Fordham Law

Pakistan Chief Justice Chaudhry speaks at Fordham Law

Fordham Law School on The International News Network, November 11, 2008

Media Source

NEW YORK: Deposed Chief Justice of Pakistan Iftikhar Mohammad Chaudhry has said in the absence of an independent and empowered judiciary, a perfectly well conceived constitution can be reduced to an irrelevant text.

In his speech to Fordham Law School on Rule of Law and independence of Judiciary, the deposed CJP said, "Constitutional guarantees have to be brought alive by the judiciary by upholding the morality and principles of law, and interpreting the text to make law the supreme and just ruler in the country.</b> If the judiciary fails its mandate, the loss of collective faith in the ability of law to produce justice is as damning for the health of a nation as the injuries caused to individual citizens left at the mercy of whimsical exercise of executive authority."

He said Over the last year and a half - and for the first time in the country’s history - we saw that the judicature, as an institution, rejected an unconstitutional order backed by force; even when it meant putting at risk the rights and liberties of individual judges. If this trend of adhering to the principles at the cost of personal liberty and livelihood catches on, it will end an era in Pakistan’s checkered Constitutional history that repeatedly saw subversion of the Constitution being justified at the alter of expediency, he said. "This will require foresight, perseverance and a spirit of service and sacrifice. I am certain that Pakistan’s legal fraternity and the nation will rise up to this challenge", the CJP said.

Iftikhar Mohammad Chaudhry said the legal fraternity and the citizens in Pakistan have been fighting against executive actions that threaten to deconstruct a judiciary that was finally upholding its constitutional mandate as an independent branch of the state and not an extension of the executive.

It must be reiterated that Pakistan rule-of-law movement is not merely about restoring judges to their rightful office. This nation has a unique opportunity to strengthen the judiciary as an institution and entrench within it norms of independence and integrity that will bind all judges for all times to come, he said.

He said Pakistan’s problems of governance are institutional, and therefore solutions must also focus on processes and institutions, and not individuals.

If absolute power corrupts absolutely, the remedy seems to be to distribute state power as widely as possible among the representative institutions to guard against its abuse - an idea conceived by your founding fathers a few centuries ago and also implemented by the authors of our Constitution in 1973. Any institutional arrangement that de-couples power and responsibility is flawed and cannot be self-sustaining, he said. The former CJP said Democracy after all isn’t an end in itself, but only a process. To be useful the concept of self-governance needs to be put into effect by constructing self-sustaining institutional structures rooted in principles and backed by procedural safeguards. Elections are an essential feature of democracy.

But in the absence of other vital attributes, such as rule of law and separation of powers, the outcome of a balloting process cannot be claimed a democratic dispensation. Instead elections end up discrediting the very concept of self-governance, once the promised benefits of democracy fail to trickle down to the average citizen despite having gone through the motions of voting, he said. The biggest casualty in the extra-legal actions taken by the ruling regimes since March 2007 has been the integrity of the constitutional process and faith of citizens in the ability of our courts to be independent and deliver justice. It will take time and effort to reaffirm our faith in the law, and its ability to do justice. But in order to move forward we need to stop moving backward.

And for that to happen it is imperative that the rule of law movement - that stood up in contempt against the deconstruction of evolving independence of judiciary in Pakistan - ends up triumphant.