PAKISTAN: Independent judges treated as a threat to national security of the country

As the independence of the judiciary in Pakistan is being treated by the military as a threat to national security 55 judges remain un-constitutionally retired out of which 13 are from the Supreme Court. Eleven out of the 55 are still under house arrest and several senior advocates are also under detention. Their love for the rule of law and their insistence on the independence of the judiciary has lead the regime to consider them as enemies of the state. However, the protests created by all these actions have in no way diminished. The 31st January has been chosen by the lawyers as ‘Iftikhar Day’ and the protest will be held all over the country against this tremendous repression of the judiciary, the legal profession and the rule of law in general.

President Musharraf has very clearly stated that these judges need to be suppressed in order to achieve what he refers to as democracy. Though what he says may seem, at first glance, as ludicrous, still his conception of democracy needs to be taken seriously and examined closely. As he talks plainly, it is not difficult to see his scheme for the future of Pakistan. It must be a place where the president, as the chief executive, should be able to act unhindered by any other agency of the state, or for that matter by any forms of restrictions on his power. His vision can be put simply as achieving absolute efficiency by the use of absolute power by the chief executive. He and he alone must be the state. It is no exaggeration to compare his vision with that of Louise XVI of France who said, “I am the state.”

In the president’s view these judges are a bunch of presumptuous fools who have failed to understand that their duty lies in demonstrating absolute loyalty to the president. They have also failed to understand that when they do not show such absolute loyalty they are in fact destabilising the state and the country as a whole. Judges, when they are demonstrating their loyalty to the president, may have to incur displeasure from the public. But in the contest between the interests of the public and that of the president it is Musharraf’s view that the duty of the judiciary is to hold the balance in favour of the president. The people may have grievances, such as having to suffer forced disappearances of their family members. The public may also have to suffer naked aggression into their private properties and earnings. All these, according to the regimes philosophy, should not be matters that the judiciary should concern themselves with at all. The price to pay to maintain stability in the way it is understood by the regime is for the judges to stomach these things and find suitable ways to ignore all such demands.

The same is true about pressure. The lawyers may bring pressure on the judges to uphold the law or even the constitution but the president, for what he considers to be the best interests of the nation, has abandoned the constitution. From the judiciary it is expected that they would have “political wisdom” to abandon all talk about the constitution. When the contest is between the constitution and the president the regime expects the judges to hold in favour of the president. Militarism and constitutionalism cannot coexist. Therefore the president thinks it is his duty to rid himself of those elements of the judiciary who are incorrigibly attached to constitutionalism. In the view of the regime constitutionalism is a mindset that has to be done away with and replaced with a mindset that understands how important the president, his way of thinking, and his way of doing things, are for the nation.

As this view of things could not be carried out with the 55 judges who have now been forcibly retired, he has now replaced them with new judges who are expected to understand this philosophy of the president and to faithfully execute it. The new judges are expected to bury all fancies and notions about constitutionalism and all irrelevant talk about rule of law. They must obey and in doing so they will be able to bring stability to the nation. That is what president Musharraf expects of them. Musharraf is serious about being an absolute dictator and calls such a dictatorship ‘democracy.’ Without dealing with him, which means opposing him for what he really is, to make mild criticisms of him is a waste of time. When a super power tries to create the impression that he may be an instrument that can bring about democracy, it in fact hides its own strategy to support the dictator, even when it very clearly implies the death of an independent judiciary and repression of all those who demand reforms.

Document Type : Statement
Document ID : AHRC-STM-020-2008
Countries : Pakistan,