Why the West cares little about the reinstatement of judiciary

It has not come as a surprise that United Kingdom as well as United States have failed to date to support the demand for the restoration of judges of the superior courts. This is so notwithstanding the high level of ‘democracy’ and ‘rule of law’ in both the countries where judges are symbols of upholding these notions and custodians of the rights of the people arising therein.

There are several main reasons for this anamoly when it comes to advocating these notions in Pakistan from both the U.S. and U.K. which are common and shared as U.K. interests are often seen to be interwined to those of the U.S. in this country. Firstly, and the more commonly known, is the Musharraf factor. President Musharraf, owes his presidency to the removal of the ‘judges of conscience’ who would have said the obvious and declared him ineligible to hold the presidential office whilst remaining chief of army staff as well, as he then was. This would have, in effect resulted in loss of power in his person, who is a self-professed ally of the West in every sphere be that in the domestic field or foreign affairs. The U.S. and the U.K. believe, which is in part due to Musharraf’s actions nevertheless, that post-Musharraf Pakistan is too uncertain to be risked for the sake of ‘democracy’ and ‘rule of law’.

Secondly and quite importantly, an independent judiciary threatened to end all illegal executive actions of Musharraf and his followers in the establishment which would have included the very infamous detention of Dr. Abdul Qadeer Khan, considered to be unconscionable and unjust by many. This would have been possible as reports suggest that Dr. Khan was considering moving the apex court against his detention and house arrest and it is likely that in the absence of a law sanctioning such detention (which is non-existent to date) he would have been set free. This would have enraged the U.S. as it considers Dr. Khan as its worst nightmare, if free as already his role in nuclear proliferation in Iran and North Korea has caused the country embarrassment. The issue is very sensitive to the U.S. and cannot be ignored. Additionally, a free Dr. Khan would have posed the danger of opening the Pandora box of nuclear proliferation and it is likely that some high profile names from the army or intelligence would have been exposed who may have benefited from such cash for nukes deal (designs and blueprints as opposed to ready-to-use bombs). It is considered by many unlikely that the metallurgist would have been able to sell the secrets to a foreign country without active participation or assistance of other figures who wish not to be exposed now for their role in the proliferation.

Thirdly, an independent judiciary would have also persisted with enforcing the rights of ‘missing persons’ to be with their families and not be confined in an arbitrary manner in the way they are presently. As a necessary corollary, any handing over of Pakistanis to the U.S. where they often end up in the notorious Guantanamo bay, would have been checked and the exercise stopped. Natural justice demands that all Pakistanis be treated according to the law of the land and the government be restrained from just ‘banishing’ such citizens to ‘land of hell’ in an arbitrary manner to receive personal ‘bounties’ as well as remain in the good books of the United States. The U.S. government, although being checked by the judiciary of late, has been consistent in violating its own laws in this regard and has tried to avoid the jurisdictional issue by placing persons under its control in captivity in Guantanamo bay in violation of all rights of POWs subject to all forms of torture and degradation. However, the U.S. Supreme Court is set to take the U.S. government to task over this as it has already reached landmark judgments on the issue and is set to decide on another important case this year. However, the U.S. government would be quite content and in fact pleased with any country like Pakistan which has no such active Supreme Court to block the extradition of its own nationals to it to be put in Guantanomo bay.

Fourthly, an independent judiciary would have derailed the process of reconciliation sponsored by the West between the Musharraf regime and late Benazir Bhutto which culminated in the issuance of the National Reconciliation Ordinance. Needless to say, as already pointed out many times before by analysts, such a discriminatory piece of legislation would have failed the test of ‘equality before the law’ and would have been declared illegal by the ‘judges of conscience’ as was being predicted earlier in the pre-November 3 hearing of the case. However, now as things stand, the hearing of the same case has been put off for the last week of February, thus allowing the authorities to enforce the fulfillment of the deal by Mr. Asif Ali Zardari post-elections. It goes without saying that any deviation on his side may result in the NRO being struck out altogether and the reopening of certain files that Mr. Zardari may not be content upon.

Finally, an independent judiciary is necessary for the accomplishment of democracy. However, as opposed to the public policy enunciated by the U.S. in favour of democracy, it shall be more than pleased that a sham one exists in the absence of an independent judiciary which allows it to avoid the restrictions of public perceptions in Pakistan and do what it wants in U.S. national interest, extracting the maximum price from countries such as Pakistan.
These inherent contradictions are only some, which help explain why the U.S. and U.K has not expressed a single word of condemnation for Musharraf’s act of November 3 which led to removal of more than 50 judges of this country. Why else would they put pressure on the government for ‘free and fair’ elections yet not insist for an independent judiciary (which seems possible only through reinstatement) which is necessary for free and fair elections and the road to democracy?

It is hoping against hope to expect for the aforesaid reasons that any summersault on the issue is expected. The best one can hope for is that the process is reversed by any means possible. Although it rests on the shoulders of all political parties to correct the situation or to try to correct it, vested interests of Mr. Zardari of PPP makes him hostage to the situation. In the absence of any other mainstream political party, PML(N) remains the only party where all hope lies. However, unlikely to secure a clear cut majority it seems a Herculean task at the moment but in the event we are able to achieve it, Musharraf would be proved wrong when he said that the environment of this country is neither apt nor suitable to adopt the libertarian principles of democracy and rule of law that the U.S. and U.K has inherent in its system and which allows it to be placed amongst civilized nations.