analysis: Solving the judicial crisis —Ijaz Hussain
If Parliament decides the issue on the basis of a resolution or an executive order, it will most likely be challenged before the SC. Will Justice Dogar and his fellow judges declare Parliament’s action illegal and create a constitutional and political crisis in the country?
Aitzaz Ahsan, President of the Supreme Court Bar Association, has given an ultimatum to Parliament to restore the deposed judges within 30 days, failing which he has threatened to take to the streets, a plan that includes a march on Army House. Civil society has supported the move and the public at large appears to approve of it.
However, some quarters have criticised it. For example, Musharraf apologists plead that the proposed course of action should be shelved as, in their opinion, it is likely to pit Parliament against the Presidency in a confrontation that Pakistan at this point in time cannot afford.
Similarly, others contend that the issue should be left to the people’s representatives in Parliament to deal with the matter as they see fit and the nation should accept that verdict.
The first proposition is a variant of the argument advanced by the “transitionists”, according to which the restoration of full democracy should be postponed till we can successfully grapple with terrorism. It is undeniable that the issues of terrorism and economic meltdown enjoy priority as the future of Pakistan depends on how we handle them.
However, democracy, along with the restoration of judges, is no less important. In fact, it is in a sense more important than the other two because they can be effectively handled only within the framework of a genuine democratic order. As to the plea that confrontation should be avoided because it can be catastrophic for the country, it cannot be accepted because illegal rulers like Musharraf will always hide behind such arguments to perpetuate their stay.
The proposition that the judges’ issue should be left to Parliament and that we should accept the verdict of the elected representatives is appealing. However, on closer scrutiny, one tends to reject it because the underlying supposition that the solution will reflect the will of the people is fallacious. This is so because our political parties after being voted into power more often than not forgot their promises instead of translating them into policy. Besides, the past record of the PPP and the PMLN on judicial matters is not very reassuring.
Furthermore, despite the declaration by the two parties to get the judges restored within 30 days, at least the PPP’s commitment seems to be wavering. This is evidenced by the stand that PPP-affiliated lawyers have taken in the Pakistan Bar Council meeting for the discontinuation of the movement for the restoration of judges, along with advocating a two-thirds majority in Parliament for their restoration.
Despite the threat to take the matter to streets, the fact remains that civil society is basically banking on Parliament to resolve the issue. However, the legal community is divided on the strategy to achieve their goals. There are lawyers who believe that the illegal changes that Musharraf introduced on November 3 are now part of the Constitution, and that they can be removed only through an amendment on the basis of a two-thirds majority in both houses of Parliament.
Then there are others who contend that these changes are not part of the Constitution as an individual who had no authority to do so introduced them, and that they can be removed through a simple National Assembly resolution or an executive order. There have been interminable debates on the issue in the media including an encounter between Aitzaz Ahsan and Attorney General Malik Qayyum on live television.
The controversy can be better appreciated and a solution found if we understand the difference between present and past situations.
Previously, whenever a military ruler introduced changes in the Constitution, Parliament had to accept them as a fait accompli. And if the legislators wanted to get rid of some of them, they had to do so through an amendment to the constitution rather than through a resolution or an executive order. This was so because with the strongman still in uniform and/or the country under martial law, the ruler was in a position to dictate terms. The legislators had no option but to accept the changes in exchange for lifting of martial law and/or the removal of uniform. The adoptions of the 8th and 17th amendments are cases in point.
The present situation is radically different from the past because there is neither martial law in the country nor is Musharraf in uniform. The latter has nothing to offer to legislators as quid pro quo for accepting the changes he introduced. The question of whether the issue is to be resolved through a simple resolution, an executive order or a two-thirds majority is basically one of balance of forces between the president and Parliament. And unfortunately for the former, they do not favour him.
Those who oppose the restoration of judges through an executive order mostly do so on the ground that such a course of action is not healthy for the functioning of the judiciary. They fear that a future government that disapproves of a particular court decision will be tempted to overturn it through this device. This argument is not well founded because, the present situation being unique, the dictum “desperate situations need desperate remedies” applies; and that no government under normal circumstances would dare do it.
Notwithstanding the genuineness or otherwise of these fears, the fact remains that these critics indirectly accept the validity of this device. Similarly, the argument that judges cannot be restored through a simple resolution because it is not binding is irrelevant because the executive, which is to implement it, is more than willing to do so.
Rumours are currently rife that a settlement is being worked out behind the scenes that, while envisaging the restoration of judges, proposes the retirement of the CJP or shortening his term. According to another report, Musharraf is willing to surrender his powers under article 58(2)(b) in return for abandoning the restoration of judges.
The coalition government should categorically reject these proposals as did the civil society not long ago when Musharraf launched a trial balloon proposing the restoration of judges including the CJ on the condition that they would not take up any case involving him. The movement is not about the number of judges to be restored but independence of the judiciary, of which CJ Iftikhar Muhammad Chaudhry is the symbol. Besides, the first thing that civil society expects the restored judiciary to do is to take up the issue of Musharraf’s eligibility as a presidential candidate.
It signifies that any “out of court” settlement is virtually out of question. And if Parliament decides the issue on the basis of a resolution or an executive order, it will most likely be challenged before the SC. Will Justice Dogar and his fellow judges declare Parliament’s action illegal and create a constitutional and political crisis in the country?
The answer lies in the womb of history. However, one thing is certain: the current Supreme Court holds the key to resolving this enormous imbroglio. These judges have an opportunity to rise above their personal interests and reject any such application based on a conflict of interest.
Given that the coalition government is ready to accommodate them they should take this courageous stand. If they do they will immortalise themselves and earn the nation’s gratitude.
The writer is a former dean of social sciences at the Quaid-i-Azam University. He can be reached at firstname.lastname@example.org