The judiciary and its independence

Daily: Pakistan Observer
Date: 01.11.08

On October 28, 2008, new blood has been infused into the life line of the lawyers’
movement. Ali Ahmed Kurd of the Progressive Group won elections of the Supreme Court
Bar Association and became successor of Munir Malik and Aitzaz Ahsan. On the other
hand, Mohammad Zafar, the opponent of Kurd, was supported by the Peoples Lawyer
Forum which toed the line of the incumbent government. The overwhelming win of Kurd
reiterated and reinforced the resolve of the lawyers that they require reinstatement of the
judges rendered deposed (afunctional) on November 3, 2007, by the then Chief of Army,
General Pervaiz Musharraf.

The point is not whether or not Kurd can galvanise the movement to make the lawyers
achieve their objective. The point is for how long the people of Pakistan can bear the de
facto status of the Supreme Court of Pakistan. Except in Pakistan, not in any country of the
world can be found the highest court functioning on the hope that one day its status will don
constitutional attire.

The dilemma attached to the current status of the Supreme Court is that the court derives
its legitimacy from implementation and effect of its decisions rather than from the
Constitution of Pakistan: since the decisions of the court have been implemented and have
taken effect that is why the court is valid. This situation is contrary to the practice in all
countries of the world where the constitution devolves legitimacy on the court. In other
words, since November 3, 2007, all the decisions of the de facto Supreme Court are
provisional and have been waiting for a constitutional cover which can come in the form of
the forthcoming Eighteenth Constitutional Amendment.

In the Tikka-Iqbal case, the de facto Supreme Court decreed that the deposed judges had
been sacked on Nov-3. Moreover, in the proposed amendment in the Constitution, the
incumbent government is intending to incorporate Article 270CC, which states that judges
who had “ceased to continue to hold office in pursuance of the Oath of Office (Judges)
Order 2007 shall stand restored to the position and seniority they were holding on
November 2, 2007.” Any constitutional amendment validating reinstatement, in addition to
validation of the Tikka-Iqbal case, will mean that, in relevance of time, the judges were firstly
dismissed on November 3, 2007, and then reinstated by the constitutional amendment, say,
in 2008. That is how the proposed package of constitutional amendment will not only give
constitutional cover to Nov-3 acts of Musharraf but also prove that the judges were restored
through the amendment.

The current situation indicates that whosoever occupies the building of the Supreme Court
is eligible to issue decisions after attaining the status of the de facto court. It is as if the
building of the Supreme Court were a squat. Is squatting the building of the Supreme Court
is what the fate of the Pakistanis? This situation is the new wonder fashioned by the legal
advisors of Musharraf to keep him around. The major challenge confronting Kurd will be
how to get the building of the Supreme Court – vacated and then – handed over back to its
legal owners.

The major lead of votes for Kurd was from the citadel of the lawyers’ movement, Lahore,
indicating thereby the place where the major battle for independence of the judiciary will be
fought. Moreover, with that win, the forthcoming Nov-3 protest in Islamabad on the
constitutional avenue, as being programmed by the lawyers to mourn the black day passed
a year ago, is supposed to attain different colour and shape. The significant aspect of the
demonstration is that the deposed Chief Justice, Iftikhar Mohammad Chaudhry, will also
take part.

Objectives of many movements in the world never achieved. Nevertheless, what was
appreciated was the way, well or badly, one acquitted oneself during the movement. Most of
the deposed judges fell victim to conspiracy against independence of the judiciary and got
their name expunged from the list of the ‘last men standing.’ With the benefit of hindsight, if
the leaders of the lawyers’ movement had expostulated with the re-employment aspiring
deposed judges on the repercussions of their step, the pressure on the left-over deposed
judges would have been lessened. Moreover, if the first wave of the judges, who were
poised to be re-employed, had been criticized – even if not denounced – the second wave
of re-employment would have been averted. In the same vein, had the offer of re-
employment turned down by the judges, who have now got re-employed, there would have
been more happiness today among the people who were dreaming high. Since the
beginning of the movement, the way the people came out to join attested to the strength of
the principle that Constitution should reign supreme. The judges who got re-employed
before meeting the objective of the movement – independence of the judiciary – have
disappointed all.

The de facto Chief Justice Abdul Hameed Dogar took oath under the PCO II and later on
under the 1973 Constitution. If that way of oath-taking brings him into the folds of the
Constitution, the Article 209 of the Constitution offers a procedure for removal of the
judges: either the Supreme Judicial Council can remove a judge or the judge himself may
tender resignation.

On the other hand, there are various questions haunting the Pakistanis in general. Why
has the de facto status of the Supreme Court become a fait accompli of the Pakistanis time
and again? For how many times the de facto precedent will pave the way for the coups to
be staged? Finally, is there an end to the de facto-ism?

The answers to all these questions lie in the action of the de facto Chief Justice, who can
end the de facto phase by tendering resignation.

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