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Legal Eye

June 14, 2008

The audacity of hope


June 14, 2008

The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School

This title borrowed from Barak Obama's book aptly captures an exceptional quality of hope: its willingness to challenge established norms, conventions, and the status quo. Hope with all its audacity is what the rule of law movement has given Pakistan. It is only hope that can convince citizens – be they lawyers, students or civil society activists – to travel all the way from NWFP, Sindh, Balochistan and Southern Punjab to Lahore and Islamabad in scorching heat to fight for justice. This movement is epochal and unique for never has the world seen people with means of subsistence as modest as in Pakistan roused and driven by a goal that promises them no direct tangible benefits.

In the initial phase of the lawyers' movement it was being argued that the pro rule of law argument – that the Constitution provides for and protects the fundamental rights of citizens and if the Constitution is molested it creates a personal stake for all citizens – was too sophisticated to resonate with the average citizen. This claim ignored the fact that the idea of justice resonates with ordinary people because all humans have an inherent sense of it. To use US Justice Antonio Scalia's example, make a rule in your house that kids cannot watch TV after a certain hour, and then force all of them to retire to their rooms at the given time while allowing only one to continue watching TV against such rule. Riots might break out in the house, as the discriminatory implementation of the rule by parents would offend the fundamental conception of fairness of even their own kids and create resentment.

The twin contributions of the 15-month long rule of law movement have been this: one, it has provoked the sense of fairness of the Pakistani nation along with waking them up to their right to demand justice; and two, it has empowered ordinary people with the will

to come out and fight when they believe they are being wronged. Educating people about their rights and about how virtues of rule of law can trickle down to improve ordinary lives, and shaking up the nation out of its sense of resignation to overt acts of injustice are the long-term gains produced by this movement that cannot be reversed irrespective of its success with immediate-term goals. The immediate goal of the march is to get the dysfunctional judges restored to their Nov 3 positions. But while pursuing this worthy goal, we must also acknowledge the less obvious yet substantial benefits of the long-march.

Notwithstanding accusations that the long-march could threaten a nascent elected government, this street movement is actually strengthening participatory democracy by galvanizing cities and towns across Pakistan. In its first phase, the lawyers' movement organized protests outside the Supreme Court, literally to pressure the court to do the right thing. We heard the criticism then that lawyers despite being vanguards of rule of law and officers of the court are attempting to disrupt and influence the proceedings of the apex court. To be honest, they were doing exactly that. But their pressure was intended to function as a counter-weight to the pressure of unrepresentative forces of the state that have continued to coerce the court into submission for the last 60 years. The strategy worked and for the first time in this country's history the court gave a judgment that undid a dictator's unlawful action while he was still holding the reigns of power.

Similarly, now, rather than weaken the parliament, the long-march is designed to empower it with the required moral authority and popular support to stand-up to the non-democratic forces that are preventing the legislature from endorsing and reflecting the popular will. The parliament can grasp this opportunity by responding positively to the demand of the people who make it sovereign and unfasten the shackles that reduce it to a rubber-stamp function.

Let us turn to other related criticisms/suggestions based on flawed premise. One, a repeat of the minus-three formula (unfortunately also propagated by Ayaz Amir) that Chief Justice Iftikhar Chaudhry should also resign along with General Musharraf and Justice Dogar, to seek a resolution of the judicial crisis. And two, that Aitzaz Ahsan should choose between the lawyers' movement and the PPP, and resign from the party if he is opposed to Asif Zardari's position on the restoration issue.

Chief Justice Chaudhry should not be asked to resign for many reasons, irrespective of whether or not people find him likable. First, the lawyers' movement sprung from his unconstitutional dismissal by the general on March 9, 2007. General Musharraf used all the power at his behest to intimidate and coerce the chief justice and yet he refused to buckle under pressure. That defiance established that individual judges could muster the courage to resist the coercion of the executive and thus ignited the hope for an independent judiciary. CJ Chaudhry's resignation will establish that notwithstanding public acclaim and respect, the end result of asserting independence is loss of judicial office.

Second, the judicial process produces winners and losers. If people are wronged by the state or by fellow citizens, they have the option to knock on the doors of justice to redeem their rights. At such time the justice system is obliged to make a determination of legal entitlements as opposed to forcing the aggrieved party to settle for a compromise. Crimes and felonies reflect ugly social realities and it is often tempting to look the other way instead of confronting the rot. We hear of raped women being killed or encouraged to commit suicide to save the family reputation or tribal justice being meted out with the family of the rapist being required to marry a daughter into the family of the raped. Such iniquitous acts and compromises justified in the name of honour and reconciliation only perpetuate injustice. CJ Chaudhry has been the victim of illegalities committed by the general. And yet we wish the victim to pay for the sins of the perpetrator in the larger national interest!

Then there is the issue of how 'political' CJ Chaudhry has become. The expectation that judges must speak only through their judgments is a legitimate one. But what should they do when they are illegally locked out of their courts and chambers? If they hold their peace and silence, they are history. If they protest and appeal to the collective conscience of the nation, they are 'political'. What options are we giving them and are they fair? Further, let us remember that most judges have partisan affiliations before they are adored with judicial robes. Once elevated as judges they are expected to transform their lives in accordance with the judicial code and they do. Once restored, the deposed judges will need to rise to the challenge of treating their supporters and detractors all the same. But on that ground, aren't the PCO judges confronted with the same challenge? Why single out the deposed judges then?

And finally, there have been suggestions that Aitzaz Ahsan should resign his party membership because he is leading the long-march for justice that is predominantly against Asif Zardari's position on the issue of restoration. This is strange logic. A fundamental impediment to evolving a democratic culture in Pakistan is the autocratic nature of our political parties. These engines of democracy do not practice what they preach and apart from the occasional outburst of someone as daring as Makhdoom Javed Hashmi, no one within our mainstream parties emphasizes the imperative of internal party democracy.

Consequently, the hierarchy and decision-making processes of our political parties remain authoritarian and when a second-tier leader falls foul of the party head, his available options are (a) to create a new party, (b) turn his coat and jump ship, or (c) quit politics. The mere demand that Aitzaz Ahsan quit the PPP if he disagrees with Asif Zardari's approach to restoration is proof that our expectations of acceptable political conduct are being informed by a culture of authoritarianism that shuns dissent. We just saw the end of the primary season in the United States where Barak Obama and Hillary Clinton were at each other's throats while seeking the democratic nomination. Now that Obama has won the ticket, should Clinton be required to ditch the democrats and create her own party?

Aitzaz Ahsan has so far resisted the temptation to step outside the fold of PPP to set up his own political shop. That decision, together with his continuing disagreement with the party boss who lounges on an inherited throne, actually bodes well for the future of PPP – only if senior party members have the courage to spurn sycophancy and the party leadership has the sense to embrace dissent.

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