Bench-boots connivance

The bench-boots connivance has brought a great deal of benefits to judges collaborating with the military rulers. Even Justice Iftikhar Chaudhry was promoted as CJP by surpassing Justice Falak Sher mere because he was at one point an eager devotee of the Musharaf regime.

Of all the three organs of the state, judiciary is supposed to play a vital role for sustaining democracy and rule of law in the country. Judiciary elaborates the hidden meanings of the constitutional clauses and hence clarifies the ambiguities prevailing in the constitution, its wordings and its structure. Judiciary clarifies the allocation of powers and their distribution among various organs of the state and marks their functions, roles and responsibilities.

Historically speaking, the role of judiciary in Pakistan has never been satisfactory. Inclination of judiciary and judges towards the military dictators in Pakistan has brought this institution under severe public criticism. It is because of these prevailing injustices and inclination towards specific groups and rulers that today in Pakistan, deteriorating condition of law and order, accountability and corruption is rife.

Under the military regimes the Article 8 and other such articles which guarantee the basic human rights of citizens are suspended. The only well articulated, parliamentary and civilian constitution of Pakistan, the constitution of 1973 has been either suspended or abrogated by various military regimes. Twenty-nine amendments were inserted in the constitution during the military regime of Pervez Musharaf only. However, the judiciary always played the silent spectator when a military dictator was busy tinkering with country’s constitution.

The judiciary went off-track in 1954 when it endorsed the illegal action of Governor General Ghulam Muhammad’s dissolution of Constituent Assembly. The highest court validated the decision and the appeal of speaker Molvi Tameez ud Din for the restoration of the dissolved Assembly was dismissed. The famous doctrine, the ‘Doctrine of Necessity’ was created. From that moment onwards this doctrine has always lent our military dictators a helping hand.

The generals have ruled Pakistan with the help of judges of higher courts of country. A judiciary playing second fiddle to the GHQ has haunted civilian governments since long.

It was our judiciary that legitimised the military dictatorships of Ayub Khan, Zia ul Haq and Pervez Musharaf. The execution of arguably most popular civilian Prime Minister, Z. A. Bhutto, became possible when the judiciary connived with the military.

It raises legitimate questions regarding the integrity of judges.

The bench-boots connivance has brought a great deal of benefits to those judges who collaborated with the military rulers in the country. Justice Irshad Hassan, for instance, who took oath under the PCO was later appointed as the Chief Election Commissioner of Pakistan. Even Justice Iftikhar Mohammad Chaudhry was promoted as the Chief Justice of Pakistan by surpassing Justice Falak Sher mere because Justice Chaudhry was at one point an eager devotee of the Musharaf regime. Lest we should forget it was Justice Iftikhar Chaudhry who endorsed Musharaf’s presidency and legitimized his position as the Chief of Army Staff (COAS). He legalized the referendum that the Musharaf regime enacted to seek legitimacy. My Lord considered it a ‘public verdict’.

The ongoing judicial activism in Pakistan will bode ill for the country’s future. As a result of this activism the judiciary in Pakistan will not be answerable to the parliament, the supreme law-making body. The entire process of hiring and firing of judges along with their promotions will be a prerogative of the Chief Justice entailing a high risk of personal liking and bias.

The appointment of High Courts judges during 2011 reveals the danger: five Lahore High Court-judges belonged to Hamid Khan Chamber while another five were rooted in the chamber having kinship with Justice Khwaja Shareef. One judge, Justice Umer Peerzada, was affiliation with the ruling PPP while Justice Yawar Ali was Justice Ramday’s brother-in-law. Similarly, Justice Hameed Daar is related to Justice Khwaja Shareef. This is just tip of the iceberg. The iceberg of judicial nepotism will require a book-length study. With such strong trends of nepotism based on political affiliations and kinship, access to transparent justice remains a mirage.

(Originally published here)