Three views have recently come up on the issue of restoration of judiciary. First, the President said that this would need two-third majority of the parliament. Second, observed by US Under-Secretary of State that the President may dissolve the newly elected parliament if it would try to restore the judges. And third, maintained by all former judges and leading constitutional lawyers that judges can be restored through an executive order.
But before examining which of the three views can hold its ground, let’s examine what would be the shape of things in the near future after the elections. Political pundit’s forecast is that if the elections are free and fair the future government would be formed by a PPP-led coalition. Other possible partners of this coalition could be PML (N), MQM, ANP and perhaps JUI. But some friends say the American and President script has put PML (Q) as the junior partner in this coalition and not unbending PML (N).
There are two major hurdles which may cause problems in the way of cobbling this coalition. Both are expected to come from Nawaz Sharif. He has kept the restoration of judges’ issue on the top of the agenda and other major political parties like PPP, MQM, JUI, ANP and PML (Q) are pussy-footing this issue. And, he insists that he will not join any government under Musharraf.
Major political parties, with the exception of PML (N) and JI, are not taking the issue of independence of judiciary seriously. Of the two exceptions only PML (N) is in a position to push other political parties to take up the issue of restoration of judges who fell victim to the 3/11 Emergency. If he will stick to his just stand, PPP will have to come around, even though reluctantly. It will also depend on the number of seats PPP and PML (N) get.
Nawaz Sharif has been a beneficiary of independent judiciary twice. First, when his government was ousted by the scheming President Ghulam Ishaq Khan, the court restored him. He had to eventually resign because of the pressure of the junta. And the second time it was the court which upheld his and Shahbaz Sharifs inalienable right to return to Pakistan.
Being a leader of the urban Punjab, he has also gauged the mood of his constituency well. The lawyers are perhaps the most important opinion makers in the urban Punjab and their movement for independence of judiciary has left no doubt where their heart is. His critics are not willing to forgive him for storming the Supreme Court when he was in power. Criticism is right, but everybody should be given a chance to learn from his follies and improve.
Political pundits and bookies’ favourite PPP (which according to one guesstimate would bag around 100 seats from Punjab and Sindh) has been skirting around the judges restoration so far. Whenever its senior leaders are asked a direct question they are found artfully bridging it to give a non-committal message.
Most analysts feel that PPP does not want to commit on this issue for fears that: Restoration means annoying the Americans who have been misled to believe that the independent judiciary was coming in the way of tackling the terrorists; Restoration means that the Supreme Court may strike down the most cherished National Reconciliation Ordinance; And that Restoration means picking up a conflict at the very outset, with the President, who “purged” the judiciary for not conforming to his dictates at the cost of rendering a final blow to his image.
To overcome these fears PPP does not need the shrink’s couch. Let’s take the above fears in that order. Fear one, the courts attitude towards missing people did upset the government and the agencies that are pitched against the terrorists. But both the Americans and government should realize that they cannot shift the burden of poor prosecution cases to the judiciary. There is no denying of the fact that the rising tide of terrorism cannot be tackled under the existing legal framework. The long term solution is that the law enforcing agencies should prepare the cases backed by the proficient legal team. Our parliament needs to pass new laws to meet this challenge. Even in some Western countries’ parliaments have come up with the law that a person held on charges of terrorism or abetting it can be held incommunicado for a restricted and reasonable period. Once that law is there the courts will have to work within that framework. But this does not mean that agencies can hold people on this pretext as long as they wish and not account for them. No civilized society can allow this or giving away its own citizens to another country if the accused has not committed a crime on their soil. In civilized democracies there are no short cuts at the cost of human rights of the people.
Fear two, almost all parties have been beneficiaries of the NRO, so it would not be difficult for the new parliament to pass a law (perhaps almost unanimously) validating this ordinance. This can be done simultaneously with the restoration of the pre-November PCO judges.
Fear three, that President will not like restoration of judges is right, but then you cannot hold a popular and just decision because it will displease one person. The choice is simple, its one person against the will of the nation. Politically this move will not cost the new government much because it will be not be possible for the President to pack them home in the first few weeks. US administration’s assumption that the President will dissolve the newly elected assemblies if judges are restored shows their lack of understanding of Pakistan’s ground realities. The 58 2(b) axe has always been used by the respective presidents when they had the army backing. This time the army is at pain to divest from politics to repair the damage done to its image in the last 8 years.
Above all the bonus for the new dispensation will be that only an independent judiciary can protect them from the notorious axe of Article 58 2(b). It clearly provides that “the President may also dissolve the National Assembly in his discretion where … a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary.” (But) “The President in case of dissolution of the National Assembly under paragraph (b) of clause (2) shall, within fifteen days of the dissolution, refer the matter to the Supreme Court and the Supreme Court shall decide the reference within thirty days, whose decision shall be final.”
It is thus in the interest of the political government to have an independent judiciary where a President backed by the junta can any day dissolve the National Assembly. Political parties should take a long-term view of the issue and recognize the importance of the issue of restoration of judiciary to its pre-November position at the very outset when the new parliament is sworn in.
Now back to the constitutional position on restoration of judges. Almost all leading constitutional experts are of the view that restoration of judges can be done through a simple executive order, as the order removing these judges was not passed by the parliament.
After facing so much damage to his image ever since he unnecessarily picked a fight with the judges and lawyers, the President should realise that his lawyers are giving him interpretations of law which please him and not the honest legal advice.
The constitution is quite clear that it can be amended by the two-third majority of both the houses and not by a single person. Even the Supreme Court has no power to allow a person to change the constitution. It was because of this constitutional requirement that the Article 270 (A) and 270 (AA) had to be inserted in the Constitution in 1977 and 1999, respectively to validate the deviations from the Constitution after the military take-over by General Zia and General Musharraf. So the presumption that what the present Supreme Court has said regarding the November 2007 emergency validates the action of the COAS and the President is wishful. The Supreme Court cannot give validity to the Emergency PCO. It is because of this they have referred to Zaffar Ali Shah and Begum Bhutto cases in judgement. In both cases it was maintained that changes in laws were valid only for the deviation period. This necessitated the amendments in the constitution once the parliaments were sworn in 1985 and 2002.
Mr. President some lawyers will always tell you that your case is strong, because pleasing the clients is their bread and butter. Only few honorable lawyers have the honesty to tell their clients, sorry you have no case, even if the judiciary is amiable. Now the choice is yours who would you like to trust in these crucial times. (firstname.lastname@example.org)