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Another balanced and objective article published in the Dawn
The judge, oath and justice
By Kunwar Idris
THE authority of a court, an American judge Felix Frankfurter once famously said, ultimately rests on the public confidence in its moral sanctions. Is Pakistans Supreme Court still possessed of that authority after the agitation and arguments that have swirled around it for a year now?
This is a question that the legal community and the people at large must coolly contemplate.
Judge Frankfurter (1939-62) was an exponent of the doctrine of judicial self-restraint. He believed that the supreme court must defer to other branches of the state. In his rulings, he showed more concern for the integrity of the government than for the victims of legal injustice.
Our own judge, Iftikhar Chaudhry, has emerged as an exponent of judicial activism. He carried his concern for the victims of injustice to a point where other branches of the government felt their integrity was being threatened. Frankfurters judicial restraint did not stand in the way of his being recognised as a great judge. By the same token, Chaudhrys activism in itself doesnt make him a great judge. The essential ingredient of the greatness of a judge is his integrity. Other attributes can differ.
The moral sanctions of the court over which Frankfurter presided were never called into question. Can the same be said about the court to which Chaudhry may return to preside? President Musharrafs reaction to Chaudhrys activism was admittedly illegal and irresponsible. But more relevant to the moral authority of his court now would be the events that the presidents action let loose and the course they have taken since.
The issue central to this controversy is the dignity and independence of the Supreme Court. Under the pressure of conflicting political and professional interests, the focus has been shifting with every passing day from justice to politics. So much so that the committee constituted by the PPP and PML-N for reinstatement of the deposed judges and allied matters is considering judicial independence in the light of the limited contents of the Bhurban Declaration alone.
Mr Fakhruddin Ebrahim has walked out of the committee because he could not bring himself round to being a party to a formula which would let the judges who had taken the oath under the PCO continue alongside those who hadnt and were to be reinstated. The independence of the judiciary, thus, is being made hostage to legalism and politics.
The premise that the judiciary would become independent and its honour would be vindicated if the retired judges were to be reinstated is wholly flawed. Similarly, the proposal to expand the Supreme Court to accommodate the old and new judges would make it, like the cabinets of today, an arena of rival political interests instead of being a forum for justice for all citizens. It is this kind of conceptual disarray which has undermined the confidence of the people in the competence and integrity of the institutions of the state.
The follies of Musharraf and the lawyers anger both unprecedented in their magnitude had presented an opportunity to rid the judiciary of political control. Instead, the politicians are seeking to strangle it. In the hands of the legal profession, the cause of the judiciary is faring no better either. Stuck in the PCO/non-PCO grooves, lawyers are looking for a mechanism to get some judges in and others out or to let both revel at the expense of the taxpayer and the quality of justice. The sight of the basic aim of making the judiciary independent has been totally lost.
The oath taken, or not taken, under the PCO has become an all-consuming passion. But it is not a material, much less the only, test of a judges independence. After all, Justice Iftikhar Chaudhry, who had so resolutely led the campaign for an independent judiciary, too had taken the oath under the PCO in 1999. And then, he along with 11 other judges went on to validate the extra-constitutional intervention of the armed forces on the basis of the doctrine of state necessity and the principle of salus populi suprema lax. Unsolicited, the chief executive was further authorised to amend the constitution if it fails to provide a solution for attainment of his declared objectives.
The lawyers in the Naek committee need to break out of the PCO /non-PCO syndrome. Mr Farooq Naek should persuade Fakhruddin Ebrahim to rejoin and also invite some more lawyers and retired judges to participate in the deliberations. The expanded committee then should lay down the principles and procedure for the recall and removal of judges from the present lot and for all future appointments as well.
In the 2006 Charter of Democracy, Benazir Bhutto and Nawaz Sharif committed themselves to an independent judiciary and a neutral civil service. Their parties are now taking a self-serving and limited view of the independence of the judiciary and are acting totally against the neutrality of the civil service.
To Nawaz Sharif, judicial independence means little more than the reinstatement of the judges who had ceased to hold office under the November 2007 PCO and removal of those who were appointed under it. Asif Zardari seems to want to pick and choose from both lots and redefine their tenures. If their views prevail, the net result would be a judiciary which is more beholden to the politicians than independent of them.
Parliament should bind both parties down to fulfil their commitment in the London charter in its true spirit. The central point to note is that justice is in no manner linked with the oath. The neutrality of the civil service today is at greater peril than the independence of the judiciary. The civil servants as a class had ceased to be neutral long ago. Their extensive reshuffle in progress, quite obviously aims at helping the partisan and not the neutral among them.
The bureaucratic faces that had faded away have returned in full glow and those who strutted the stage have gone off it unsung. The legal community as a whole and the exertions of its fiery leaders, the likes of Aitzaz Ahsan, Ali Ahmad Kurd and Athar Minallah, have made the independence of the judiciary a living cause even if it remains elusive. Deprived of the support of such a large and dedicated cadre the cause of the neutrality of the civil service seems to have been lost for ever.
DAWN - Opinion; May 11, 2008
The judge, oath and justice
By Kunwar Idris
THE authority of a court, an American judge Felix Frankfurter once famously said, ultimately rests on the public confidence in its moral sanctions. Is Pakistans Supreme Court still possessed of that authority after the agitation and arguments that have swirled around it for a year now?
This is a question that the legal community and the people at large must coolly contemplate.
Judge Frankfurter (1939-62) was an exponent of the doctrine of judicial self-restraint. He believed that the supreme court must defer to other branches of the state. In his rulings, he showed more concern for the integrity of the government than for the victims of legal injustice.
Our own judge, Iftikhar Chaudhry, has emerged as an exponent of judicial activism. He carried his concern for the victims of injustice to a point where other branches of the government felt their integrity was being threatened. Frankfurters judicial restraint did not stand in the way of his being recognised as a great judge. By the same token, Chaudhrys activism in itself doesnt make him a great judge. The essential ingredient of the greatness of a judge is his integrity. Other attributes can differ.
The moral sanctions of the court over which Frankfurter presided were never called into question. Can the same be said about the court to which Chaudhry may return to preside? President Musharrafs reaction to Chaudhrys activism was admittedly illegal and irresponsible. But more relevant to the moral authority of his court now would be the events that the presidents action let loose and the course they have taken since.
The issue central to this controversy is the dignity and independence of the Supreme Court. Under the pressure of conflicting political and professional interests, the focus has been shifting with every passing day from justice to politics. So much so that the committee constituted by the PPP and PML-N for reinstatement of the deposed judges and allied matters is considering judicial independence in the light of the limited contents of the Bhurban Declaration alone.
Mr Fakhruddin Ebrahim has walked out of the committee because he could not bring himself round to being a party to a formula which would let the judges who had taken the oath under the PCO continue alongside those who hadnt and were to be reinstated. The independence of the judiciary, thus, is being made hostage to legalism and politics.
The premise that the judiciary would become independent and its honour would be vindicated if the retired judges were to be reinstated is wholly flawed. Similarly, the proposal to expand the Supreme Court to accommodate the old and new judges would make it, like the cabinets of today, an arena of rival political interests instead of being a forum for justice for all citizens. It is this kind of conceptual disarray which has undermined the confidence of the people in the competence and integrity of the institutions of the state.
The follies of Musharraf and the lawyers anger both unprecedented in their magnitude had presented an opportunity to rid the judiciary of political control. Instead, the politicians are seeking to strangle it. In the hands of the legal profession, the cause of the judiciary is faring no better either. Stuck in the PCO/non-PCO grooves, lawyers are looking for a mechanism to get some judges in and others out or to let both revel at the expense of the taxpayer and the quality of justice. The sight of the basic aim of making the judiciary independent has been totally lost.
The oath taken, or not taken, under the PCO has become an all-consuming passion. But it is not a material, much less the only, test of a judges independence. After all, Justice Iftikhar Chaudhry, who had so resolutely led the campaign for an independent judiciary, too had taken the oath under the PCO in 1999. And then, he along with 11 other judges went on to validate the extra-constitutional intervention of the armed forces on the basis of the doctrine of state necessity and the principle of salus populi suprema lax. Unsolicited, the chief executive was further authorised to amend the constitution if it fails to provide a solution for attainment of his declared objectives.
The lawyers in the Naek committee need to break out of the PCO /non-PCO syndrome. Mr Farooq Naek should persuade Fakhruddin Ebrahim to rejoin and also invite some more lawyers and retired judges to participate in the deliberations. The expanded committee then should lay down the principles and procedure for the recall and removal of judges from the present lot and for all future appointments as well.
In the 2006 Charter of Democracy, Benazir Bhutto and Nawaz Sharif committed themselves to an independent judiciary and a neutral civil service. Their parties are now taking a self-serving and limited view of the independence of the judiciary and are acting totally against the neutrality of the civil service.
To Nawaz Sharif, judicial independence means little more than the reinstatement of the judges who had ceased to hold office under the November 2007 PCO and removal of those who were appointed under it. Asif Zardari seems to want to pick and choose from both lots and redefine their tenures. If their views prevail, the net result would be a judiciary which is more beholden to the politicians than independent of them.
Parliament should bind both parties down to fulfil their commitment in the London charter in its true spirit. The central point to note is that justice is in no manner linked with the oath. The neutrality of the civil service today is at greater peril than the independence of the judiciary. The civil servants as a class had ceased to be neutral long ago. Their extensive reshuffle in progress, quite obviously aims at helping the partisan and not the neutral among them.
The bureaucratic faces that had faded away have returned in full glow and those who strutted the stage have gone off it unsung. The legal community as a whole and the exertions of its fiery leaders, the likes of Aitzaz Ahsan, Ali Ahmad Kurd and Athar Minallah, have made the independence of the judiciary a living cause even if it remains elusive. Deprived of the support of such a large and dedicated cadre the cause of the neutrality of the civil service seems to have been lost for ever.
DAWN - Opinion; May 11, 2008
