Independence of the judiciary

Daily: Pakistan Observer
Date: 29.10.08

It seems that, by effects, exclusion of General Pervaiz Musharraf from the national scene
has sapped the oomph of the lawyers’ movement: absence of antagonism to Musharraf has
attenuated the sting of the movement – antipathy being the basic ingredient of every
movement. Presently, the movement is more pro- than anti- to someone.

The lull observed by the lawyers’ movement in the month of Ramadan did the rest of the
job. Most of the deposed judges of Supreme and Higher judiciary acceded to the offer of re-
employment given by the incumbent government making thereby the claim of Asif Alif
Zardari true that (most of) the judges were just craving for (re)employment – and not for
independence of the judiciary. Even if it has not been acknowledged, re-employment of the
deposed judges inflicted a heavy and unbearable blow on the movement. The re-employed
judges offered a great chance for the pressure to be shifted from the shoulders of the
government (to reinstate all the deposed judges) onto the shoulders of the rest of the
deposed judges striving for independence of the judiciary (to compromise sooner than
later).

But the act of the re-employed judges – to get re-employed without compunction – is not
the only dilemma. An additional quandary is that the leaders of the lawyers’ movement –
name any – are averse to reviling the judges who resorted to re-employment. Hardly is
there any one who is ready to acknowledge that by getting re-employed, the judges have
concede their removal lawful from their posts through an executive order (known as PCO-II)
under the martial law (imposed in the name of emergency) on November 3, 2007. To put it
more precisely, the re-employed judges have given in to the assertion that judges can be
dismissed through an executive order and that the presence of the Supreme Judicial
Council is superfluous in this regard. In short, the possibility of sacking of the judges
through an executive order and the subsequent re-employment (with the previous seniority)
is bound to buoy up the prospective military dictators to stage a coup in the future.
Nevertheless, by implications, the same factor has made the post of a judge more
vulnerable as an executive order issued by any (higher) authority will have potential to sack
a judge. If this is not, what otherwise is the meaning of subservience of the judiciary?

The expectation of the people from the lawyers’ movement was that the deposed judges
would not take any step that could encourage the military dictators to deprive the people of
Pakistan again of a fair democratic experience. Surely, the civil society, which had
committed itself to the cause of independence of the judiciary, has been betrayed on
account of not taking their aspirations and resolve into consideration by the re-employed
judges.

The re-employed judges submitted before the first anniversary – November 3, 2008 – of
their removal from their posts could visit them. Nevertheless, the core of the defiant,
deposed (afunctional) judges including the de jure Chief Justice Iftikhar Mohammad
Chaudhry is yet to yield to the pressure mounted consequently by the re-employed judges.

It seems that there are some problems intrinsic to the movement. The leaders of the
lawyers’ movement have been trying to draw a line of demarcation between the PCO-II
judges and the re-employed judges: the PCO-II judges submitted to the military dictator but
the re-employed judges joined the judiciary after departure of the dictator, Musharraf. The
proponents of such argument forget that the point was not presence or absence of
Musharraf but his acts of Nov-3: defilement of the Constitution. The common point shared
by both the PCO-II and the re-employed judges is that they validated Nov-3 act of a military
dictator. There is yet another point comes to surface: the credit of re-employment of the
judges goes squarely to the lawyers’ movement. The supporters of this argument overlook
the fact that the objective of the lawyers’ movement was not to secure re-employment of the
deposed judges but to restore the judges to pre-Nov-3 (2007) position and bring about
independence of the judiciary eventually.

Perhaps, the lawyers consider that the matter is between the bar and the bench and that
the civil society and the political parties are not party to the issue. Hence, it is up to the
lawyers only to determine who is right and who is wrong and what course of action should
be taken at what stage. By so thinking and doing, the movement has been suffering from
the symptoms of isolation, as the extraneous factors have been overtaking the movement:
worsening law and order situation, deepening economic crisis and deteriorating electricity
supply have distracted the people from the cause of independence of the judiciary.

No doubt, by the acts of Musharraf, the major brunt was borne by the lawyers but the civil
society was also the biggest stakeholder to aspire for the goal of independence of the
judiciary. Suppose, if the rest of the deposed judges also accept re-employment and under
the policy of compromise, the lawyers stay silent, as they observed silence on the past re-
employments, who will be the ultimate victims? Of course, the sufferers will be the civil
society because the people will be deprived of their inviolable right to have access to fair
justice, which cannot come without independence of the judiciary. Further, the lawyers in
general may get busy with their law practice to earn their livelihood, but the sufferers of an
amenable judiciary will be their clients, the people of Pakistan. The political parties will also
share the collateral damage. Unequivocally, the re-employment of the judges was
dependence of the judges on the incumbent government to earn their bread.

The bar and the bench have to decide whether they prefer to earn bread or strive for
independence of the judiciary. To make the judiciary independent, the stakes of the civil
society are higher than the bar and the bench.

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