IT is not an occasion to rejoice when the chief justice of Pakistan has to assure his own people that the Supreme Court in its judgments is guided by law and conscience, and no other consideration. The mere fact that he was persuaded to extend this assurance shows consciousness on his part that the people entertain doubts to the contrary. Indeed they do, especially when the man in power is a party to the proceedings.
President Musharraf also claims that he has never asked the judiciary to do what he would like it to do. Reservations over this claim would be numerous.
The chief justice can prove his point only through the judgments of the court over which he presides and not by statements at formal dinners. The president can be believed when he says that he does not interfere in the courts but his responsibility extends much beyond that. The judges must feel assured that even if their judgments displease the executive authority they will not earn its ire in the way of being transferred to the Shariat court or, when the time comes, find their elevation to a higher bench jeopardised.
This apprehension is not hypothetical. Just one instance: Mr Ajmal Mian, chief justice of the Sindh High Court in the 1980s was sent to the Shariat court cutting short his tenure. A thought that often arises in conversation with judges and lawyers is whether the Shariat court is created to dispense Islamic justice or only to serve as a transit centre for the recalcitrant judges. Why should not each high court form a shariat bench of its own whenever the need arises? Mr Fakhruddin G. Ebrahim, a former attorney-general and Supreme Court judge, wholeheartedly endorses this view and argues for its abolition of the Shariat Court to the relief of the judges and the exchequer.
That the judges are not compelled to rule in individual cases as the executive authority wants is not enough to make the judiciary independent. They should also feel assured at all times that neither their peace of mind nor their career will be disturbed if their decisions hurt the government or its favoured party or cause.
It would be futile to deny that the judges are not under political pressure. Threat to the independence and integrity of the judiciary arises more from its own ranks than the attempts of the political leaders or officials to harass or win over the judges. Judges who need to keep their jobs for personal reasons are obviously more vulnerable than others.
Their number is on the increase for three chief reasons: one, the posts of judges have vastly increased but the standards of law education have fallen steeply; two, personal and political connections influence the selection because the practising lawyers and their associations are thoroughly politicised; and, three, the ICS/CSP and PCS cadres which constituted a vast pool of talent from which judges were drawn has all but dried up.
It may not be common knowledge that some distinguished judges came from the civil services. Among them were AR Cornelius, Shahabuddin, S.A. Rehman, Anwarul Haq, M.R. Kiyani, Shafiur Rehman, Saad Saud Jan, Habibur Rehman, K.M.A. Samdani, M.S.H.Qureshi, Masud Ahmad, Nurul Islam, Zafarullah (not to be confused with Sir Zafrulla Khan), M.A. Rashid, Hedayt Hussain and another Shahabuddin who later became chief justice of Bangladesh. At present, there is none.
The state of the judiciary is a lesson for so-called reformers that a cadre cannot flourish in isolation. It must draw on a large reservoir of people of diverse qualifications and backgrounds. Most ICS/CSP officers who became judges including Mr Cornelius and Mr Kiyani were not even law graduates but greatly enriched the case law.
The superior court judges now all come from the bar which is dominated by party politics or from the subordinate judiciary where the standards, as in all other public services, have plummeted.
To make up for the shrinking talent pool, the selection of judges needs to be entrusted to a larger judicial forum (rather than be left to the president, or the prime minister) in consultation with the chief justice. The heads of state and government both are now so deeply immersed in partisan politics that selection by them cannot but be politically tinged. Three most senior judges of the Supreme Court and chief justices of the four high courts would assure a more objective selection provided the eligibility criteria are clearly laid down.
Last week's international judicial conference in Islamabad may not have attracted many judges or jurists but it has thrown up two important questions which governments the world over may find difficult to answer. One is how to contain the terrorists (that includes sectarian killers in Pakistan's context) without infringing on their fundamental right to a fair trial and not to be detained indefinitely without being charged? The other is what is the alternative to the "doctrine of necessity" in the event of a successful military coup. US Justice Clifford Wallace posed these challenges to the conference but left them unanswered.
Truthfully, the answers to these questions have to be found not by the judges but by the leaders of public opinion in the values they cherish and the systems they shape. It is they who by their policies and actions nourish terror and pave the way for military coups or totalitarianism and only they can reverse these trends, not the judges or administrators.
Pakistan's brand of terrorism has its origin in religious bigotry. If the state and civil society both concede that liberty of conscience is the most indispensable of all human rights and that conscience is a sanctuary where God alone may enter as judge, bigotry and, with it, terror will die out.
Military coups will not succeed if the governments elected by the majority through fair and frequent elections were to administer justly respecting the rights of all citizens without any discrimination. Left to the military and judiciary, the alternative to the doctrine of necessity can only be anarchy or dictatorship.
The declaration issued at the end of the judicial conference suggests that internationally recognised human rights should be incorporated in domestic laws. Indeed, they should be and, further, made justiciable internationally. The countries who have signed the Universal Declaration of
Human Rights should have no qualms in making it a part of their legal codes. Terror and tyranny cut across national frontiers. So should the legal fight against them.
The president and the prime minister both talked of judicial reforms at the conference. Still contending with the chaos created by administrative and police reforms, the people deserve a respite from their reformatory zeal. After the reforms, both the district administration and the police, have gone under political control. The judiciary should be spared that fate.
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