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Unfortunately, in another country in South Asia -- Sri Lanka -- these ideas have been casually sacrificed without anyone putting up a vigorous fight in a similar spirit as in Pakistan today.
Pakistan's struggle had many illuminating moments last week. On May 26, the chief justice addressed the Supreme Court Bar Association and boldly spoke of the need to clearly define boundaries of power and not to let the executive enter the arena which belongs solely to the judiciary.
In an affidavit filed in the Supreme Court this week, the chief justice narrated the harassment he suffered on March 9, 2007, when he visited Army House at the invitation of President Pervez Musharraf. His detailed affidavit reveals how he was restrained in the premises for several hours while an acting chief justice was allowed to take the oath of office in his place.
The affidavit graphically illustrates how the executive usurped the power which legitimately belongs solely to the chief justice and arbitrarily handed it to another person, as if the position of chief justice can be disposed of in such a trivial manner. The whole episode caused humiliation for the chief of the judicial branch by the chief of the executive branch. It illustrates the very point that the chief justice made in his speech, underlining the executive's callous inroads into the territory that belongs to the judiciary. As rightly pointed out, such actions will ruin the entire state structure and can only lead to anarchy.
In fact, anarchy is what Musharraf's military government has brought the country. This conclusion should not be surprising as authoritarianism destroys all boundaries of civilized society and brings tremendous ruin that will survive long after a particular dictator is overthrown. Thirty-two years of Suharto's dictatorship, for instance, destroyed all the basic institutional framework of Indonesia, and now, almost a decade after Suharto's overthrow, the country's basic institutions, such as the police, the system of prosecution, the judiciary and the apparatus of the bureaucracy, remain in a primitive condition. What an authoritarian destroys with ease cannot be rebuilt with ease. The people who are forced to succumb to dictators suffer long after the dictators are removed from the scene.
It is therefore quite politically realistic on the part of Pakistan's lawyers and people to take to the streets to fight the dictator before he completes his ruinous course. At the meeting of the Supreme Court Bar Association mentioned earlier, the president of the association, Muneer Malik, made a historic speech in which he spoke of the paramount importance of defending the constitutional separation of power and the independence of the judiciary (see the full text of the speech at http://www.ahrchk.net/statements/mainfile.php/2006statements/1037/).
The manner in which the struggle against the dictator is developing now in Pakistan is a healthy sign demonstrating that democracy may still have a chance of survival in the country. Quite contrary to the view held by some with vested interests in the West, which have portrayed Gen. Musharraf as a defender of democracy, the people of Pakistan are showing that he is, in fact, an enemy of democracy. It is the duty of the West now to support the movement of democracy that is fighting for the independence of the judiciary and the establishment of constitutional governance in Pakistan.
It is unfortunate that the trend in Sri Lanka is moving in the opposite direction. The Sri Lankan state, which under several executive presidents has been submerged in authoritarianism, is now relying on the courts to buttress their authority. In a submission made in March 2007 to the U.N. Human Rights Committee, the Sri Lankan government took the following position:
"The government of Sri Lanka was unable to respond to the Human Rights Committee by submitting its observations, owing to the Supreme Court judgment in Nallaratnam Sinharasa's Case. While the government of Sri Lanka is conscious of its obligations under Treaties, Conventions and Protocols, it is also imperative that the government of Sri Lanka respect the judgments of its domestic courts."
In the case above, the Supreme Court of Sri Lanka held that the president ratifying the optional protocol to the International Covenant on Civil and Political Rights was ultra vires -- or beyond the power of the Constitution. The government now asserts that it is imperative to respect the judgment of its domestic court. In this way, an authoritarian government finds its justification in not complying with international human rights norms and standards in international treaties it has ratified, as it is prevented from doing so by its domestic courts.
Such a view is a sweet defense for any authoritarian regime. The entire design of Sri Lanka's 1978 Constitution was to subordinate the judiciary to the executive. This scheme was introduced and implemented, not by military dictators, but by politicians elected by the people. The subtle process of undermining its own democracy thus took place in Sri Lanka in this manner.
The legal community in Sri Lanka has not had the insight to understand this process of undermining the separation of powers, independence of the judiciary, checks and balances and constitutional governance as a whole. Authoritarianism has won, and there has hardly been any struggle to defend democracy. There is thus a great deal for Sri Lankans to learn these days from their counterparts in Pakistan. If such a lesson is not learned soon, the threat to Sri Lankan society, which is in quite an advanced stage now, will soon be realized.
In fact, there is much for many countries in Asia to learn from the struggle that is now occurring to defend the basic institutions of democracy in Pakistan. Democracy rests on viable institutions; and in their absence, it cannot survive. The imperative to defend basic institutions of justice and to develop them as extensively as possible is the only basis on which democracy can survive in Asia in the present context in which various dictators seek to debilitate it.
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(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia.)
