Institutions, not individuals, could help overcome governance problems, says ex-CJ

NEW YORK - Asserting that Pakistan's problems of governance are institutional, deposed Chief Justice Iftikhar Muhammad Chaudhry on Tuesday called for focusing on processes and institutions for solutions, and not individuals.
In a speech at Fordham University Law School, he also said that rule of law and separation of powers would help strengthen democracy in Pakistan.
"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 ...," he told a large gathering of law students, faculty members and other guests.
On arrival at the campus, justice Chaudhry was warmly received by the Dean William Michael Treanor and the faculty.
Introducing him to the audience, the Dean paid high tributes to the former chief justice for his courage in upholding rule of law and the cause of independent judiciary in Pakistan.
Speaking on "Rule of Law and Independence iof Judiciary", justice Chaudhry especially spoke about a gap between the principles of a constitution and their implementation, saying, ". Some justify it on the basis of expediency; some accept it grudgingly in the name of pragmatism; but none in principle. And this has led to a majority standing up to demand an implementation of rule of law in letter and spirit.
"The ideal that inspired the Black Coats Revolution in Pakistan and continues to infuse the rule of law movement with vigour and determination is Constitutionalism. This is a concept larger than rule of law, separation of powers, independence of judiciary or even democracy; for it encapsulates all of these cherished ideals".
Elections, he said, were 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."
Rule of law and a system of separation of powers together with the electioneering process constitute the form and substance of democracy, justice Chaudhry said. "The rule of law simply means that government authority can be legitimately exercised only in accordance with written and publicly disclosed laws, adopted and enforced in accordance with required procedural formalities " that is due process".
Any institutional arrangement that de-couples power and responsibility is flawed and cannot be self-sustaining, justice Chaudhry said.
Building institution and institutional conventions takes decades, but not their undoing, he pointed out. "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."
Without an independent and empowered judiciary, the former chief justice said a perfectly well conceived constitution can be reduced to an irrelevant text.
"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," he said.
"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.
If we sacrifice judicial independent at the altar of expediency, the resultant expressive, institutional and intellectual harm is bound to be consequential. 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.
"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