We may not be doing justice to history if we only blame one institution for not letting democracy flourish in the country. All are responsible: some more and some less, and the future of democracy is linked with institution building and policy of non-interference, good governance and promoting culture of tolerance.
People have high expectation of the incumbent judiciary, which got independence after a grand struggle, participated by judges, lawyers, politicians, media and civil society, from 2007 to 2009. The way forward to safeguard democracy is through protecting freedom of the press, independence of judiciary and strengthening of parliament.
It is true that had judiciary not given legitimacy to military rules from 1958 to 1999, democracy would have been much stronger today. The other institutions are equally responsible, something which they are not ready to admit. The Charter of Democracy (CoD) still provides the way forward, provided politicians get ready to admit to their mistakes. No justification allows military rules like the one in 1958, 1968, 1977 or 1999 and only lame excuses are given to justify the illegal governments.
It is also true that the judiciary could dispel the impression that the trial of only the Pakistan Muslim League-N (PML-N) leaders is being carried out on a fast pace. The courts could take up years old undecided cases like the one against former military dictator General (retd) Pervez Musharraf and Mehran Bank scandal. Former prime minister Nawaz Sharif cannot compare the case of Maulvi Tamizuddin, Begum Nusrat Bhutto and Zafar Ali Shah cases with that of Panama.
Nawaz Sharif's political narrative can sell if a strong perception is developed by the time of election 2018 that the PML-N leaders are getting conviction and the PTI is getting adjournments. This is exactly what happened from 1977 to 1988, when, on the one hand accountability of only PPP leaders was held while all others were treated as the innocent. It does not mean that what happened in Panama or Nehal Hashmi cases was wrong or what happened in Jehangir Tareen case was right. But, if nothing happens in cases like the one against Musharraf or in Mehran Bank, the question of selective accountability could surface.
Nawaz Sharif is wrong when he links the past judiciary with the post-2007 judiciary, from Justice Iftikhar Muhammad Chaudhry to sitting CJ Justice Mian Saqib Nisar. Sharif knows that the present judiciary is the result of a democratic struggle, led by he himself and the late Benazir Bhutto besides judges, lawyers and civil society. But, that does not mean that it should not have taken up cases involving the politicians or rulers who participated in the judiciary struggle.
Thanks to post-2007 judiciary that we are able to get judgments like the one in judges case, which buried all possibilities of any future martial law or the way judges resisted all kinds of tactic adopted to suppress udiciary including Nov-3 emergency.
Can any politician or former premiers on trial could even think of doing what happened with Musharraf, when he was taken to hospital instead of producing in the court. Had anyone faced any contempt proceedings in that case? Later on what happened only years after that the SC, in Asma Jillani case, declared martial law of General Yahya Khan as illegal, the SC twice legitimised martial law and the military rule of General Zia and General Musharraf.
One must appreciate the strong message from Chief Justice Mian Saqib Nisar of safeguarding democracy, that he would not be sitting on ‘this chair' if democratic system is derailed. This is something very reassuring from the head of an institution, whose past is not something we should be proud of. So, we need to support the independence of judiciary even if some verdict goes against politicians.
So, in a way what former prime minister Nawaz Sharif is saying for the institution building to safeguard democracy is what the chief justice has also said. The only difference is that at present Mr Sharif is critical of its role in post-Panama case and not ready to accept his disqualification, while Justice Saqib Nisar's statement buried all kinds of speculations of any interim government.
As far as Sharif's demand for setting up a high powered commission to look into judicial history, from Maulvi Tamizuddin to Panama, is concerned, he should take the lead and ask the PML-N government of Prime Minister Shahid Khaqan Abbasi to set up such a commission, comprising senior jurists and members of civil society. If nothing else, at least we will be able to correct our historic wrongs.
However, if we really want to correct the historic wrongs, it is also important to have another commission to address the role of both military establishment as well as those politicians who, from time to time, welcome dictatorship and become its partner as well.
It is the dilemma of our political elite that in the last 70 years, it remained part and parcel of undemocratic system, except for few. They not only accepted but also participated in dictator's hand-picked systems like basic democracy, non-party based elections and Majlis-e-Shoora, and accepted the amendments, made by them.
It is not the judiciary which accepted Legal Framework Order, LFO and it is not the judiciary, which struck a deal with dictators like National Reconciliation Ordinance (NRO) or welcomed dictators like Ayub Khan, General Ziaul Haq or Gen Musharraf.
Mere criticism of the judiciary or the SC or of a few judgments would not make democracy strong nor Pakistan need or afford any new ‘social contract’. Politicians must look for solution within the Charter of Democracy (CoD), provided all parties are ready to accept it.
What is presently going on prior to March-3 Senate elections will not make democracy strong and there is no role of judiciary in it. If the upper house of the parliament is formed on the basis of horse-trading, what one can expect from the lower house. Let free and fair elections take place in July or August, 2018 and all must accept its results.
The writer is the senior columnist and analyst of Geo, The News and Jang.
Twitter: @MazharAbbasGEO
