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In fact, he has done more than that. He has virtually crushed judicial independence already by dismissing 55 senior judges, including the chief justice of Pakistan and 12 other judges from the Supreme Court. He has also appointed his cronies to take over these posts. All these incidents are well known; the question is whether such developments really matter?
The question concerns the parameters used by the superpowers and even the United Nations in assessing violations of human rights. Article 14 of the International Covenant on Civil and Political Rights guarantees the right to equality before courts and tribunals and to a fair trial. General Comment No. 32 by the U.N. Human Rights Committee dated July 9 to 27, 2007, has elaborated this right in great detail. In this general comment, it states:
"The notion of a tribunal in Article 14 Paragraph 1 designates a body, regardless of its denomination, that is established by law, is independent of the executive and legislative branches of government or enjoys in specific cases judicial independence in deciding legal matters in proceedings that are judicial in nature."
A tribunal exercising powers of a judicial nature is only able to function authentically to the extent that it can act independently, guided solely by the law and practices which are part of the legal framework. To talk of a body as a tribunal when it is deprived of its independence does not make any sense at all.
This is not just a matter of legal development but also one of the most important issues in the development of thought on democracy. Both the French and American Revolutions established a political framework within which the independence of the judiciary is a primary feature.
If the independence of the judiciary were removed within British, French, U.S. or other liberal democratic systems, they would not be able to stand. Thus, politically as well, to talk about democracy while depriving the courts of their independence does not make any sense.
The question that then arises is whether the talks by the United Kingdom, United States and even the United Nations with the Musharraf government on human rights can be regarded as sensible if the independence of the judiciary is not taken as a central issue on which the president should be confronted and resolutions on the violations of his regime sought.
The trite manner in which the United Kingdom, United States and sometimes even the United Nations talk of human rights in Pakistan without making a genuine and decisive attempt to restore the independence of the judiciary manifests some serious limitations of the dominant discourse on human rights globally. The attempts taken by all actors in the field of the protection and promotion of human rights to deal with the issue of the independence of the judiciary cannot in any way be called satisfactory.
The right of equality before courts and tribunals and the right to a fair and public hearing by a competent, independent and impartial tribunal is one of the rights that has been betrayed. There is a readiness to accept, without any qualm, the denial of the right to a hearing before an independent judiciary by the governments which play a significant role in the international discourse on human rights.
Under these circumstances, it would not be unfair on the part of the people of Pakistan to think that the talks taking place on human rights in these countries with Musharraf are only a showpiece and that the world has little interest in the real issues of human rights, which are deeply connected to the independence of the judiciary.
In this context, it was a significant move on the part of the Asian Human Rights Commission to grant its third Human Rights Defenders Award to two senior lawyers, Muneer Malik and Choudhry Aitezaz Ahsan, who have played a leading role in fighting for the independence of the judiciary in Pakistan and for which they have paid a heavy price as victims of torture and arbitrary detention.
This Asia-based human rights group has tried to bring into focus the issue of the independence of the judiciary, which thousands of lawyers and millions of people in Pakistan have taken to the streets to defend. It cannot be said that the United Kingdom, United States and even the United Nations have done justice to these people who have shown the commitment to defend their rights.
Instead, a man who has violated the rights of his people and destroyed the independence of the judiciary is treated with far greater respect than millions of his countrymen who are making a determined attempt to make their country a place where human rights can be discussed with some sense.
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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.)
