Thorny Legal Inheritence

Newly elected National Assembly would be sworn in today, but they have not much to celebrate. They are cursed with the thorny inheritance being passed on to them by their predecessors. The PPP-PML (N)-ANP-JUI grand coalition would have to click the stop-watch today to start the 30-day count down for the restoration of judiciary. On the streets lawyers would be the cheer-leaders.

 

So far restoration of pre-3/11 judiciary has been presented as a simple issue which can be rectified with the stroke of a pen by the newly inducted government. Most of the former judges of the superior courts and leading jurists agree to this solution. They have the support of all democratic forces in Pakistan who want rule of law in the country.

 

But the problem is that this solution is not acceptable to the President.  All the President’s men are still hopeful that they can pull it together again. President’s lawyers are misleading him and giving the advice which he wants to hear. Perhaps they have forgotten the Humpty Dumpty nursery rhyme. Alas! Intellectual honesty is hard to find in the upper echelons of the government.

 

All the President’s men are out to resist the simple constitutional course for the restoration of judges. In this backdrop sorting out all the thorny issues attached with this bramble are likely to become difficult for the new government. The unconstitutional action taken by President Musharraf on 3/11 and the subsequent measures have created some side issues also.

First, the question would arise, was there a judicial vacuum in the country in the last four months – post 11/3? Most supporters of the restoration of judiciary movement may empathically say “YES.” This may be principally and politically a valid assertion, but the reality is otherwise. The superior judiciary has been working in this period in spite of boycott by many lawyers. True the lawyers’ movement does not recognise the PCO judges, but the reality is that cases were heard by these judges and decisions were given. What will happen to such judgments once we revert back to the pre-3rd November situation?

 

One solution given by some senior jurists is that if any party involved in these cases is not satisfied with the decision they can always go for the review with the “real judiciary.” Fine, it looks simple, but this means plaintiffs like Qazi Hussain Ahmed can take the President’s election case back to the “real judiciary”, which was sacked by him. The government has taken care of such an eventuality by quickly moving a surrogate review petition and getting an equally quick dismissal. And Imran Khan can ask for a review of the court order which has accepted the legality of the NRO. What would be the political implications of this: both Zardari and Musharraf would be thrown on the same side, if decision comes against their wishes. One view is that even these particular judgments can be condoned in the spirit of the national reconciliation between various pillars of the government and by invoking doctrine of de facto.

 

Second, what would be the fate of the present judges who took oath after 3/11? Simplistic answer would be chucking them out. But many politicians and lawyers feel that instead of straight forward dismissal, their cases should be considered on category basis.

Category A: Those judges who were part of the previous bench, one retired Supreme Court judge said, should go back to their respective previous positions. Another view is that they had violated the 3rd November interim order, which declared the Emergency unconstitutional. Hence their cases should be referred to the Supreme Judicial Council (SJC) on charges of misconduct. SJC should then take a lenient view by just reprimanding them instead of recommending their dismissal.

 

There are also some newly alleviated judges to the Supreme Court who had retired previously from the superior courts. These gentlemen, all agree, should be relieved.

 

Category B: Those judges who were alleviated from the judicial ranks. Even these judges some lawyers say should be accommodated as junior judges because they had no choice but to accept the alleviation. Other solution is that they should pass through the process of normal selection procedures and if found fit should be alleviated or sent back to their previous positions.

 

Category C: Those judges who were lawyers and jumped to join the bandwagon taking advantage of the situation. Most senior lawyers and retired judges I have talked to feel that they will have to go home and go through the selection system as laid down in the book.

 

Top leaders of the new coalition privately agree that most crucial issue of this imbroglio is that the President is not going to go away in the near future given the existing balance of power. And he does not want to co-exist with the CJP Iftikhar Chaudhry. So of the two mighty gentlemen, who would rise to the occasion and show he cares for the people of Pakistan? It’s a tough question. My suggestion would be that the CJP should be restored to his due position and once his stand is vindicated he should proceed on leave to let the situation cool down. The country has suffered a lot in the last one year because of this conflict between the judiciary and executive. The new government should then nominate the CJP with his blessing for some highly respected international posting. Whether the President would bow out in the same spirit it’s hard to say. If he does he would be the great beneficiary as he may go out when a segment of population still likes him. Picking up the right time for an exit needs the right vision and acceptance of the fact that nobody is indispensable in this mortal world.

The fatigued people of Pakistan are looking to their political leadership, lawyers leading judiciary movement and the civil-military establishment for mental and physical peace. Please listen to the sound of the tension and cracking nerves! (ayazbabar@gmail.com)

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