Guest Blog by Amjad Malik
Economy is nose diving in Pakistan and people with load shedding, wheat and oil crisis are forced to take law in their own hands and we saw people burning the robbers in Karachi and indecisiveness is breeding law and order crisis, apathy and decline where any thing can happen as a result and whatever happens is not at all in control of the human mind and may affect the best interest of Pakistan especially when foreigners are flying like eagles on our rear borders. Those who came declaring themselves the champions of democracy are solving constitutional matters outside the Parliament and democrats this time have made parliament a rubber stamp not the dictator, Judiciary is on the road, Justice Dogar is unacceptable to majority and he is facing extreme resistance by lawyer fraternity, CJ Iftikhar has a personality clash with the President, establishment is confused waiting for further instructions, Police is unable to enforce law, and people doing road justice by force in the absence of credible judiciary and Malik Qayum fame tapes are in the market spreading revelations about schemes to keep Sharifs out of election race. In these circumstances 10th of June Long March of lawyers have hidden stings in it which are many fold and they may attempt to put deposed judges back in the Supreme Court by might which may result in a successful lawful coup or it can be counter productive to invite a counter coup by President throwing his wrath on the parliament for their indecisiveness, breaching their pacts and neglecting to avoid the economy from decline or at best military intervention to stop this unrest multiplying reaching no where which all ends in the collapse of the 18th February popular mandate of the people of Pakistan and in the end so much so for the democracy of Pakistan and people’s vote.
I for one, feel that we all are bound to look after the best interest of the state and at best if this uncertainty is allowed to loom, it can be disastrous for the state economically, politically, and socially. As any constitutional package containing unpopular clauses will hardly get to the stage of royal assent at least for a year unless Q or N league supports, I feel lawyers as well as people of Pakistan are getting restless because of this hit and run politicians who are ridiculing the judiciary by the very delay in restoring them. If they are unable to reach consensus then there must be some confidence building measures to show their commitment akin to the circumstances where politicians supported Musharraf to get elected by abstaining to vote instead by remaining in Parliament and in exchange getting a hero’s welcome on 18 October and issuing of a National Reconciliation Ordinance by the President who swore to keep BB and Babu out at every cost. Though we all are the passengers of the same boat and none have the exact answer but I have the following few suggestions throwing some workable scenarios for the legal hawks to brain storm in case the time comes for possible solutions;
- The political clan may Offer Chief Justice to resign with full political backing and invite him be the candidate for the President of Pakistan. He will be an ideal candidate to be the President carrying the symbolic federation support as well as lawyers and civil society especially after clipping the wings of the President turning it into a ceremonial status. The argument in favour would be the justiciablity of his position once he is restored as his brother judges can do a better job in supreme Court and he has done his bit (if he agrees), Alternately;
- Chief Justice is restored after a resolution with an executive order withdrawing earlier law secretary notification immediately making him functional who takes charge and decide the fate of the decision of 3rd Nov PCO, 23 Nov 2007 case of Iqbal Tikka Khan, and settle the issue of post 3rd Nov appointment of judges via full court reference and issue guidelines. That will be an ideal solution and Parliament can bring constitutional package to sort out the rest. Alternately;
- To start with all the 59 judges must be restored to their positions immediately by Executive Order making them functional so that it seems that politicians are willing to settle the judges issue. Chief Justice Iftikhar Choudhary is allowed all the privileges and protocol of the Chief Justice in waiting and he is allowed to rest until consensus is evolved to restore him as CJ i.e viable mechanism and or political consensus by majority on realistic Constitutional Package. In the interim most senior judge of the SC is made the Chief Justice of Pakistan with an understanding that Justice Iftikhar Choudhary will take over once back. Justice Dogar and others who have taken oath in violation of the 3rd November judgement are left on the mercy of the full court of 2nd Nov which decides what should be course of action as to the best disposition of their taking oath, early retirement and or reference to the SJC and give guidance to deal with the other two categories i.e those who were freshly appointed but taken oath under PCO and those who were freshly appointed and have taken only oath under Constitution of 1973 only bearing in mind the earlier ruling in Al-Jehad Trust case. If any post 3 Nov PCO judge disagrees to the restoration of the judges, his reference is filed at Supreme Judicial Council which decides the fate of the judge in question on case by cases though to me in any event guidelines must be given by full court of 2 Nov 2007 as to best course of action to deal with the three categories of post 3 Nov judges. Alternately;
- If that is not acceptable then Judges retirement age can be extended to 75 as in United States there is no retirement age for the judges and Saeed Uz Zaman Siddiqui along with clean judges the likes of Justice Wajeeh uddin, Justice Nasir Aslam zahid, Justice Mamoon Qazi of the SC who were acting on the fateful day of the issuing of PCO in 2000 must be brought in to make up the required number of SC judges as per constitution which is 17 and all those undesired judges by the fraternity are either given an option to resign, face possible SJC reference or they are made non functional until their eligibility as well as appointment is scrutinised by the Highest Court via full court checking the validity of PCO too in the larger interest of the institution. Alternately;
- I know for the fact that the ruling camp would be dying to restore and resubmit Art.209 reference against Chief Justice on the premises that the actual reference on facts have not been adjudicated yet and restore the rest of the judges keeping all the PCO judges too which will be disastrous for the independence of judiciary drive and for any political party to take this bitter pill. Public will not accept this onslaught too so rulers must be careful too. If we leave the 2 Nov judges to decide the fate and future of their brothers , it will be best as the same would be the case in Pakistan army as the Chief of Army Staff will be left with wisdom, will, choice & authority to do justice with his own Corpse Commanders if any is undesirable as we saw in the case of Lt. General Hameed Gul, Lt. General Tariq Parvez or at best Lt Gen Zia Uddin Butt. We saw no executive interference, no summary trial and no adjudication was ever seen by civilian authority despite conduct issues against those, then why so animosity against CJ, the same is required for the sake of saving this institution which is core to the heart of the people.
I am sure these may sound hypothetical scenarios, however post 10 of June 2008 Long March these options will sound blackberries as who knows where this movement leads and it is not guaranteed that things will turn out as planned, the failure of politicians to come up with the logical conclusion safeguarding the larger interest of state as well as one institutions along with avoiding collusion with other will be a challenge for them to solve this mystery at a crossroad otherwise, anything wrong, they will bear the blame too and who knows lawyers and general public floods the streets on that day breaking the famous status quo. Rulers must fear from that day as in that case public will hold accountability and will ensure justice and there will be no 90 billion tax free meal at public expense as Americans themselves say that there is no free lunch in the world. Public will demand accountability of all, where is our Parliament?
Amjad Malik is a Solicitor-Advocate of the Supreme Court (England) and a political analyst based in UK