Mr Nawaz Sharif has rejected the judicial commission set up by Benazir Bhutto to investigate Mehrangate. This, despite the fact that the opposition had demanded precisely such a commission some weeks ago. Mr Sharif thinks that all judicial commissions are a hog-wash. This, despite the fact that while he was prime minister he set up a commission to probe the Coops scam and another one to examine the circumstances leading to the death of General Asif Nawaz. Mr Sharif has changed his mind because, he says, he has no confidence in the impartiality of the judges.
This line of thinking would suggest that politicians have a low opinion of judges. When in power, they have a vested interest in applauding the judiciary because they believe it can be suitably bent to suit their political purposes. When in opposition, however, the same judiciary is said to be tainted because the boot is on the other foot.
Unfortunately, such cynicism may not be altogether misplaced. The role of the judiciary in political decision-making continues to be highly controversial. Despite some good decisions in the normal course of their purely legal work, a number of Chief Justices of the Supreme Court, like M. Munir, Anwarul Haque, Afzal Zullah and Naseem Hasan Shah, ended up as caricatures of justice when they began to dabble in extra-judicial matters.
Nor have many senior judges always behaved with the propriety expected of them. Justice Mohammad Mushtaq of the Lahore High Court was notorious for his threatening postures in court. Justice Zullah’s histrionics sometimes reduced the courtroom to a theatre of the absurd, as for example during the abortive trial of General Aslam Beg for contempt a couple of years ago. Justice Shah’s wisecracks in and out of court often served to betray his bias. The personal failings of these judges were compounded into national tragedies when each one blithely walked into the eye of a political storm and failed to acquit himself honourably.
Respect for the judiciary began to decline rapidly under the martial law regime of General Zia ul Haq. The trial of Mr Z A Bhutto has gone down in the annals of history as an extraordinary travesty of justice. The Provisional Constitution Order of 1981, under which all but a couple of senior judges agreed to take a fresh oath of office to uphold the hypocritical and dictatorial new order, is an irredeemable black spot on the face of the judiciary. The decisions of the Supreme Court upholding the Presidential ouster of Benazir Bhutto in 1990 and denying the dismissal of Nawaz Sharif in 1993 are transparent examples of judicial contradiction. How can pride exist in the midst of such prejudice? The higher courts of Pakistan are packed with gentlemen appointed during the martial law years when an exceptional form of pressure politics held sway. In terms of competence and eligibility, therefore, not all of these judges may have necessarily deserved this honour and some may not have acquitted themselves as well as the others.
It is in this context that we ought to view Ms Bhutto’s recent appointments to the supreme court. These have drawn some flak because she has broken with two conventions or traditions (called “principles” by her detractors) in the Supreme Court. She has not elevated the senior most judge to the chair of the chief justice and she has added two retired judges to the bench. Her critics say that her decisions smack of bare-faced political interference.
But there is more to it than that. The fact of the matter is that Ms Bhutto is well within her constitutional and political rights to make changes in the judiciary. She has also broken two traditions, neither of which is especially time-“honoured” or particularly endearing, considering the quality of the chief justices thrust upon this country by autocratic Presidents from Ayub Khan to Ghulam Ishaq Khan. In the trade-off between a convention or principle which has rarely provided good leadership to the Supreme Court in the past and a constitutional option which might conceivably provide greater stability to the country in the future, Ms Bhutto has done absolutely the right thing.
Justice Sajjad Ali Shah, the new chief justice, has turned out to be a man of profound judicial wisdom and foresight. Wisdom, because he knew the difference between interpreting the constitution and legislating the constitution in the crisis of May 1993. Foresight, because he didn’t make the mistake of confusing the political with the constitutional nature of that crisis (like the rest of his colleagues) and boldly voted in favour of new elections.
How the judiciary fares in the future will depend on three factors. Ms Bhutto must fill the vacancies in the high courts with men and women of proven integrity and professionalism. She must not recourse to the special courts for political objectives. And the judicial commission set up by her to investigate Mehrangate must reveal the whole truth and nothing but the truth. If she is unable to deliver on her promise to strengthen the judiciary in time to come, we will all be the poorer for it.