Carving order out of chaos
JUSTICE makes the boundary between peace and chaos and is, thus, prerequisite to stability and prosperity of a state.
Not only should the delivery of justice be inexpensive, standard and timely but decisions should also be made irrespective of the status and position of the parties involved. Only then the requirements of justice are met.
Despite we have evolved too far away from merely a simple society of the partition era, we have yet to undertake judicial reforms. The goal of providing justice to the people on their doorsteps remains unachieved.
Too, the workload on judges is so high that the cases pile up and justice is delayed. Lawyers give priority to wealthy clients taking advantage of the complexities in the law of evidence. Provision of justice to the weak and downtrodden is denied.
Decisions in civil cases are passed down through the generations. This is a common problem with the lower courts.
Due to the absence of a Constitutional Court, the apex court has to spend a lot of time in deciding political cases.
Those who have to amend the Constitution are simply not interested in reforming centuries old laws concerning crimes regulations.
Despite having many bouts of democracy, the status quo remains intact. This is what happens uneven societies and we make simply no exception.
In this backdrop, the statement of the Chief Justice of the Supreme Court that he is independent in his decisions and there is no pressure on him to discharge his duties is very encouraging for those who believe in democracy and democratic values.
It is to be hoped that an independent judiciary will play a key role in upholding fundamental rights and simultaneously ensuring political stability as the country’s political and military leadership pledges that institutions will operate within constitutional limits.
Those concerned with the justice system of the country and the way it works in the socio-economic environment like ours can find a lot in the biography of former Chief Justice Irshad Hassan Khan ‘Irshad Nama’.
This is the second edition published this year, which is a testament to the book’s popularity. The more than 300-page book has much to offer not only to those connected with the judiciary but also to those interested in domestic politics.
Born into a middle class family, the former chief justice recounts events from his childhood to his youth. He talks loudly about his aspirations, desires and dreams as well as difficulties coming into his way.
If luck smiles on him, he doesn’t forget to thank the Almighty. Irshad Hassan Khan took up the profession of advocacy and pursued it with a high degree of passion.
He doesn’t forget to mention those who helped him in his journey from a successful lawyer to the Chief Justice of the Supreme Court.
From the post of Chief Justice of the High Court to that of Chief Election Commissioner, Irshad Hassan Khan considers himself a principled lawyer and is that much proud of this identity.
Irshad Hassan Khan’s tenure as Chief Justice of the Supreme Court is no less interesting. General Pervez Musharraf had assumed power in the face of a decade of political instability and the ensuing economic crisis.
As he assumed the position of the country’s chief executive was talking about a comprehensive plan, involving constitutional, political and economic reforms, to get the country out of a difficult situation, the need and importance of which was being felt by people from all walks of life.
The opposition, which had been distributing sweets on the overthrow of the heavily-mandated PML-N government, soon started demanding fresh elections so that democracy could be restored and power could be handed over to the elected leadership.
Since Nawaz Sharif was in jail and his party was under stress, it was clear who would lead the next electoral battle.
In other words, if General Musharraf had joined hands with the PPP, the cases of corruption and serious crimes registered during the PML-N era against its leadership and supportive bureaucracy would have to be dropped.
It would have meant the end to self-exile of Benazir Bhutto, the life-long chairperson of the PPP and her husband out of a long confinement.
Obviously, the NRO was neither a solution to the country’s problems nor new elections without taking structural reforms.
What could be the role of the judiciary in these circumstances? While Nawaz Sharif was imprisoned in Attock Fort, his lawyers had approached the Supreme Court against his trial in a military court, imposition of emergency and dismissal of the PML-N government.
The then Chief Justice, Saeed-uz- Zaman Siddiqui, declared the case admissible but, afterwards, resigned from the post.
The question rose as to whether the civil courts would function or the military one. Irshad Hassan Khan emerged on the scene in this background.
Following the principle of seniority, he took oath of the Chief Justice of Pakistan under the PCO (Interim Constitution), with the determination that the judiciary must function if anarchy and military courts are to be avoided.
Meanwhile, Nawaz Sharif was deported under an agreement. Zafar Ali Shah’s case was right in front of the new chief justice.
Nawaz Sharif’s lawyers insisted on letting bygones be bygones and that the matters should move forward.
The case is decided after a long debate: General Musharraf should implement his reform agenda but he has the power to amend the constitution in this regard (as ordained in the PCO) only if there is no solution in the constitution.
As far as giving three years for holding the elections is concerned, the Election Commission had asked for two years to update the electoral rolls.
And so the case was settled. The court verdict was implemented and general elections were held as per his judgment.
The author complains that his decision in the Zafar Ali Shah case was not taken into account in the whole context and that he did not give Musharraf a freehand to amend the constitution but prevented him from doing so.
He is proud to have established the Judicial Academy, took interest in dealing with pending cases and insisted on the independence of the judiciary throughout his tenure.
—The writer is politico-strategic analyst based in Islamabad.
