Judicial Appointments (March 03, 2010) Daily Times

Difference of opinion among people and institutions of the state are the essence of any democratic polity. In all democratic societies such issues are discussed publically and resolved through the on-going dialogue and discussion process. Arguments in such debates help in evolving a system. In younger democracies like ours these debates are noisy and at times it appears that no synthesis could be evolved by the society. If such a breaking point comes the democracy is at a loss. If the differences are resolved peacefully, democracy wins.

Then there are progressive forces that help in resolving the contradictions in the process of evolving institutions. They play a role in speeding up the progress in a society. Countervailing forces create hurdles in the resolution of contradictions. This slows down the inevitable economic progress of the society and evolution of the democratic process. Such forces are described in the history as reactionaries. At present these reactionaries are trying to instigate a clash between the institutions of the state, irrespective of the fact that the consequences would be harmful for the growth of the infant democracy of Pakistan. They may have some self-perceived good intentions to bring down individuals who have a tainted past, but either they do not understand that the whole process of the evolution of history is not person specific. Or they are not that simple and well-meaning. They fail to accept the fact that dialectics of history is an inter-play between many forces; individuals are small actors in this grand opera.

Recent success of the democratic process was solution of the judges’ alleviation and appointment tangle. The judiciary finally had its way as the elected government stepped back from its earlier stand. The latter rightly got flak for first opposing the judiciary’s stance and then conceding it to avoid the inevitable clash. However, the transparent principle of seniority was undermined in this reconciliation. Black coats in the chambers and the bar rooms celebrated their victory. According to the laid down law they were right, but according to the moral principle they were not. It is now being said that a ‘chain of command’ has been set. This reminds me of my late friend Justice Sabihuddin Ahmed who always held that each judge is supposed to apply his mind independently and should not be influenced, leave alone commanded, by his senior or junior brother judge.

While all the demands of the judiciary were accepted by the Prime Minister in his meeting with the Chief Justice of Pakistan, there are no signs of diffusion in the over-zealousness of the judiciary. On the other hand the political parties have shown further flexibility by dropping the condition inscribed in the COD that the commission for the appointment of judges should be headed by a judge who had not taken oath under a PCO. The view taken by all the political parties in this regard is right as PCO sins of the judges and their subsequent validation of each military dictator’s take-over were washed away by the heroic struggle led by them. The same judges stood against General Musharraf’s clumsy tactics to send the reference against the CJ to the supreme judicial council. The CJP’s courageous ‘No’ to the demand made by President General Musharraf to resign made him a hero. Everybody overlooked the charges levied against him in the reference.

The political government’s submission is that in the same spirit the blood of Benazir Bhutto and 11 years incarceration of Zardari have washed their past sins. Here I would agree with the critics of the government that the nation has given political parties a fresh chance. But so far they have not refrained from committing fresh sins. For that media criticism and judicial accountability is justified.

Unfortunately this doesn’t seem to be the end of the judiciary-executive conflict soap. The struggle for space and power is likely to continue. The next episode would start perhaps next week when the 18th Amendment to the constitution would be presented by the parliamentary committee. Besides striking down the controversial clauses of the 17th Amendment, the change in the procedure of appointing fresh judges to the superior judiciary would also come up for discussion. The new proposal which takes away one man’s discretionary powers for appointing and promoting judges are proposed to be transferred to a judicial commission and further ratification by the parliamentary committee. Already many leading lawyers are expressing their views against the composition of the judicial commission and are opposed to having a parliamentary committee. It is thus feared that some litigation-happy lawyers and the ‘usual public interest litigants’ may challenge the amendment. Their plea could be that the proposed amendment is against the basic spirit of the constitution which guarantees separation of judiciary and executive. So the nation would be once again subjected to nerve-racking debates on these legal complexities.

Another parallel sub-plot of the judicial soap would be the case regarding immunity granted to the President in the constitution. In view of the mood of the judiciary, political pundits are not hopeful that President’s immunity would be held valid by the court. That would lead to the opening of all cases against Mr. Zardari. Those who claim to be his friends say he will contest the cases but not step down unless he is convicted.

Terrorist’s acts and political instability created by legal battles have already derailed the economic progress of the country, which directly affects the common man. Bringing terrorist forces under control may take years. But can our judiciary and executive please call a truce for the sake of the suffering people of this godforsaken country? (ayazbabar@gmail.com)

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