I want to share the following very interesting article by Aitzaz Ahsan, which sheds some light on the thinking of people of Pakistan that has evolved over a long period of times (over thousands of years). I am also putting this in my “to-do” list to discuss my theory for poeple of Pakistan have inherent democratic sense and have deep rooted desire of justice. But for the time being let us read this very important article.

Source: http://www.thenews.com.pk/powerofno/p1.html

Some lessons of the lawyers’ movement

The Chief Justice and his independent colleagues were uprooted in November 2007. In response the lawyers spearheaded a brave and hugely popular movement. It led to the holding of elections and the ouster of General Musharraf. As a result the Chief Justice and his independent colleagues have now been reinstated.

Attitudes towards the Lawyers’ Movement have been varied. An overwhelming majority of the people have supported it. By the recent IRRI polls, as many as 83% Pakistanis wanted the CJP back. Many of those who vehemently opposed his return have had to eat their video-recorded words. However, they now claim, with some pluck, that they were always for his restoration. On the other hand the US and the West ignored the issue altogether to the point that though the Chief Justice and his school-going children were locked up inside the building of their house for five long months, none in the Bush administration uttered the faintest decibel of concern even for the children. That was perhaps on account of a mistaken perspective of Pakistan which the Lawyers’ Movement should, most likely, change.
The essential fault lay in that perspective. The Movement should disabuse everyone of the belief that Pakistan is a Middle-Eastern Arab Muslim state. This perception was formed in the 1950s when Pakistan was persuaded to tie the knot in the Baghdad Pact and today it continues with grievous consequences. The Baghdad Pact (later CENTO), was a part of the policy to encircle the Soviet Union. But the more significant aspect for us Pakistanis was that the Pact bonded Pakistan, essentially, to a set of Middle Eastern states. This was fully in line with the US perception of Pakistan as a Middle Eastern Muslim state. This is what we are not.

Pakistan is no doubt a Muslim state. But it is neither Arab nor Middle Eastern. It is a South Asian state. The implications of that have not, alas, been properly understood.

Being of South Asia, Pakistanis are wedded, besides cricket, to the idea of an independent judiciary. The Arabs have none, nor as much as a desire for it. Pakistanis cherish and embrace the concept. Even though all of them may not be aware of the actual names, they invoke, in routine, the remedies of habeas corpus, prohibition, mandamus and certiorari. They rejoiced in the CJP’s resort to these jurisdictions suo moto. South Asians aspire for due process. That is the Pakistani citizen. Anyone who underestimated the Pakistani’s urge and commitment to the concept of an independent judiciary has thus been perceived as an adversary.

There is no doubt that the South Asians also embrace democracy. And the Lawyers’ Movement had no cavil with that. We did not want to weaken the edifice of democracy or disrupt its process. We wanted in fact, the completion and consolidation of that edifice and process.

To that end it must be understood that no democratic structure is complete, nor is it sustainable without the existence of an independent judicial system peopled by fearless and independent judges. That is axiomatic. Even India and Sri-Lanka are cases in point. Democracy has been sustained in both countries, as in the US, UK and the West, by an independent and fearless judiciary. It was indeed in the democratic Government’s own interest to re-establish the independent judiciary. And that could not be done without the re-induction of the independent-minded judges with dignity and honor. That was what I was pleading all along with my Party colleagues. That is what has been conceded now.

In another aspect too, the concept of ‘democracy’ was given a narrow meaning by the opponents of the restoration. They argued that the people had voted in February last year. As a result of which a Parliament was in place. It is now time to let it do or not do its job. What is left is to wait for February 2013 for the next elections and vote the Government out.

Democracy however, does not mean the mere casting of the ballot once every five years with no enforceable rights in the intervening periods. Democracy means the complete system consisting of periodic franchise as well as enforceable rights at all times guaranteed by clean parliamentary as well as judicial processes. Bare ballot democracy must be distinguished from full constitutional democracy. This important lesson was also imparted by the Lawyers’ Movement. It was particularly necessary for another reason.

Pakistan and its neighborhood are, alas, the theater of not one but several different wars: Afghan Taliban fight against perceived NATO occupation, FATA Taliban fight the Pakistan Army in perceived sympathy with the Afghan Talibs, Swat Taliban are a social insurgency seeking to impose a medieval dogma, Sectarian terror groups (shia/sunni, or anarchic) strike at points of their choice and then there are the Kashmir-India focused militants. Finally there are also the insurgency in Baluchistan.

The secret is to find that one lowest common factor that may help in addressing all these. That factor, in my estimation, is the provision of due process and rule of law that was destroyed by General Musharraf, but has finally, after much resistance, been partially redressed by his successors.

The lowest common denominator is demonstrated in the irony that the Taliban themselves give nothing to the population they control. They do not build roads, bridges, hospitals or schools. In fact they blow all these up with impunity. They have blown up 200 schools so far and tens of bridges. What the Taliban do give is what to the mind of many locals, though not to our minds, passes as ‘justice’: even if it be rough and brutal ‘injustice’. Incredible though it is, that is the only Taliban ‘charm’ to many among the subject population. People actually petition their ‘courts’ even if these are convened in the open and under trees. It is all a question of the ‘justice system’.

Remember also that much of what is happening on the Pakistani soil is a social phenomenon that cannot be addressed with high-tech weapons alone. Nor can it be countered by cash and dole either. Nor indeed by capitulation such as the Swat deal.

It is a mind-set that has to be combated as well as changed. This challenge requires social engineering, more than military or economic responses (though these are also necessary and must be effectively and surgically undertaken with single-mined resolve). The issue is systemic and can only be countered with systemic solutions like the re-enforcements of civilian institutions. The re-installed judiciary has therefore to be respected and obeyed.

No doubt Pakistan needs to develop economically. But the restitution of the independent judges will not, at once, put an end to the load-shedding or provide jobs for all. However it is a fact, that, in the contemporary world nations do not grow on aid and dole alone. Kerry-Lugar Bill though a positive initiative, may not be a complete answer. We need private investment. And few investors venture where they fear that their contracts will not be enforced. These are the countries where the judiciary is not independent. The only exceptions, out of more than 150 investment receiving countries are China, Saudi Arabia and the UAE.

After much and costly delay an independent justice system has partially been re-installed in Pakistan. It was most urgently required. The fact that it will be presided over by a Chief Justice who has a high international profile and has been honored by such premier institutions as the American Bar Association, the NY Bar and Harvard will greatly help bring down the barriers in the way of investment provided that the Executive does not contrive to frustrate him and his judgments. That is crucial.

The earlier display of a negative attitude towards reinstatement does not bode well. The manner in which the then US and present Pakistani administrations jointly tried to underplay the CJP’s visit to the US last November was wanting in grace. He had gone there to receive Harvard law School’s Medal of Freedom previously granted only to Justice Thurgood Marshall and President Nelson Mandela. This was great news from an embattled Pakistan. It needed to be spread, celebrated and built upon particularly as it had behind it a popular sentiment in a theater of war. The Governments of both countries had an opportunity to highlight the real, moderate, liberal and enlightened face of Pakistan. Both, instead, co-operated to underplay the achievement of a distinguished Pakistani only because he was the Chief Justice a dictator had removed. Neither the Pakistani Ambassador nor any one from the State met him during his stay in the US. (He of course, did not seek any such interface). I am sure if he had been even an ordinary Indian citizen receiving such an honor the Ambassador of his country would have received him and conducted him around. This negative attitude has to be discarded.

The Chief Justice will have some challenges ahead of him. Two are particularly notable: the myriad composition of the Court and the pressure of public expectations. The first can easily be addressed on the basis of the precedent of the Supreme Court in the Al-Jehad or the Judges case (1996) as well as Article 209. The second can best be tackled by the Court in accordance with applicable law. Yet the test is of the executive: will it let and facilitate the law take its course without grudging the Chief Justice his authority to apply it? That is the real challenge.
Finally, the Lawyers’ Movement has emerged as perhaps the only progressive, moderate, democratic, non-violent, tolerant and above all plural and hugely popular movement in the entire Islamic world. It was sustained over two years despite police brutality and the cold and stench of prison floors.

The success of the lawyers has been the success of a peaceable and tolerant civil society. A success much needed in this region. It needs to be consolidated by willing and complete acceptance of this victory even by those high officials who fought them tooth and nail and only grudgingly conceded victory. Mercifully this conclusion came before the frustration of broken promises could force even this movement to concede space, won by it in the hearts and minds of the people, to the terrorist insurgent.