Justice Delayed Is Justice Denied
By Ahmad Faruqui, PhD
Dansville, CA
Justice delayed is justice denied. With those words, 19th century British statesman William Gladstone coined a phrase that has echoed in political and legal discourse ever since. Indeed, he could have been speaking about Pakistan today. A miscarriage of justice took place in Islamabad on the 9th of March last year. It has yet to be rectified.
The defining moment for the incoming, popularly elected government will come when it tackles the issue. It should think of the constitutional legacy of Quaid-i-Azam M. A. Jinnah, who was also one of the sub-continent’s finest attorneys. The Quaid would have been proud of the role played by Iftikhar Chaudry, Aitzaz Ahsan, Munir Malik and their cohorts in last year’s movement for judicial independence. They are the real heroes of 2007.
Their deeds inspired the Black Coat Revolution when thousands of attorneys took to the streets in defense of civil law and in defiance of martial law. Without their courage and exemplary conduct, which has won global acclaim, there would have been no Democratic Revolution on the 18th of February.
Unfortunately, even though three weeks have elapsed since the general elections, the need to restore the 63 judges is not visible in the political agenda of the electoral winners. This lack of priority may well be the handiwork of the Bush administration. It continues to meddle in Pakistani politics even though the electorate voted overwhelmingly against the King’s Party, in large measure because Musharraf was seen to be an American puppet.
The White House, depressed at the electoral outcome, is doing its utmost to salvage the Musharraf presidency. That is the view of many, including Barbara Boxer, a US Senator from California . She is aghast that that while Washington is busy spending billions of dollars in Iraq to set up a judiciary, it is taking no action to help restore the judiciary in a country which already has one.
Boxer poses a rhetorical question: “Imagine what would happen if President Bush went to the microphone and said: ‘Today I’m firing the Supreme Court and all the judges can go home!’” She opines that the Bush administration has concluded that re-seating the deposed judges would lead to Musharraf’s removal from office. The White House is doing everything it can to prevent that from happening and does not care that this undercuts its commitment to democracy.
Tom Malinowski, Washington advocacy director for Human Rights Watch, has reached a similar conclusion. He adds that by failing to take a strong and vocal position on the restoration of the deposed judges, Washington is not helping to control the rising anti-American sentiment in Pakistan.
Notwithstanding his plummeting popularity at home, Bush still seems to wield considerable influence in Pakistan. Sadly, many Pakistani political leaders and even some analysts have begun to argue that judicial restoration is not in the country’s interests. The first job, according to this argument, is to restore democracy in the country. They contend that if the new government takes up the issue of judicial restoration, it will be sucked into a quagmire.
But people who put forward this argument are subscribing to a double standard. Where were these “defenders of democracy” when Musharraf was dismantling the Constitution, removing the judges of the Supreme Court at will, and arresting the most senior attorneys of the country as if they were thugs and hooligans?
Those who are objecting to judicial restoration are trying to have it both ways. They are either supporting democracy or they are supporting dictatorship, since without an independent judiciary, there is no democracy. We don’t have to wait for history to pass judgment on them. Their canard stands exposed.
Some have equated the restoration of the judges with the impeachment of Pervez Musharraf. Since the latter requires a two-thirds majority in parliament, and since this seems to be beyond reach, the proponents of this view are suggesting that the former issue be tabled.
But removal of the judges, as many eminent jurists have argued, requires a simple majority which is clearly in hand. Some assert it can be ordered by the Cabinet. The impeachment issue is nothing but a diversion.
The new political leadership has to deliver on the heavy mandate for change that the electorate has conferred on it or it will undermine its credibility. The voters have declared that they want illegal acts committed by the Musharraf regime to be nullified. The new parliament will not be breaking any law if it restores the judiciary.
Some have argued that a restored judiciary will be beholden to the new political parties and will be unable to function in an unbiased fashion. Non-sequiturs deserve no response. Others have argued that if Musharraf’s back is pushed to the wall, he will declare another emergency and may even proclaim martial law (but that would almost certainly lead to his handing over power to General Kayani).
If any purpose is to be served by the general elections and if the restoration of democracy is to carry any meaning, then all such political intimidation has to be faced down. There is no room for threats in a democracy. The Pakistan Resolution was not passed in 1940 so that the voice of the people would be muffled by the barrel of a gun 68 years later.
A final argument is that Musharraf should be kept in power because he has given Pakistan the gift of democracy, that it would be ungrateful on the part of those who have won the elections to vote against their benefactor. This is tantamount to saying that the sacrifices made by the jurists and lawyers should be forgotten and that these brave men should be allowed to slip into history without a trace.
Such a travesty of justice should not be allowed to stand. It rewards extra-judicial tampering with the Constitution and sets a terrible precedent. It is time for the nation to turn a new leaf. March is always a good month for spring cleaning in the northern hemisphere so why should Pakistan be any exception?
There is no turning back. The new order has arrived and the old order must perish. Democracy cannot co-exist with dictatorship. The new leadership should not fear the overhang of the previous regime. It derives its power from the people. The day it thinks its power derives from Musharraf, that day it will become powerless.
In the coming weeks, the forces that stand for change will duel it out on the political stage with the forces that stand for the status quo. This conflict evokes two French proverbs: “No army can stop an idea whose time has come,” which comes from Victor Hugo, and “The more things change, the more they stay the same,” from Alphonse Karr. Hopefully, in this encounter Hugo will trump Karr. Should that not happen, more sacrifices will be required to put democracy back on track and the country on the road to sustainable political and economic development.
(Ahmad Faruqui is the author of “Rethinking the national security of Pakistan.” Faruqui@pacbell.net)
