Justice above politics

By Kunwar Idris
Pakistan is new neither to political unrest nor to economic crisis. But it is for the first time that both issues are peaking together, or more ominously, heading towards a stage where, some fear, the country might go broke and break up at the same time.
Those in power might be confident that this will not happen. While those in the opposition might not be so confident on this score, it is the anxiety of the citizens that runs much deeper. Their worries arise not because of feuding amongst the politicians, which is not uncommon in a democracy, but the fact that civil servants and judges too are joining in the feud.
Civil servants are no longer taken to be neutral nor are judges viewed as independent. The chief secretary and police chief of Punjab were both removed the moment Shahbaz Sharif ceased to be the chief minister, and at the swearing-in ceremony of 14 Lahore High Court judges (a staggering number) triumphant party slogans were raised.
The media reports that followed left no doubt that the consideration dominant in their selection was service to the party and not their standing in the profession. That, perhaps, is also an explanation for their ever-growing numbers. Those chosen for reasons of loyalty to a party would have to make a Herculean effort, if at all they are so inclined, to establish their credentials to be independent. The long-dragging campaign for the independence of the judiciary, centred on one judge, can be seen as producing results contrary to its aims.
It is an anomaly that while subordinate judges and magistrates are selected through the public service commission, the selection of judges for the superior courts is entirely in the hands of the politicians — the president, prime minister, law minister, governors and the chief ministers. At a time when a political storm is raging around the office of the chief justice, there is no need to recount the reasons behind the politicians’ need to have their own men in the superior courts. Judges who are beholden to the politicians for their appointment and also look to them for confirmation and elevation cannot be free from their influence.
It was a different matter when the selection lay with colonial viceroys and governors who were not politicians. Now it is hard to expect President Asif Zardari, or Nawaz Sharif for that matter, and governors Salmaan Taseer and Ishratul Ibad to appoint a judge, howsoever distinguished he might be in the legal profession, if he is perceived as being politically unacceptable. Could Athar Minallah (Iftikhar Chaudhry’s spokesman), for instance, ever be considered by the present government?
Whether or not the current campaign of the lawyers for the restoration of Justice Chaudhry succeeds, it will have no bearing on the independence of the judiciary unless the power to select, confirm and promote the judges is taken away from the politicians and entrusted to an independent body. Its composition would need detached consideration by legislators and the legal profession. However, all former judges and senior bar members should be involved in the selection process.
The neutrality of civil servants of all descriptions and more particularly of the police is no less (in fact, perhaps more) important than the independence of judges, for the simple reason that only the rich and privileged have the means to approach the courts to undo the wrong done by the executive. The expense is huge, and relief, if any, is long in coming. Accessible to an ordinary citizen are executive officials. The ordinary citizen has no option but to live with the wrong done to him if they refuse to help him out of fear of being dismissed or transferred.
At higher levels, every politician has his own pet officials. As Zardari became the president many whom Nawaz Sharif had sent home or driven into exile came back to fill important positions. Now it is the fate of Nawaz Sharif’s men who have been sidelined or laid off by the present government to wait in the wings while sulking.
The rules require the selection of all civil servants through public service commissions or departmental committees. These are expected to be independent but are not allowed to be so. The government can always find ways of putting pressure on or removing their chairmen and members because, unlike the judges, their tenures and terms are not protected by the constitution.
How civil servants can be protected against the vagaries of political governments and the vested interests of ministers is a difficult question to answer. Even if they are not dismissed they can find themselves in limbo. It is almost a rule that in every government, officials who do the bidding of the politicians in power last longer in their job and in the service than those who don’t. There are exceptions but the urge to have condescending rather than dissenting officials around is overwhelming.
The real hope for a neutral civil service lies in the politicians themselves — in their realising one day that such a service would be good not just for them but for the people too. No legal measure or moral haranguing has worked in the past, nor would do so in the future. If at all the chances are getting dimmer by the day.
Independence of the judiciary may be a burning issue today, but it is not a new one; it is only more pressing. To end this sombre essay on a lighter note here is what Sir Zafrulla Khan had to say in his memoirs when he practised law at the Lahore High Court in 1930s about Justice Bakshi Tek Chand whom he considered a jurist of exceptional ability:‘If parties to a litigation before him were Muslim on one side and non-Muslim on the other, the decision had to be in favour of the latter; if both parties were Muslim but one had a Hindu counsel and the other a Muslim the decision went in favour of the former; and if litigants were Muslim on both sides and so were their lawyers, the verdict had to go in favour of the party whose counsel in Justice Bakshi’s estimation was of a lower calibre than the other.’