You have to stand guard over the development and maintenance of democracy, social justice and the equality of mankind in your own native soil. [Mohammed Ali Jinnah]

Friday, February 22, 2008

PPP's Stance on the Judiciary...

I am afraid I may be too cynical, but I saw Zardari's press conference and it wasn't exactly confidence inspiring.
When asked about restoration of judges, he dodged the issue by talking about a larger systemic change that would be brought about by the Parliament.
When asked about working with Musharraf, he dodged the issue by leaving it to the Parliament to decide.
When asked about forming an alliance with PML (Q), he dodged the issue by denying the existence of PML (Q) as a party without clarifying whether he'd ally himself with the group of 39 individuals who were elected on the PML (Q) ticket.
In a party-based parliamentary system, parties are expected to define their position on issues and members of parliament who have been elected on the party ticket are expected to follow the party line on those issues. Zardari knows that full well.
For instance, he didn't leave it for 'the Parliament to decide' whether there should be a UN enquiry into Benazir's assassination. He didn't leave it for the Parliament to decide whether the freedom of media should be protected by repealing the draconian provisions of the PEMRA Ordinance. He clearly stated his party's position on these issues and said that any coalition partners would have to agree on these pre-conditions.
Quite frankly, this talk of a long-term strengthening of the judicial institution rather than a short-term focus on the restoration of individuals merely seems to be a ploy to gain time and somehow brush the travesty of 3rd November under the carpet.
We didn't take to the streets clamouring for restoration because Iftikhar Chaudhry was a nice guy. We did it because we believe that if today the executive is allowed to get away with kicking out undesirable judges, we shall never in future have an independent judiciary in Pakistan. Assuring judges of security of tenure is possibly the most important single step you can take to ensure their independence.
To my rather plodding mind, if you want to strengthen the judicial institution and ensure its independence, you start out by reversing the damage caused on 3rd November. There can be no ifs and buts about that. Sure, if you want take further measures to reform and improve the institution, go ahead and publicly float your specific proposals - discuss it with your coalition allies and the other stakeholders including the Bar and the Bench - and pass a law. But there is no call for linking the former to the latter (particularly when you haven't even formulated any of your radical 'reformative' ideas).
It seems that PPP is creating this linkage simply to win time and eventually side-step the issue of restoration. As we saw even back when BB was alive, what Aitzaz says and what PPP says are frequently two different things. A couple of days before the election, Makhdoom Amin Fahim was asked on Geo to explain what the PPP actually meant when it talked about focusing upon the 'independence of the judiciary' rather than 'restoring individuals'. He didn't seem to have a clue. First he asked why everybody is focused on the restoration of judges removed in last November and not on the judges earlier removed by Ayub, Yahya, Zia and Musharraf (in 2001).
Well - actually Ayub and Yahya didn't remove any judges. The judges removed by Zia are either dead or over 80 years in age. Likewise, all except 2 judges (Rasheed Razvi and Mushtaq Memon) removed by Musharraf in 2001 have long passed their retirement ages. If the PPP wants to restore those 2 as well, we would be more than happy.
Also, the crucial difference between then and now is that the removal of the earlier judges through the PCO only became final once it was (unfortunately) ratified through a constitutional amendment passed by a 2/3rd majority of parliament. There has been no such ratification in the present case. Without this ratification, the deposed judges legally continue to be judges. What is stopping PPP from recognising them as such?
Fahim also said that the PPP is more interested in introducing constitutional safeguards that will prevent the arbitary removal of judges as happened on 3rd November. It seems that he was simply oblivious to the whole 9th March ruckus. Those safeguards are already part of our constitution. A judge simply cannot be removed without a enquiry before the Supreme Judicial Council. The problem was that a military dictator used brute force to simply brush aside all the constitutional restraints. What we need is the political will to, firstly, resist and secondly, reverse the desecration of the constitution. Future improvements to the constitution, while welcome, come third.
As far as Zardari's ideas about forming parliamentary committees to sift good judges from bad are concerned, I don't think I've heard a worse idea. If he means to use these committees to oversee the restoration process - decide on a case to case basis whether to restore or not - it is simply unacceptable. Musharraf had also offered to restore the judges on a case to case basis but the judges and lawyers refused to accept this pick and choose policy.
Even if he means to use this process only for future appointments, it's still a terrible idea. Our judiciary does not need further politicisation. Political involvement in the appointment of judges will only harm the long-term stability and impartiality of the institution. Even in a country like the U.S., the fact that Supreme Court judges are appointed by the President and approved by the Senate has led to a situation where judges are defined by their political affiliations and judicial decisions become dependent on whether there are more Democratic or Republican nominees on the bench. I am sure everyone remembers the 5-4 Republican-Democrat split in the US Supreme Court that allowed Bush to become President.
Our current constitutional system of appointments is not too bad. The President appoint HC and SC judges in consultation with the Chief Justice of the SC and the Governor and Chief Justice of the province concerned. The problem starts when the CJs and the Governor/President start disagreeing. In BB's second stint, matters came to a head when the PPP forced through numerous political appointees to the Bench over the objections of the CJs. Incidentally, Dogar is a product of the same period. In another famous example, a non-practising lawyer with strong PPP links was asked to take oath as a judge but needed directions to get to the High Court. Eventually, the SC resolved the issue in the Al-Jehad case by holding that the President did not enjoy discretionary powers to appoint whom he pleased but was bound to ordinarily abide by the advice/recommendation tendered by the CJs and, in case he disagreed with their recommendations, he was required to assign concrete reasons for doing so.
If the guidelines laid down in Al-Jehad are strictly followed, appointment of judges becomes a relatively merit-based and politics-free affair. However, there is one important improvement that can be made to the system which is to make this whole process of consultations/appointments/assignment of reasons between the CJs and the executive branch more transparent and visible to the public so that everyone can be satisfied that the constitutional provisions and the Al-Jehad guidelines have been followed. Once again, this would not require any constitutional amendment. A simple law passed by a parliamentary majority would be enough.
The next 2-3 weeks are absolutely crucial. Its make or break time. The lawyers put a very good show in Lahore and Karachi today. We need to raise the level of pressure all round to make it clear to all political parties that this issue will not die down.

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