Published in the 20 June 2008 issue of the Indian Express
http://www.indianexpress.com/news/long-march-slow-justice/325174/
Taimur Malik
Last week, Islamabad witnessed the largest public gathering in its history when the lawyers-led Long March for the restoration of deposed judges culminated on Constitution Avenue. Thousands waited all night to hear the fiery speeches of the lawyer’s movement’s leaders and the second-largest political party, PML-N. The unprecedented turnout and countrywide support for the Long March was widely considered a clear reminder for parliament and the ruling PPP that the nation was serious about the restoration of the judiciary and that the February elections were a clear referendum in this respect.
The government has since reacted. This week, deposed Chief Justice Iftikhar Muhammad Chaudhry and his fellow judges were paid salaries and allowances as judges of the Supreme Court of Pakistan. For most lawyers, it is a matter of simple logical interpretation that, by paying the salaries, the government has accepted that the said judges are still members of the apex court.
The legal fraternity also claims that since arrears have been paid to the judges for the last seven months — including the months when some of them were detained in their homes — it implies that the deposed judges stand reinstated in spirit but are non-functional at the moment. This also means that the government has brushed aside President Pervez Musharraf’s position that the judges who had not taken oath under his PCO were no longer judges of the superior courts. However, the statements of the PPP leadership have not helped clear the situation and disagreement still exists between the main coalition partners regarding the method of reinstatement.
Meanwhile, the spokesman of the deposed chief justice has claimed that the arrears have been paid through a Salaries Sanction Order, 2008, while the law minister, Farooq Naek, maintains that the money has been disbursed from the Prime Minister’s Discretionary Fund. Nevertheless, the payments have been made on behalf of the government on the orders of the prime minister and that leaves no ambiguity about the judges’ status.
The lawyers further argue that if the judges had actually been relieved of their duties, they would have been given pensions instead of salaries minus any allowances, since certain allowances are given to serving judges only. The cheques which were presented to the deposed judges by the federal law secretary bear the name of each judge as “justice” and there is no mention of the word “retired”.
This situation also creates a legal complication with respect to the number of the Supreme Court judges, which is fixed at 17 at present. The government is now trying to increase the strength of the Supreme Court to 29 by passing an amendment as part of the Finance Bill this month. In the eventuality that the amendment is not incorporated or passed, the fate of the now “non-functional” and the present PCO judges will remain uncertain.
Moreover, many lawyers oppose the reinstatement of the judges in this manner and believe that increasing the number of Supreme Court judges is meant to reward the PCO judges. Furthermore, if Justice Chaudhry has been paid the salary of a chief justice, what will be the fate of the present chief justice once the deposed judges are reinstated?
They remain uncertain about the seniority of the judges at the apex court after restoration, since accommodating present and deposed judges by increasing the number of judicial positions is not the same as restoration of the judiciary to the pre-emergency position.
The president of the Supreme Court Bar Association, Chaudhry Aitzaz Ahsan, and others are viewing the arrears as an initial victory and an indicator of the Long March’s success. This viewpoint can be attributed to the fact that the PPP was initially non-committal on the restoration of the judiciary, and this move is a step in that direction and an effort to keep the PML-N on board.
However, one shouldn’t consider this gesture as an evidence of the PPP’s rekindled commitment to restore the judges and declare Musharraf’s PCO invalid. The cynics believe this to be a political step taken to appease the lawyers and the PML-N. The actual restoration of Justice Chaudhry and other judges still remains uncertain and unlikely in the immediate future.
This step alone by the PPP cannot be seen as a move towards a changing political paradigm in parliament. The PML-N sticks to its original stance on the restoration issue, and is all set to benefit politically as a result in any election in the near future. The PPP realises that its coalition partner is riding the popularity wave and needs to take steps to retain the confidence of its own voters. The arrears ensured just that. However, the PPP is unlikely to concede to the PML-N on the method of restoration, realising that the PML-N wants to continue in power in Punjab with its support and therefore will not act to destabilise the government anytime soon. The PPP and the PML-N are likely to continue as coalition partners but the warm union of the early days is a thing of the past and the judicial crisis still remains unresolved.