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To restore justice, the consequences of attacks on the institutions of justice must be reversed. In many instances this is a very difficult process, because long years of repression often create extreme frustration and demoralization among the affected population. In Pakistan, however, we see that the affected people themselves have retaliated, fought hard for months, and defeated the political power of the military leader. Now they have ensured that their elected parties will return the judiciary to its rightful place.
It is the people's ownership of the institutions of justice that creates the balance in which the state is compelled to respect the independence of the judiciary. The independence of the judiciary is not something that is given from above. It is not a gift from the rulers. It is the independence of the judiciary, in fact, that limits the power of the executive.
It is the people who hold the highest stake in the matter of judicial independence. When the independence of the judiciary is attacked -- as happened over a long period of time in Pakistan, culminating in the final attack by President Pervez Musharraf -- it was a great blow to the freedoms and liberties and even the right to livelihood of the people. At last the people have reacted and regained their capacity to demand justice.
This is undoubtedly a great milestone in the struggle of the people of Pakistan to create a decent and fair society. However, the momentum gained by the decision of the two major political parties to restore the judges must now be extended to allow the judiciary to function without fear or favor toward anyone.
The movement of the lawyers, judges and others, who were the frontrunners in this great struggle -- particularly since March 9, 2007 when the chief justice was deposed -- must keep the light burning all the time. The period in which newly gained ground is consolidated will matter most in laying a solid foundation for the future.
In this time the judiciary too must take a good look at itself and overcome whatever limitations it has had in the past. Of particular importance is how justice will be dispensed for the poor and the marginalised in Pakistan. High priority must be given to ensuring access to justice to all persons who need it.
In the past there have also been allegations of corruption and inefficiency against judges. It is time for the members of the judiciary as a whole to demonstrate that they are competent and capable of discharging the high trust that the people of Pakistan have placed in them.
The test of justice is the extent to which the victims of injustice can raise their voices. In Pakistan today there are many such victims. Among them the most prominent problem is the one affecting the families of disappeared persons. Causing disappearances is a horrendous crime. It is not possible for a system of justice to say it cannot solve this problem because the executive does not allow it to interfere.
The judiciary must find a way to keep its legitimate power to protect all victims and also to act as the guardian of human rights. This role must be jealously preserved if justice is to have a meaning.
The coming months are important for anyone trying to understand the meaning of post-conflict justice. While studying the achievements already made through the decision to restore the deposed judiciary in the coming months, there are further lessons to be learned about how to recover the ground lost due to extreme forms of violence and the abuse of power by a dictatorial regime against its own people.
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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.)
