Dispensation of Justice is the Main Pillar of Democracy

No country can ever think of establishing a representative democratic rule unless a free and independent judiciary is ensured. The three constitutions, framed in Pakistan, proved to be just pieces of paper; their sanctity has been unashamedly and frequently violated by the men with guns, and even by those who authored and approved these documents. The constitution of a country is a living and vibrant document that determines the future direction of the nation, provided there is respect for the document and rule of law. In a bona fide democratic set-up, the electoral process ensures the dominance of the people over those who hold political offices. If elections empower an authoritarian ruler (as was the case in 2002 in Pakistan), it will itself be a negation of democracy. Despotism, repression, fascism, totalitarianism, oppression, tyranny, denial of free access to justice, curbs on media freedom are all antonyms to democracy. Since authoritarian rule can only be checked through a strong and independent judiciary, dispensation of justice is a sin qua non for democracy.

It is unfortunate and disturbing that in Pakistan no government has allowed the judiciary to work independently. On the contrary, physical attack was made on the apex court and judges were selected on purely political grounds. In recent months, the acts of unconstitutional removal of judges, their detentions and espionage through agencies further proved that rulers of the day are irked by the rule of law and an independent judiciary. Practically, every ruler in Pakistan has created impediments for the judiciary in utter violation of well-established axiom that dispensation of justice is the main pillar of democracy.

Democracy as understood in the classical theory and truly practiced in the world embodies some vital elements that are: fair and just electoral process, sovereignty of parliament, separation of powers and independence of judiciary, public accountability and rule of law. Elections alone cannot guarantee these elements, especially when held under emergency, controlled and manipulated by a dictator. Those at the helm of affairs must realise that democracy is not electioneering per se. At the heart of the concept of democracy is the assurance for the citizens that their affairs are going to be managed by a 'Responsible Government'. If we analyse the Pakistani scenario in the light of the above basic principles, there will be disappointment and frustration. Since the death of the Father of the Nation, Quaid-e-Azam Muhammad Ali Jinnah, no government in the country qualified as 'Responsible'. The blatant violations of rule of law on the part of civilian and military rulers alike negated the establishment of a democratic structure in the country. It is tragic that even after 60 years of its existence, the State is looking for 'representative and sustainable democracy'.

The call given by the Father of Nation, in his first speech to the constituent Assembly, was totally ignored by various governments that followed, simply because that did not suit their political ends __ as they made every effort to push this country into a cruel, undemocratic system. Of course, the Pakistan that the founders had visualised is still not complete. Today, the nation faces the same challenges as were under the foreign rule, the main idea behind the independence was to have a freedom, rule of law and justice. What is required is certainly a ceaseless struggle for the restoration of democracy, which is not possible without an independent judiciary, and its consolidation and progress. The conduct of each government since 1948 was to waste public money, push the people to international debt enslavement and mercilessly flout all rules and laws. So if we failed to have a constitutional rule or a responsible Government today, it is not surprising at all.

In the wake of imposition of emergency on November 3, 2007 and brutal use of state machinery to crush and gag any defiant voice, there is a need to initiate a national debate to find out why the larger part of our history has been moulded by repeated constitutional hiatuses, prolonged through conspiracies and chicanery, and sustained whenever necessary by the political use of religion, resorting to a self-styled defence of ideological boundaries of the country and self-assumed definition of “national interest�. No doubt all this ultimately has led this nation to hardhearted intolerance. We must analyse the causes behind the present chaotic situation and then through national consensus and reconciliation try to establish a true democracy, which is not possible without a free and independent judiciary. In any society, administration and dispensation of justice should be the top most priority as without it ‘representative democracy’ cannot be established. A society without a trustworthy and speedy judicial system, which does not ensure effective dispensation of justice, cannot survive for long. The treatment meted out to judges of higher judiciary in recent months is no doubt the most lamentable and dark chapter of our history.

The right of access to justice to all is a well-recognized inviolable right enshrined in the Constitution of Pakistan. It concludes “the right to be treated according to law, the right to have a fair and proper trial and right to have an impartial court or tribunal. Justice therefore can only be done if there is an independent judiciary which shall be separate from all clutches and controls. The rule of law embraces at least three principles. The first principle is that the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power. The second principle requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order. The third principle requires that the relationship between the state and the individual be regulated by law.

Nobody possesses an authority to deny constitutional guarantee of free access to justice to citizens? Even a military dictator, who usurps power by abrogating the constitution, cannot deny this fundamental human right which is endorsed by the international community through the UN Human Rights Charter. He may get certificate from Bush that “he believes in democracy� (sic) but his denial of free access to justice is simply unpardonable. Undoubtedly, administration and dispensation of justice in Pakistan has been a complete failure and, therefore, democracy has never taken its roots. This is the time that all political parties, media people, intelligentsia and representatives of civic society should act collectively and resist the anti-people, obscurantist and anti-democracy forces that are bent upon to destroy this country.