Mir Adnan Aziz is a freelance contributor.
Any democracy is as strong or as weak as its judicial system. Without judicial independence, the Constitution is but a fragile document that can be violated at will. Alexander Hamilton, an eminent lawyer and most influential of the US founding fathers, described it thus: “The independence of the judges once destroyed, the constitution is gone, it is a dead letter.”
A weak or compromised judicial system spawns a ruthless master who is a ruler with absolute control.
Germany and the Reichstag Fire Decree
Some of history’s most berated figures had unbridled power. Hitler blamed the communists for the Reichstag (Nazi Parliament) fire. When the judges failed to convict them, a furious Hitler invoked the “Reichstag Fire Decree.” He also set up a parallel judicial system called the Sondergerichte, or the Nazi special courts.
Otto Thierack, a staunch Nazi and Hitler’s Reich minister of justice, issued a series of what are known as “Letters to All Judges.” In his first letter, Thierack set official guidelines for handing out sentences, including the death penalty, for anyone convicted as a public enemy. This was regardless of the severity of the accusation.
Hitler warned the judges, “I expect the German legal profession to understand that the nation is not here for them but they are here for the nation. I shall intervene now and remove from office those judges who evidently do not understand the demand of the hour.” Those who succumbed to the immense pressure played a crucial role in expanding and strengthening the power of the Nazi regime.
Turkey and the 1960 Coup
Adnan Menderes was very popular and Turkey’s first democratically elected prime minister. Deposed in a coup in 1960, he was arrested along with President Celal Bayar, Foreign Minister Fatih Rustu Zorlu, and Finance Minister Hasan Polatkan on trumped-up charges in 17 cases. These included violating the constitution and embezzling state funds.
Imprisoned in Yassiada, an island prison on the Marmara Sea, all four were sentenced to death. Only President Bayar, at 80 years old, was spared; the rest were hanged. Menderes is revered in Türkiye. His grave and that of Fatin Zorlu and Hasan Polatkan were moved to the new Topkapı cemetery. President Bayar passed away at 104 and is recognized as the Father of the Turkish Republic. Yassiada came to symbolize the sorrows that nurtured Turkish democracy. It is now known as “Democracy and Freedom Island.”
Pakistan and its Deteriorating Judiciary
Recently, our Supreme Court (SC), which has legalized military rulers in the past and even allowed them the luxury of amending the constitution, judged the Zulfiqar Ali Bhutto trial as unfair. This “innocuous” word in our national parlance has been our bane. It ensured Bhutto’s tragic and unjustifiable tryst with the gallows.
For centuries, judicial oaths have held that fear should not affect a judge’s conduct. In reality, judges, like us, are individuals with friends and families. How can we expect them to insulate themselves from their well-being? The letter written by the Islamabad High Court (IHC) justices seeking justice alleges specific instances of threats and coercion. It is paramount that the matter is taken as seriously as the allegations.
The matter should also be transparently investigated by a commission consisting of sitting SC judges, as the Pakistan Bar Council demands. The Islamabad High Court Bar Association (IHCBA) has also filed a petition in the Supreme Court requesting a thorough investigation of the allegations. The recent spate of toxic letters received at the offices of the IHC and SC judges, including the Chief Justice of Pakistan (CJP) himself, might well be the act of an agent provocateur. This, in itself, has to have a feeding ground to have the desired sinister effect.
Before his retirement, former Army Chief General Qamar Bajwa said in a televised speech that the army “is subjected to criticism from time to time. I believe the major reason has been the military’s interference in politics for the past 70 years, which is unconstitutional.”
It was a testament to Pakistan being under quasi or full-blown military rule for the last seven decades.
This travesty has only been possible by our political stalwarts’ consistent and willful ceding of space, individually and collectively. Apart from always soliciting their help as an easy conduit to power, they have bestowed upon the military the status of what the Romans called “magistratus extraordinarius“—an extraordinary magistrate. This, not the parliament, has become the default position for “democrats” to sort out their limitless political shenanigans.
The fallout has practically smothered the establishment of a delivering and stable democratic system. This has been because the voting populace has figured nowhere in this transactional alliance. It is imperative that the military actively follow its stated policy of disengagement from politics. This will strengthen the people to weed out the non-delivering elements from the corridors of power.
Byzantine historian Procopius notes in his book, “Secret History,” that those who suffer grievously at the hands of another expect that they will be avenged by law. If their hope of redress disappears, they turn to utter despair. It is akin to a forsaken child because a citizen views the state as its parent and guardian.
Due process is a binding and fundamental principle of the constitution. Arbitrary revolving door detentions are as cruel as they are an affront to the rule of law. The highest courts internationally have held that the function of law enforcement is preventing crime and apprehending criminals. It does not include the manufacture of crime.
No political scientist, let alone a physicist, could have described our governance cycles better than Einstein.
“Our politics is a pendulum whose swings between anarchy and tyranny are fuelled by perpetually rejuvenated illusions.”
Albert Einstein
No power center has ever refrained from fostering the don’ts in Pakistan; all deny the same. Mark Anthony’s famous lament rings in the ear, “So are they all, all honorable men.”
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