A state without statesmen

By Eqbal Ahmad


AN old verity offers but cold comfort on returning to Islamabad: there is never a dull moment in the jungle. Hopefully, this battle - between the chief executive and the chief justice - will have ended by the time this essay appears. Like all battles, it too will and if not this week, then in the next. But the war may go on, and the casualties shall be many.

In this case, these shall surely include the political stature of our prime minister, and the moral stature of the Chief Justice and his talking colleagues. Above all, injury is being inflicted upon the institutions - executive and judicial - which were already ailing to the extreme detriment of state and society.

Prime Minister Nawaz Sharif, until recently the most promising politician since the founding fathers, has done himself nearly in and done the country great harm by turning what might have been a minor irritant to his executive posture into a no-win war. And Mr Justice Sajjad Ali Shah - by far the most historic Pakistani jurist since Messrs Memon, Cornelius and Kayani - has now diminished his well earned stature by plying his views too often with the press and neglecting to take colleagues along with him. It is as though a great and mysterious curse drives our leaders to self-destruction.

All others played bit parts more like knaves and clowns than men mindful of the national interest. Even the smallest of men who once held the highest judicial office in Pakistan jumped into the fray. Together, the dramatis personae of the Pakistani establishment present the portrait of a state without statesmen, leaders without confidence, and judges without discretion. Like termites, they systematically undermine the foundations of state and society, and their own interest. .

Ego-driven squabbles are ugly and petty affairs. When indulged in by people in power they inflict incalculable collateral damages on state and society. Turf wars are notorious for destroying the contested turf. It is also known that turf wars rarely end, and the sites of contest do not revive, until the affected people intervene against it, actively and in a variety of ways. We are an unfortunate people, as turf warfare is not confined in Pakistan to neglected neighbourhoods and communities. As in this instance, on previous occasions too the turf has been an entire country, inhabited by one hundred and twenty million mostly honest, hardworking and deprived people. But this time it has been somewhat better, as the legal profession and the press have played by and large a positive role during this altogether avoidable constitutional crisis. We are only starting now to intervene. This process ought to be accelerated.

The contested turf is neither Prime Minister Nawaz Sharif's nor Mr Justice Sajjad Ali Shah's. It belongs to the citizen. The stakes are high and concern the future of state and civil society in this country. Citizens must not lose sight of the issues. Two of these are central. The first concerns the independence of the judiciary, the second involves the separation of power. The two are symbiotically linked as mechanisms essential to ensuring justice and, in the modern age, also democracy. The question of the judiciary's independence has concerned humanity since ancient times when states were founded on the opposing pillars of consent and coercion. An independent judiciary that enjoys the rights and legitimacy to stand up to administrative - that is, coercive - power is essential to maintaining the balance between coercion and consensus without which no state can long survive. And only it can provide citizens justice under the law.

The principle of separation of powers was subsumed in the ancient and medieval polities as an aspect of judicial independence. In the Greek, Roman and Islamic polities, for example, distinct branches of government were expected to check and balance each other out. Even then, farsighted jurists viewed the subservience of the judiciary to executive authority as inimical to the principle of justice and good government. It was a similar consideration that compelled Imarn Abu Hanifa to decline the post of chief Qazi, a refusal for which the great jurist was flogged by the order of the caliph.

The doctrine of separation of powers as a cardinal principle of democratic dispensation originated in the 17th century from the struggle in England between parliament and the monarchy. In his Second Treatise (1690), John Locke theorized on the separation of legislative and executive power. But it was Baron de Montesquieu's Spirit of the Laws (1748) that explicitly linked the separation of executive, judicial, and legislative powers as an indispensable condition of liberty and rule of law. Montesquieu's work had a profound impact on the thinking of American revolutionary leaders. They correctly believed that the concentration of any two of the three powers - legislative, executive, or judicial - in the same hand shall constitute

tyranny, and subject the people to arbitrary and capricious will of their rulers. After the US constitution (1787), the world's oldest, nearly all democratic constitutions came to embody the essential features of the separation of power doctrine.With the structure of British colonial state, Pakistan inherited a watered down version of separation of powers. The principle has been formally enshrined in all three of our constitutions to date. But it has been observed haphazardly, and mostly in the breach. Successive rulers - Ghulam Mohammed, Ayub Khan, Z.A. Bhutto, Ziaul Haq, Benazir Bhutto- have, to varying degrees and in various ways, assaulted the independence of the judiciary, and attempted to tame it as an instrument of personal power. Many judges, including senior ones, have over time collaborated in this taming process - always to the detriment of the country. Yet, throughout these five decades some senior jurists maintained high standards of judicial integrity and kept alive a certain tradition and promise of an independent judiciary.

In March 1996, the Supreme Court under Chief Justice Sajjad Ali Shah took a major step in this direction when it ruled against the appointment of judges by Prime Minister Benazir Bhutto. As an assertion of judicial independence, the ruling marks a milestone in Pakistan's history. As such, it was widely acclaimed in Pakistan and abroad, and encouraged a trend toward judicial activism whereby citizens have been tending to take to the courts their grievances against government organizations and officials, and the courts have been inclined to hear their plaint.

Most informed citizens view this recovery of judicial power as one of few gains Pakistan has made from the restoration of parliamentary government. Prime Minister Nawaz Sharifs attempt to reduce the size of the Supreme Court and his refusal to approve the appointment of judges recommended by the Chief Justice are widely perceived as yet another executive attempt to subordinate the judiciary to its will. Monopoly over the appointments, transfers, and promotion of judges has been after all a primary executive instrument of manipulating the judiciary, and of reducing its level of judicial integrity as well as competence. The prime minister and his advisers ought to realize that as long as the Chief Justice is viewed as defending the autonomy of the judiciary and affirming the principle of separation of powers, he will have the support of the press and the people even if other superior judges oppose him.

The prime minister has been invoking the option of a legislation to reduce the size of the court. This may yield him a victory of sorts but the country shall lose; so may he. Given his majority in the parliament, the discredit from which the leader of the opposition suffers, and given also the amendment which reduces potential lotas' into mere 'chamchas', the prime minister can enact what legislation he wants. But rubber stamps have a way of boomeranging, especially when they are ill-used. They did no good to Ayub, Bhutto or Zia. This government faces an uphill task. Inflation is hkely to increase. Downsizing is creating a new nucleus of discontent. Unemployment may rise during much of Mr Sharifs present tenure. Under the circumstances, he needs to build goodwill in key sectors of society. So Mian Nawaz Sharif will do well to deploy the parhament discreetly and wisely. It has been a long time since our legislatures have legislated seriously and thoughtfully. It is time to do so as Pakistan suffers from an excess of outdated and medieval laws and an absence of modern ones.

This crisis needs to be resolved in a manner that will strengthen not weaken the judiciary. Executive power has not suffered erosion in this country. Rather, Pakistan's prime minister has more powers, formal and informal, than any other elected prime minister in the world. The judiciary, on the other hand, commands none except moral authority and legitimacy of the law. In the last four decades, it has been emaciated in multiple ways. It deserves reinforcement, and a chance to reform and renovate.

The Chief Justice and senior judges ought to assay the rot within, and take radical measures to clean the judiciary's Augean Stable. Barely four decades ago, judges did not allow telephones in their chambers, nor preside over public functions, and they rarely spoke to the press. Today most judges conduct themselves so that the distinction between judges and politicians has been blurred. Rumours of corruption, once unthinkable, abound. And written judgments lack not only grace but also the grammar. Above all, evidence abounds of a decline in legal acumen, that deep commitment to the law which is essential to the making of a good judiciary.