judiciary. The crippling delays and the vulnerability of judges towards external influences. Treatment of a symptom does not rid the body of illness. It is the cause that needs to be addressed. In this case, Justice Nisar’s interpretation of judicial activism prevented him from taking concrete steps to reform the legal system itself. Until and unless the judiciary looks inwards and resolves to bring itself under strict scrutiny, there will be no recourse for the citizens or for the country.
 
The 26th Chief Justice of the Supreme Court of Pakistan, Justice Asif Saeed Khosa will begin his tenure with a heavy burden of responsibility on his shoulders, promising to uphold the Constitution of Pakistan. Only time will tell how Justice Khosa interprets his role for the next 11 months. One thing that is clear is the fac that Pakistan cannot be fixed or made to look new until its heart, its judiciary rids itself of the illness that plagues it. A progressive country is one that empowers its judges. The government must instill confidence in the judiciary and surrender itself to the fact that whether they like it or not, the rule of law is non-negotiable in Jinnah’s Pakistan. For if there is even a sliver of a chance for us achieving that vision of Pakistan it will be through a respect for law and acceptance for consequences of breaking it.
“Equality, justice and fair play to everybody.” Quaid e Azam Muhammad Ali Jinnah.
 

By Sahar Shehryar

Source: www.pakistantoday.com.pk