What judges can do for a nation
THE judiciary is supposed to serve as a protector of citizens' rights and as a deliverance tool for justice. Therefore, the judiciary is a guardian for a nation. It should stand guard against any violation of the fundamental ideas of the Republic laid down in the Constitution, as this document lays down the rules to protect rights and to govern the nation as per the collective will of the people.
The judiciary is seen in the international community as the vanguard of democracy. A former Cambodian Minister, Mu Sochua, described a similar viewpoint to many leaders and thinkers around the world by stating apprehension about the reversibility of democratic gains of developing states if the judiciary remained unresponsive to democratic principles. The key to avoiding such a dysfunctional state is the empowerment of an independent and ethical judiciary.
One of the main goals of the judiciary is to bring about better checks and balances in governance by becoming a 'watchdog' for the other two organs, thus 'barking' in the loudest voice to warn the nation of any wrongdoing.
However, some people think that in situations under military or authoritarian regimes -- in which judges are compelled to comply with an undemocratic agenda -- the best option is to stay in the professional positions and attempt to save values that can still be saved.
I totally disagree with such conclusions. I think that a resignation or any other stand against a wrong is a dictate of conscience. A judge cannot be a judge if he or she compromises on principles when facing a subversion of the due process of law.
Pakistan's Supreme Court [SC] has proven effective with a strategy of consistent confrontation against injustice, with occasional compromise when necessary. Within one year of the military coup in 1999, the Supreme Court ruled in the case of Zafar Ali Shah v. General Pervez Musharraf [in 2000] that even the military dictator cannot amend the Constitution in a manner that goes against the 'salient features' of the charter.
With this bold step began a relentless process of confrontations between branches of government, but also strengthened and popularised the judiciary among the Pakistani people. And ultimately, the Pakistani Supreme Court was instrumental in dragging down a military dictatorship in order to pave the way for democratic governance. The judiciary still remains relentless in its ability to change the landscape of the nation's politics -- by challenging its predatory elite class, by threatening its corrupt bureaucrats, and most significantly by taking steps to hold its army accountable for its actions.
While pursuing the agenda to fix a difficult country, Pakistan's Supreme Court remains largely and increasingly independent by keeping close ties and support with the Pakistani people. The judiciary maintains forceful networks of civil society organisations such as the Pakistan Lawyers Movement [PML] as well as activism both at the national and grassroots levels.
I believe that a moral stand, no matter how difficult at times, ultimately attains higher objectives in a society. It sets standards, establishes precedents, and inspires others to emulate and influence the mindset of a nation. History is a testament to the fact that great movements of change came about through the courageous and moral leadership of a few individuals.
Whether in the East or the West courts always played a key role in a socio-political change. If we want to avoid the examples of the western countries -- due to the dissimilarities in cultures, historical contexts and the developmental patterns -- where judiciaries were instrumental in bringing about major transformations we still have examples of judicial activism that helped to save self-rule and change society in less developed countries, such as India, Singapore, Mauritius, and Botswana.
Many scholars and experts think that verdicts given in the famous cases of Kesavananda Bharati vs State of Kerala in 1973 and Habeas Corpus in 1975 under the leadership of justice Khanna and his associates in essence saved Indian democracy by confronting the creeping one-party hegemony. These rulings established that an amendment that undermines or violates the fundamental rights laid down in the Constitution or violates its 'basic structure' would be considered unconstitutional. Had the Indian Supreme Court failed to act against the increasingly authoritarian rule of Indira Gandhi, India might have lost a genuinely democratic system.
Not only was better checks and balances restored in governance as a result of the verdicts, but also within six months after Justice Khanna and his associates resigned in protest against an offensive move by the Indira regime in 1977, the regime itself fell. Again, it is the trust and goodwill the court generated among the people that helped to defeat the most powerful and authoritarian administration in India since its independence.
Factors that promote an independent and effective judiciary
First and foremost, the leadership of judges -- such as of Iftikhar Muhammad Chaudhry of Pakistan and Khanna of India -- that demonstrates uncompromising integrity, courage, and determination to serve the country in whatever valid way it can remains imperative.
Second, the courts need the support of the people. Therefore, a close and dynamic network of civil society organisations, media and political parties is a must. The Pakistan Lawyers Movement [PML] has been an example of such activism. However, for these kinds of organisations to become a countervailing power they need to gain public trust and support. Therefore, they need to be indigenous, deep-rooted, constituency-based, self-organised, and self-financed.
Third, the court must not be politicised or polarised. There should exist unity on fundamental principles and values in the judiciary. The more united the judges remain on fundamental principles, the more powerful they become in handling pressures from undemocratic forces.
Conclusion
Facing a crisis or crossroads, responsibility rests on an individual as it rests on an institution to do whatever can be done to avoid costly and painful situations for a nation.
This responsibility increases with one's ability and power to make a difference. The judiciary of a country has enormous power to make a difference if it wills to exercise it to make a difference.
Bangladesh, as many international experts point out, has enormous potential. A rapid pace of development remains imperative to attain that potential for its 160 million people. A genuine democratic system can provide the due process and long-term stability that enable national focus, earn international confidence, encourage national and international trade and investment, and generate the momentum of change. Judges can play a vital role in creating national consensus and transformative political movements, thus moving our society towards democracy, prosperity, and most importantly, justice. Today, they are being called to rise up to face the challenges of our national predicaments and shortcomings.
The writer is Executive Director, US-based Muslims for Justice, Peace and Progress.
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