JURIST Contributing Editor Ali Khan
of Washburn University School of Law says that Pakistan's political parties should boycott the parliamentary elections scheduled for January and support Pakistani lawyers' more fundamental efforts to restore the suspended constitution and reinstate the superior court judges ousted by General Pervez Musharraf under emergency rule...
he lawyers’ movement in Pakistan - which by its courage has inspired the lawyers of the world to show solidarity for the rule of law - is on the verge of collapse. Political operators from all over the world have landed in Pakistan to share the spoils of a dying regime. Soon, the lawyers will be divided. Their ties with competing political parties will split them apart. And if major political parties participate in the January general elections, the lawyers’ movement will be buried alive in the filth of Pakistan’s politics.
Foreseeing these dangers, the Pakistan Bar Council has rightfully appealed to political parties to boycott the January elections and support the lawyers in their struggle to restore the constitution and reinstate the deposed judges.
The lawyers’ movement is not aimed at unseating a military ruler or paving the way for two former prime ministers to end exile, come home, and run for office. The lawyers have not forgotten the lawlessness, corruption, nepotism, and incompetence of former prime ministers. Former prime ministers were no champions of the rule of law. They too subverted an independent judiciary. They offer no more hope to Pakistan than does the unconstitutional regime in power. Therefore, the lawyers’ movement is not political. It is not even for democracy.
The lawyers’ movement was launched to restore and preserve two fundamental norms of the legal system: the rule of law and judicial independence. If these norms are compromised, Pakistan will remain an unstable nation in the foreseeable future whether its rulers wear military uniform, shalwar kameez, or pinstriped suits. Time and again, civil and military rulers have betrayed the people of Pakistan by letting the constitution crumble under real and manufactured emergencies.
Political parties obsessed with gaining power will happily tolerate a mangled constitution. They will also sacrifice the deposed judges for self-serving political deals. For lawyers, therefore, restoring the constitution and reinstating the deposed judges are far more important than holding general elections. The lawyers cannot ignore these clear priorities. Restore the Constitution
First, the lawyers demand that the constitution be restored. The constitution safeguards the rule of law. No legal system can function without commitment to the rule of law. No laws, not even good laws, are good if the rule of law is uncertain. No laws, not even bad laws, are bad if the rule of law stays intact. Only under the rule of law can good laws be preserved and bad laws overturned. When the constitution is suspended, the ruler’s arbitrary hand turns ruthless. History demonstrates that rulers who suspend the rule of law inflict more harm than do good. Rule of law, therefore, is no cliché. It is the foundation of a reliable legal system.
For most of its history, Pakistan has been unable to institute the rule of law. Civil and military rulers see the rule of law as an inefficient barrier to the supposed good they want to do for the people of Pakistan. Military rulers suspend the rule of law to create a militaristic culture where laws are ignored but orders are obeyed. Civilian rulers suspend the rule of law to create illegitimate space where friends and families enjoy a free hand in making money and distributing government jobs and contracts to cronies on the basis of connection rather than merit.
Dramatic subversions of the rule of law, such as the November Proclamation of Emergency, are not the exclusive crimes of the military regime. Political parties that occupied the national and provincial assemblies aided and abetted the suspension of the constitution. Politicians in collusion with generals have perpetuated arbitrariness. When a single man can change the nation’s constitution, suspend fundamental rights of life and liberty, and arrest the nation’s eminent lawyers without legal basis - while national and provincial assemblies were still functioning - the rule of law is thoroughly subverted.
Since the politicians out of power are no more credible than the politicians in power, the lawyers demand that the constitution be restored regardless of who is in power. First the constitution, then democracy. Reinstate Deposed Judges
Second, the lawyers demand that the deposed judges be reinstated. The lawyers make this demand not for any political reasons. Nor do they make this demand because the lawyers prefer judges who oppose the regime in power. Nor do they make this demand because they distrust the judges who side with the regime in power. The lawyers make this demand because no executive, let alone an army chief, must command authority to fire the high court judges en masse
If the deposed judges are not reinstated, future rulers too will have no respect for the judiciary. Too many times, the judges with conscience have been ignored and forgotten. Too many times, the judges have been forced to embrace the commands of willful rulers. Too many times, the constitution has been suspended because the usurpers know in advance that the judges can be compromised, intimidated, detained, fired, and sent to oblivion.
This time, the lawyers refuse to accept the degradation of the judges. They demand that the deposed judges, who declined to accept the suspension of the constitution, be reinstated. They demand that the dignity and independence of judges be restored.Lawyers’ Commitment
The lawyers’ commitment is transparent and candid. An independent judiciary cannot be separated from the rule of law. No nation can enjoy the rule of law without an independent judiciary. And no judiciary can be independent without the rule of law. Therefore, the lawyers of Pakistan cannot support the holding of the general elections unless the constitution is restored and the deposed judges are reinstated. Ali Khan grew up in Pakistan and is a law graduate of Punjab University, Lahore. He is currently a professor at Washburn University School of Law in Kansas. His publications are available here.