Justice and Democracy

And independent judiciary is a prerequisite

of pure democracy

by IKRAM SEHGAL

Democracy and Justice may not be Siamese Twins, in a manner of speaking they are inseparable. A democracy institutionalises accountability by the people, vitally necessary for enforcing the laws of the land. The basic responsibility of governance is integrity and impartiality, requiring a concerted effort by whoever is the ruler, whether a dictator or, in the case of democracy, legislators and the judiciary, to ensure implementation of the rule of law. Even a dictator with the sincerest of intentions can have his will subverted by minions with personal agendas of their own. In the purest of democracies this can be waylaid by vested interest. An independent media monitors and force-multiplies the process of transparent enforcing of the rule of law by keeping it in the public eye.  The ultimate onus for ensuring implementation falls on the superior judiciary. Unless really independent, and with the courage to take decisions on merit as well as a penchant for suo moto challenges of issues of governance, justice will remain denied and an abstract fantasy for the masses that it is today.

An independent judiciary maintains the conscience of the nation, ensuring the rule of law being applied without fear or favour. The judiciary’s sustaining of impartial accountability is the touchstone of good governance. Lack of accountability, or a selective approach, allows the corrupt to acquire power and use it for their own benefit, rather than for the masses, and the nation. The rich become richer, the poor much poorer, and many multiple times more in numbers than the rich. Inordinate and/or illegal wealth, concentrated in the hands of the few, is a sure recipe for criminality, the history of mankind being replete with examples of the subversion of judicial process by the use of money.

The activism of the Supreme Court of Pakistan under Chief Justice Iftikhar Chaudhry over the past year or so does give one hope of a golden period of judicial independence; justice may have substance in our time. Rising up to its responsibility to the nation, crossing the extra-constitutional minefield we are mired in will take some doing by the Supreme Court. What is good for a particular government may or may not be good for the State. But then legal maestro Sharifuddin Pirzada can be counted on to make the illegal legal!  The existing judicial structure must be reinforced by putting the full moral and physical powers of the State behind it, reforms must be implemented. While what matters in realpolitik is the physical authority that the Armed Forces command, the moral authority of the Supreme Court does carry weight.

There have been repeated elections held under Caretaker regimes in Bangladesh since the fall of Gen Ershad’s regime in 1991. Both the major political parties allowed their near and dear ones and the party elite, to grossly misuse their opportunities at governance in enriching themselves. Similarly in Pakistan, whether governance was in the hands of the PPP-led coalition or the PML (N)-led Coalition, corruption was rampant. Mian Nawaz Sharif used his so-called “heavy mandate” to ride roughshod over Pakistan, ousting everyone that mattered. His “heavy mandate” constituted less than 30% of the votes cast, i.e. 16-17% of the electorate. The imperfect “first-past-the-post” system is a joke on democracy; only “run-off elections” can give an absolute majority and the right of governance.

Swept away by believing in his own myth of a “heavy mandate”, Mian Nawaz Sharif went too far. Gen Musharraf was an accidental coup-maker, the Army’s putting down of Mian Sahib’s “civilian coup de etat” was widely welcomed, the people were fed up with the prevailing corruption. Unlike the high of his first two years in office, Musharraf still remains a popular figure despite compromising some principles for political reasons. Engaging in a wide range of corrections in our civic functions and governance thereof, Musharraf’s real gift to Pakistan is the National Accountability Bureau (NAB). In the first years of its existence, NAB achieved quite a great deal in bringing the corrupt to justice (including defaulters of loans who had almost bankrupted the commercial banks). NAB’s credibility was badly undercut when “plea bargaining” was institutionalised by Munir Hafeez who succeeded Amjad and Maqbool. Adopting a selective policy, he contrived to avoid prosecuting “favourites”, “plea bargaining” becoming the legal way of letting the guilty go free. Rampant criminals bargained a small part of their ill-gotten wealth to gain their freedom – and a license to not only enjoy their “earnings” but engage again in the loot of the nation! In many cases, NAB regional offices were instructed to close down potent enquiries.  One may well ask, against what “consideration” was this leniency shown? Under Lt Gen (Retd) Shahid Aziz, NAB is gradually regaining the credibility lost during the Munir Hafeez years. Has NAB the courage to investigate those of its own clearly “living beyond their means”? While Musharraf did not declare martial law, and kept the civilian façade going, the large-scale appointment of “khakis” into government agencies and semi-government corporations gave Army a bad name, and continues to do so!

The Bangladesh Army COAS Lt Gen Moeen Ahmad and his colleagues are using “the Pakistan model”, or more specifically the “the Musharraf model”, in not going the “martial law" route.  There is one important difference -- no Armed Forces officer has taken up any civilian appointment. The Army’s physical strength is certainly required to shore up the Caretaker regime from behind the scenes, reinforcing the authority of the civilian government made up of an effective lot of good men and women running the show on a day-to-day basis. Staying away from the temptations of acquiring the trappings of office, the Army has not exposed themselves to suspicions about their intentions and ambitions. One must be proud of the supreme commitment of Moeen and his colleagues, the nation before self. A mountain of work is still to be done, a golden chance to bring to book the corrupt and the criminals from across the broad spectrum of society in Bangladesh. The arrests have been impartial and widely acclaimed, among those detained from the two major political parties are mafia-style political bosses of mega-cities and those who have looted banks and laundered ill-gotten money abroad, including going on a buying spree in Pakistan, etc.

Targetting of individuals for reasons of personal vendetta, as is mostly the case in the third world countries, will undercut the credibility of the mission statement, that must be scrupulously avoided. On the other hand the really influential must be specially brought to justice, the use of influence for perverting the course of justice must itself be treated as a crime! Maybe Bangladesh “Anti-Corruption Commission” will get technical help from NAB. While the measure of success in Bangladesh will be fair accountability, the measure of success against the corrupt in both Pakistan and Bangladesh will be a pure democracy. This can only be achieved if the State strengthens the judiciary. The power that an independent judiciary commands in rendering justice will dictate the effectiveness of a democracy, and vice versa!