[Reader-list] PK: The Emergence of a People Sensitive Judiciary - by Faisal Siddiqi

[yasir ~يا سر]

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The Emergence of a People Sensitive Judiciary
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by Faisal Siddiqi**

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“Prime Minister Yusuf Raza Gilani, Chairman Senate Farooq H Naek, Speaker
National Assembly Dr Feminda Mirza, federal ministers, Supreme Court judges,
services’ chiefs, chairman joint chiefs of staff, parliamentarians and
senior government officials attended the dinner. *However, none of the
restored judges, including the Chief Justice Iftikhar Chaudhry, attended the
dinner despite invitation”*.


*[The News dated: 21-3-2009]*
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*“Justice Iftikhar pays 12-hour visit to central prison…… He took notice of
the substandard food being provided by the canteen and kitchen management
and ordered to cancel the contract of food stuff suppliers”.

*[The News dated: 11-5-2009]*



The Lawyers Movement and the judicial revolt which began on March 9th, 2007,
is a phenomena which has elicited extreme responses. One school of thought,
I would call the ‘romantics’, saw the lawyers movement as a social
revolutionary movement having the revolutionary potential to restructure
state and society in Pakistan. Another school of thought, I would call the
‘jiyala politico’s’, saw the lawyers movement [especially the fifth phase of
the movement which began in August, 2008] as a reactionary movement having
the potential of judicial despoticism which would be used by the rightwing
and the anti-democratic forces to sabotage the process of liberal democracy
in Pakistan. Without going into a detailed discussion as to why the
romantics and the jiyala politico’s are wrong, I would only say this: the
public rhetoric of the lawyers movement should not have been confused with
the specific pragmatic goals of the movement. The goals were simple: restart
the democratic process, get the army out of the formal political process,
restore the deposed judges, reverse the actions of November 3rd, 2007, and
dethrone the PCO judiciary. Right now, the score count is: ‘Three and half
achieved and one and a half to go’. Sadly, for the romantics, there was no
social restructuring agenda within the lawyers movement and to the great
disappointment of the conspiratorial jiyala politico’s, there was no mullah
or military agenda controlling the strings of the lawyers movement.




The lawyers movement was neither social revolutionary nor a mullah-military
conspiracy but was rather a reform movement for the furtherance and
deepening of constitutionalism and the institutional, sociological and
psychological restructuring of the judicial system in Pakistan. Yes, as far
as constitutionalism and the reform of the judicial system is concerned, it
was revolutionary but the self-obsession of lawyers with constitutionalism
and the obsessive focus on law by ‘civil society’ should not have us forget
the limits of constitutionalism to social, economic and political change.
Roti, Kapra aur Makkan will be delivered by the political process and not by
the legal process.



What are the consequences of the lawyers movement and judicial revolt on the
future of the judicial system and constitutionalism in Pakistan?. If the
judicial and constitutional agenda of the lawyers movement was individual
focused and dependent on the restored judges then this agenda will die it’s
constitutional death when all these restored judges retire in the next
decade. The lawyers movement and the judicial revolt was indeed individual
focused only in it’s strategy and not in it’s consequences. A fundamental
rupture, giving rise to a structural shift, has indeed occurred within the
judicial institution as a result of the lawyers movement and the judicial
revolt, the consequences of which will outlive the restoration and the
retirement of the restored judges. Let us now examine this structural shift.




The source of judicial power in Pakistan is the constitution and the law. In
other words, the judicial institution is created and sustained by the
constitution and the law. This source of law has given rise to two distinct
kinds of judicial power. Firstly, the structural power of judicial supremacy
and monopoly in areas of constitutional and legal interpretation. In simple
terms, all matters of constitutional and legal interpretation [e.g. what are
the powers of the president, prime minister and chief of army staff or what
are the rights of the citizens vis-à-vis the government or vis-à-vis other
private citizens] are finally and conclusively interpreted by the judiciary
and the interpretation of the judiciary in constitutional and legal matters
is binding on all concerned i.e. civilian and military ruling elites, the
government and citizens. Therefore, if it is the constitution and the law
which determines the powers, responsibilities and rights of the executive,
the legislature and the citizens and if it is the judiciary which determines
what the constitution and law means then it is the judiciary which
determines the powers, responsibilities and rights of the executive, the
legislature and the citizens. Or as Bishop Benjamin Hoadly rightly said:
“Whoever hath an absolute authority to interpret any written or spoken laws,
it is he who is truly the lawgiver, to all intents and purposes, and not
that person who first wrote or spoke them”. Secondly, the institutional
power of the judiciary to resolve actual disputes involving various
governmental, political and private actors. In this world, the institutional
framework of dispute resolution is the judicial institution, whether the
dispute is between the prime minister and the chief of army staff or between
the government and a common citizen.



With such structural and institutional power, why is the judiciary been so
weak and so executive oriented and dominated? The answer is simple: these
constitutional powers of the judiciary, in a weak and transitional
constitutional system like Pakistan, are in reality powers only on paper.
The political executive has the coercive power of the police and
bureaucratic establishment, the army has the coercive power of it’s soldiers
and the military bureaucratic establishment but in essence, the judiciary
only has the power to pass orders. It has no coercive institutional power to
implement it’s orders or restrain the political and military elite from
dismissing independent minded judges. In short, it is structurally dependent
on the executive for the implementation of it’s administrative and judicial
orders or even for safeguarding itself.



A judicial institution independent on paper/constitution but dependent in
reality on the executive is the problem to which the lawyers movement and
the judicial revolt seeks to provide a tentative [not conclusive] answer.
The answer was found in developing the mobilization power of the judicial
institution to support its structural and institutional power. The July
20th, 2007, judgment directing the restoration of the Honourable Chief
Justice was implemented immediately and the November 3rd, 2007, order
restraining the removal of any judge was finally fully implemented on March
16th, 2009, by restoring the Honourable deposed judges because of the
mobilization power behind the lawyers movement and the judicial revolt. In
short, not only were orders of the judiciary implemented but independent
judges were restored because of Awami takat. The Awam by backing the
judiciary has made the judiciary less dependent and less fearful of the
political and military executive. The Awam had finally entered into the
chambers of the superior judiciary and laid the ground work for the
emergence of a people sensitive judiciary.



The superior judiciary has been, at worst, executive dominated, and, at
best, executive oriented in it’s mindset. The distinctive aspects of this
emerging people sensitive judiciary are two fold. Firstly, in order to
retain the mobilization power of the Awam, the judiciary will strive for
public legitimacy for it’s orders, actions and judicial reforms. In other
words, the superior judiciary will now be listening equally, and be equally
sensitive, to both the voices of the executive and the Awam. Awami
legitimacy is now the new power game in town and Awami opinion is the
defacto power source of this people sensitive judiciary. Secondly, this
defacto power source of Awami legitimacy and it’s consequent, mobilization
power, has qualitatively deepened the independence of the superior
judiciary. It is not as if the judiciary has only now become independent
during the last two years but rather it has found a tentative answer in the
shape of Awami legitimacy to counter the dejure and defacto power of a
monopolizing executive. A new power bloc has emerged on the national scene
and it goes by the name of a ‘people dependent and people sensitive
judiciary’.



The emerging relationship between the judiciary and Awam is a kind of
democratization of the superior judiciary. Awami legitimacy will become one
of the jurisprudential parameters to determine as to what issues will have
judicial priority as well as to determine the validity of judicial
pronouncements. But who determines these issues of Awami legitimacy as the
judiciary or the Awam have no direct relationship with each other? There are
no elections of the superior judiciary? Who are ambassadors of the Awam
before the judiciary? This new power relationship between the Awam and the
judiciary has also given rise to a new power elite which is composed of
lawyers, litigants [i.e. people who have pending cases before the
judiciary], media and mobilized individuals and groups of civil society.
These are the new ambassadors or priesthood which will create, sustain and
deconstruct the narrative of public legitimacy. Like any power elite, this
ambassadorial class of lawyers, litigants, media and mobilized individuals
and groups have their own vested interests which may or may not conform with
what the Awam wants. But until the constitution is amended and the superior
judges are elected by the Awam, we are stuck with this ambassadorial class
who will influence judicial priorities and the judicial process by the
process of reading and [un-intentional and intentional] misreading of Awami
expectations.


What are the consequences of the emergence of this new judicial power bloc
which also has the Awam as the source of its defacto power?. Four
consequences seem to be on the horizon. Firstly, more independence for the
superior judiciary implies more conflict with the executive and the
legislature till such time that a new working relationship emerges between
the political executive, legislature and judiciary. If the democratic
process survives and continues, this new working relationship will emerge
but historical time is required for the resolution of these conflicts as
there are no short cuts to history. We all have to bear, and more
importantly, survive these conflicts.

Secondly, regardless of the short term conflicts between the political
executive, legislature and judiciary, the long term structural contradiction
and conflict will be between the dejure superior judiciary and the defacto
military bureaucratic ruling elite. This is the historical contribution of
the lawyers movement i.e. furtherance of constitutionalism means a
continuing decrease in the defacto power of the military bureaucratic ruling
elite. But this trend is critically dependent on the continuation of the
democratic process because there can be no independent judiciary without
constitutionalism and there can be no constitutionalism without democracy.

Thirdly, socially constructed ‘public issues’ will have to be constantly
taken up by the superior judiciary in order to sustain and develop public
legitimacy. In this process, the superior judiciary will have to respond to
unrealistic non- legal expectations [e.g. decrease inflation etc.] and do
strategically difficult constitutional rectifications [e.g. hold accountable
the perpetrators of November 3rd, 2007, etc.]. There is a mine field of
unrealistic non-legal expectations and strategically difficult
constitutional rectifications about which no law book provides answers.

Fourthly, there will be series of judicial reforms especially in the area of
the criminal justice system. People, especially lawyers in general, might
disagree with the substance of these reforms [especially if it puts a check
on their professional disease of seeking adjournments] but the era of
judicial reforms has arrived and it will be like a bullet train. This
superior judiciary will, and has to, try to save the crumbling judicial
system because our Taliban Fundo brothers are about to gate crash our
judicial system with their own system of violent justice.



But regardless of what the future holds for the judicial system, the lawyers
movement and the judicial revolt has atleast put the judicial system on the
right track. This is symbolized by the fact that the judicial institution is
paying more attention to the sub-standard food being fed to the wretched of
the earth languishing in the jails of Pakistan and is declining dinner
invitations from the executive.


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