Judiciary Issues

Lawyer’s movement for the independence of judiciary has entered a new phase. Interestingly the division among lawyers at present is regarding the tactics of continuing the struggle. While Sindh and Punjab are for partial strike, NWFP and Balochistan are for the continuation of complete boycott of PCO judges.


Most of the leadership feels that the time has come to slow down the movement, as not much success is possible before the upcoming elections. A Number of factors have pushed the leaders to end the boycott of the PCO judges and opt for partial strike. Major reasons are the litigants’ pressure that their cases should be followed up, financial strain on lawyers who do not have much savings and the realisation that the restoration of judges is now only possible through the new parliament. This means if elections are held on 18th February the parliament would settle in somewhere in early March. There is a looming fear that the political parties may ditch them once elected to compromise with the President.


Former Supreme Court Bar Association (SCBA) President Munir Malik, who spearheaded the lawyer’s movement, said: “I think the ball is now in the parliament’s court.” In an interview taken by me for the Asian Human Rights Commission he explained that “historically, a usurper has sought parliamentary indemnity for the acts done during the period of deviation. Now we can’t go before the present SC and expect restoration of judges. In fact they’ve already ruled that the 3rd November PCO amendments are a valid part of the constitution and they will not require any further parliamentary approval. And they have shifted the onus on parliament, that to undo it you have to repeal it by a 2/3 majority.”


So this war will now be in the new parliament or in the streets. On the streets it’s supposed to be run by the lawyers and political leadership. I asked him does that mean if political parties don’t get 2/3 majority they can’t change the court ruling that actions taken under emergency do not need parliament? Munir Malik had another solution to offer: “No sir, let’s take this scenario, supposing PPP gets a simple majority, forms the government and the speaker asks to lay the constitution of Pakistan before the house, which one will they present, one with the amendments, or the one which was before Musharraf took over?


This issue had also come in 2002 when the previous National Assembly speaker Illahi Baksh Soomro sat to swear- in the members he asked for the 1973 Constitution for administering the oath. So if this tactics is repeated some lawyers think November PCO would automatically become void.


Most political party leaders and civil society representatives agree that the chances of restoration of the Chief Justice of Pakistan will not be acceptable to President Musharraf. If this issue is pushed hard at the very outset, newly elected parliament will have to encounter his resistance. Political Pundits say that the middle course could be that the judges are restored with the tacit understanding that CJP will resign once his position is vindicated in the interest of learned brothers and conflict resolution.


Superior courts judges who suffered from the 3/11 emergency ambush are also faced with personal predicament. At the one hand legal fraternity is hopeful that their struggle would be successful eventually. Thus they want the ousted judges to stick to their stand that they are legal judges and their removal was unlawful. On the other hand the flip side of this stand is that they cannot claim their pension and retirement benefits because they claim they are still the judges. Also they cannot take up legal practice. Prolonged limbo will make it difficult for some judges to even pay their rents, as at present they have no source of income.


One view is that 3/11 gains were not consolidated by the legal fraternity and loves labour was lost.  Certain political issues like Presidential elections and missing people for were brought the court. The courts had no choice but to do the needful.


Munir Malik’s opinion is that “the momentum of the events was such that if the courts did not make an attempt to address them, then it would have become the old Supreme Court and that was not an idea worth fighting for. This was a catch-22, if the judiciary did nothing its public image would have eroded giving an impression that this was a fight only for the CJ and not for the independence of the judiciary, not to preserve the institution. Then the judiciary would again have become weak. So the level of expectation from the masses, the legal fraternity and the civil society was such that there was no turning back without eroding the judiciary’s credibility and once it was eroded, the establishment would have attacked again.”


In any case the executive did attack and brought us back to square one, pushing the judiciary in a worst position than it was even before 9th March.


Wretched people of Pakistan will have to fight once again to retrieve the constitutional powers of the judiciary from the hands of the all powerful executive. The goal is far. But we did it once and we can do it again led by the Black Coats. (ayazbabar@gmail.com) 

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