Published in the 09-15 May 2008 issue of The Friday Times
Taimur Malik
The restoration of judges was never a question of the reinstatement of a few dozen individuals to their posts. We are today being acknowledged as a nation of proud, relentless and courageous lawyers; a country of fearless and forceful journalists; a democracy of many millions who voted for an independent judiciary and diluted the power of a ruler in one day. Coalition partners should hence accept that it is no longer the Pakistan that they governed at
their pleasure in the nineties.
Today’s Pakistan is witnessing a ‘black revolution’ and a unique national uprising, with a population ever more familiar with legal terminology and constitutional provisions. The judicial crisis has achieved an enlightenment of the right kind and resulted in freezing the politics of the country on one issue: restoration of the judges deposed by Pervez Musharraf. The public realises that if it gives upon this issue now, it can expect to be bypassed on all major issues in the future.
In one of the earliest assertions on the importance of separation of powers and independence of judiciary, Sir William Blackstone wrote in his Commentaries : “in this distinct and separate existence of the judicial power, in a peculiar body of men nominated indeed, but not removable at pleasure by the [executive], consists one main preservative of the public liberty which cannot subsist long in any state, unless the administration of justice be in some degree
separated both from the legislative and also from the executive power”. It is the attainment of this independence of judiciary and supremacy of rule of law that is the hallmark of the lawyers’ movement in Pakistan.
However, despite the public pressure and the ‘black revolution’ led by the lawyers, the demand for the restoration of judges has not seen the light of day eleven weeks after the public’s verdict came out in the national elections.
The leading coalition partners, Nawaz Sharif’s Pakistan Muslim League (PMLN) and the Pakistan People’s Party (PPP), made a commitment to the nation through the Murree Declaration to restore the judges within thirty days of formation of the federal government through a parliamentary resolution. However, the first thirty days achieved only one thing with respect to the deposed judges – freedom of movement and an end to their illegal detention. Meanwhile, ordinary citizens, civil society and the legal fraternity were made to wait for news on the restoration front and delayed their protests at the pretext of allowing Parliament to take its due course.
However, as the thirty-day deadline approached, the fear of a breakdown in the working relationship between coalition partners led to extensive discussions in Dubai to avoid a deadlock. While Nawaz Sharif may have been able to highlight his bona fide intentions on the issue, the outcome was dismal. The announcement by the PMLN leadership that the deposed judges will be restored ‘in the spirit of the Murree Declaration’ on May 12, 2008 has been met with scepticism and the statements by the Law Minister and the PPP leadership have not helped the issue either.
The Committee formed for formulating the mechanism and substance of the legal instrument for restoration of the judiciary has not achieved anything in its initial meetings. The membership of the Committee has also raised concerns in the legal fraternity and the public at large, for example, the presence of Supreme Court Bar Association (SCBA) President Aitzaz Ahsan on the Committee has perhaps been ensured to keep the lawyers off the streets till the 12th of May.
Nevertheless, the Committee has a difficult task of producing magical results acceptable to all parties on issues such as the method of restoration, increase in the strength of superior court judges, retention of new judges and the seniority of judges after restoration.
The decision of Fakhruddin G Ebrahim to quit the Committee has in fact been applauded by the bar councils. Mr Ebrahim in his statement to the Law Minister said that “I cannot be a party to any formula which attempts to reward those judges who have taken oath under the PCO of Nov 3, 2007 and had acted in violation of the Supreme Court order of Nov 3, 2007”. His statement represents the position of the majority of lawyers on the issue of retention of the judges appointed after the November 3 PCO.
Moreover, the continuation in office of the previous government’s Attorney General is either an assertion of the fact that complete transition to a democratic government has yet to take place or that the PPP is still not very serious about the restoration of judiciary.
There has been much debate about whether a parliamentary resolution will suffice or whether there will be need for a constitutional amendment to restore the judges. Five former chief justices and 16 other former judges of the Supreme Court have collectively issued a statement that a ‘simple resolution in the National Assembly would provide more than sufficient backing for the executive to the needful which is obligated under Article 5 and 190 of the Constitution to take immediate measures to restore all judges, including the chief justice, removed on Nov 2, 2007’.
As a common law country, where interpretation of law is the domain of the judiciary, we should respect the viewpoint of such a diverse group of senior judicial office holders expressed through an unprecedented
joint statement. However, the continuing disagreement in this respect between Committee members is disturbing and casts a shadow of doubt over the possibility of any imminent restoration.
The increase in the strength of the Supreme Court may present the foremost legal hurdle in the immediate restoration of judges on May 12, as the law does not provide for 27 judges at the apex court, unless it is decided to retain the newly inducted judges as ‘additional judges’ of the Court.
The position of the PMLN and the lawyer’s community on the issue of fixing the tenure of the Chief Justice is very clear that while it may be a good move in the long run for the independence of the judiciary and for the management and administration of judiciary, any such decision cannot be linked with the restoration issue and has to be dealt with at a later stage. However, this may be used as a bargaining point by the PMLN side in the Committee and some agreement may be achieved in this respect as well, which would allow Chief Justice Iftikhar Muhammad Chaudhry to remain in office for at least some years.
In any case, despite the general scepticism about the outcome of the Committee’s deliberations, it is important for the democratic future of Pakistan that the Committee delivers positively. It is also hoped that a session of the National Assembly will be convened on May 12 well in advance.
Moreover, having announced May 12 as the firm date for the restoration of judges, Nawaz Sharif is not left with any further face saving opportunity and will need to part ways with the PPP to strengthen his political support in the case of a deadlock.
The restoration of judges was never a question of reinstatement of a few dozen individuals to their posts. The public realises that this is a fight for the future of Pakistan and will not accept any compromise or further delay. The people want strengthening of the judiciary but they have made it clear that the restoration of judges has to be the
first step in that direction. Any unsubstantiated delay beyond May 12 will reduce the political might of the coalition partners by the day and extend the stay of the president.