By Asma Jahangir

While the restoration of the Chief Justice and other deposed judges was being celebrated, Sufi Muhammad took over the judicial system in Swat. Lawyers and judges were warned to stay away. Despite that, lawyers did go to the bar room but could not appear before the Sufi appointed Qazi courts. The judges stayed in their chambers and the government turned a blind eye to this illegal takeover by an individual who is now being patronised as a savior. Ironically, the ANP is fully supporting Sufi Mohammad and he is being hailed as the saviour of peace in Swat.

Not so long ago, the former chief of the ANP, Khan Abdul Wali Khan, described the rule of the Taliban in Afghanistan as a state of peace in a graveyard. Surely, the same applies to Swat. It is conveniently forgotten that the Sufi misguided the young men and took them for jihad in Afghanistan to fight with the Taliban. Many were captured and killed but Sufi himself survived and returned to face the wrath of the bereaved families.

With regards to this, the virtual surrender to militants in Swat is extremely worrying but cannot be undone through judicial activism alone. It can only be tackled by a joint effort of all organs of the State. It is therefore critical that the judiciary, the legal profession, and the public recognise the limitations on courts and lower their expectations attached to the Supreme Court. Leaders of the lawyers' movement made a grave error in promising the moon on the restoration of the Chief Justice. This misperception has to be rectified.

There is no doubt that the return of the deposed Chief Justice will send a positive message to all future generations of judges and they will be less likely to bow to the whims of dictators. The experience will also deter the executive from threatening judges with prospects of dismissal.

The reinstatement was a great victory for those who wanted to establish the principle of reversing the illegal acts of dictators. The lawyers' movement was unique in many ways. The young and the old, men and women of the bar stood firm in the face of several disappointments and hardships. A large number of people supported their cause without any personal benefit to them. Eventually, to the joy of all, the movement was able to get all the deposed judges restored because it made common cause with the political players. This was because a joint action that is based on principles has a better chance to succeed, rather than personalised issues that are based on personal gains.

Throughout the process the lawyers provided the moral high ground, people gave it their blessings and the political parties, mainly the PML(N) gave back the luster to a movement that was tiring out. More importantly, it brought out the distinction between the responses of a military government as against a fragile democratic set up. The saying that a poor form of democracy is better than a military regime was proved right. It is now crucial for all concerned to realise that an independent judiciary can only be founded in a democratic system and a democratic process can only go forward if it is backed by a system of justice that is transparent, fair, and free. A judicial and political system that is based on the principles of non-discrimination and reaches out to the marginalised sections of society is the only way forward in sustaining the democratic system.

The people of Pakistan have played their role well. Their verdict during the general elections held last year was clear. They supported a civilian set up and they willing stood up to be counted. Pakistan's civil society, particularly the legal profession made innumerable sacrifices, and the press took this opportunity to assert its independence once again. These are all positive for the image of Pakistan. It can though suffer if various organs of the State do not respect the principle of separation of powers and continue to intrigue against each other. The restoration of the deposed judges is only the first step in establishing the importance of an independent judiciary. Much more needs to be done and far more restrain has to be shown by all arms of the State if Pakistan is to rescue itself from the several challenges it faces.

The lawyers' movement must continue. It has made difficult promises and raised expectations, which are yet to be realised. As a first step, the method of appointment and accountability of judges has to be merit based. The mechanism set up for it must inspire the confidence of the people. The much-required judicial reforms-both in civil and criminal law- are the need of the hour. The judiciary must also follow certain traditions while dispensing justice. The superior courts have to build a consensus on a methodology of constituting benches. Sitting judges have to maintain a distance with the Executive and therefore, their role as Election Commissioners or Acting Governors has to be discouraged. These are legacies of dictatorial rules and must now be abandoned.

The role of the Supreme Court in advancing the concept of Public Interest Litigation is generally laudable, but it has also been rightly controversial. In a society where the executive is blind to the suffering of the people and access to justice is limited to a few, the judiciary becomes increasingly obliged to respond to injustices. At the same time, judges cannot play the role of a Robin Hood but must remain sober and impartial arbiters. In the past PIL has also been abused by professional litigants, who are often lawyers themselves. It was also used as convenient tool by judges themselves to rule on issues directly affecting their own careers. Even the original proponents of PIL have cautioned that judicial activism is healthy as long as it does not become an 'unruly horse' and does not encroach upon the legitimate authority of the Legislature and the Executive

It would be a folly to lay all the burden of proper governance on the judiciary alone. The government, the Opposition and indeed the Parliament itself have to work vigorously to sustain the democratic process. A parliament that is often short of its quorum and meets seldom cannot hope to remain sovereign and an opposition that shies away from speaking up on contentious issues will only mislead public opinion. Mohtarma Benazir Bhutto Shaheed, often suggested to set up a truth and reconciliation commission. If only truth prevails, reconciliation will automatically follow. Political leaders are quick to reconcile their differences but less inclined to shed double standards.

Political parties that zealously supported the restoration of the deposed judges on the plea that the constitutionality of the judiciary be retained are quick to justify the rule of Sufi Mohammad in Swat. Some have even argued that the social structure in Swat is best suited to the enforcement of Sufi style Shari'a and that it was the demand of the people of Swat and must therefore be respected. However, the election results of last years general elections indicate otherwise. The MMA, a supporter of Shari'ah rule lost badly.

People have left the area in large numbers and those who have returned have not done so as a mark of support to the Sufi rule. The women of Swat were never heard demanding that their movements be restricted to their homes alone. It would not have taken a vicious militant fight to impose restrictions on the on women in Swat if indeed the women were content to stay at home and be secluded from society. There can be no justice without truth. The government faces difficult choices while it is being confronted with several tough challenges but it has to follow a direction that leads the nation towards genuine peace rather than eventual anarchy. By succumbing to pressure under the gun rather than public opinion is a troubling approach. It will undermine the system of justice and peaceful forms of expressions will give way to violence. There have been many examples of it and are bound to be many more. The years of struggle for establishing a strong and independent judiciary will go in vain if lawyers and other civil society players do not remain vigilant to protect the rights of all citizens.