April Issue 2009

The organisers of the lawyers’ movement for the restoration and independence of the judiciary, could not have been accused of niggardliness in promising rewards to the people. From an end to police excesses and loadshedding to the elimination of corruption, unemployment and poverty, the wishlist had a cure for every major social affliction.

But as time passes, the public will discover the virtues of realism and learn to absorb the shocks of disappointment. Except for their expectations of a radical improvement in the justice system in terms that have a meaning for ordinary citizens, especially the poor and the marginalised, the other promises may well remain unfulfilled.

One of the key results the people will expect is related to the issue that inspired the movement — Justice Iftikhar Mohammad Chaudhry’s famous ‘No’ to Musharraf’s diktat. They will hope that from now onwards, the judiciary will not validate the abrogation, suspension or subversion, in any other form of the constitution, nor will judges violate their oath of office. Indeed, a proposal to this effect found its way into the PPP’s constitutional package last year — both of the above-mentioned aberrations were categorised as subversion of the constitution amounting to treason. One hopes that the judiciary will not be tested on this count in the near future though the danger of the apple-cart of democracy being upset at any time cannot be dismissed altogether. However, the overarching nature of this issue notwithstanding, there are several other questions the people would like to be squarely answered at the earliest.

The leaders of the movement have themselves been quick to recognise the need to undo the politicisation of the judges. That the 2007 attack on the judiciary as well as the resistance to it were political matters will not be denied, but a defence of the politicisation of judges is neither possible nor necessary.

Reports have already appeared to the effect that the restored judges will no longer indulge in activities they had to carry out in support of the movement. Further, several leading lawyers have sworn not to appear in Justice Chaudhry’s court. But this matter cannot be disposed of through over-simplification. In the final phase of the movement, the events followed a sequence that many could not easily comprehend. The mystery surrounding the force(s) opposed to the judges’ and the chief justice’s restoration and the benevolent decision-maker(s) has led to speculation about what a part of the media described as a grand deal. One hopes that no compromise on the majesty of a non-partisan system of justice is implied.

However, the old theories of keeping the judiciary completely isolated from society are no longer valid. In a democratic environment, the justice system cannot ignore the people’s social rights or the need to promote the public good. Unfortunately, the judiciary has already earned for itself a negative point by sometimes upholding private belief, in defiance of law and settled practice.

Quite soon, the judiciary will have to make a choice between law and belief, while dealing with the serious crisis created by the system of religious courts in the northern parts of the country. Among other things, the judiciary will be required to sustain its traditional repudiation of a parallel judicial system and also to weigh the consequences of any extra-legal concession to belief.

As soon as the restoration of judges was announced, the over-exuberant media raised questions about the future of i) the judges who took oath under the PCO and retained their offices; ii) the judges who were sidelined on November 3, 2007, but were allowed to return to the bench after taking a fresh oath (under the constitution and not under the PCO); and iii) the judges appointed after November 3, 2007, and particularly those appointed by the government over the past few months.

The judges in the second category pose no problem as in their case the government, whether on its own or whether under the movement’s pressure, undid the wrong it had done them. The matter concerning the judges in the first category, labeled rather pejoratively as the PCO judges, may be disposed of as a past and closed transaction. If that is not possible, guidance may be sought from the late Justice Kayani’s observation on judges’ being asked to take oath upon oath in the Ayub period. While wondering at the government’s lack of wisdom, Kayani had refrained from denouncing the judges. Besides, it is difficult to fix a time in the history of Pakistan when we were free of ‘PCO judges’ or the likes of them.

That leaves the judges appointed after November 3, 2007, and those appointed by the present government. Some of the new appointees, like quite a few of their predecessors, may have caused eyebrows to be raised, but the tendency to condemn them en masse is a product of malice. References to the “tainted past” of the appointees do not behove persons who dare to swear by the law. It would not be fair to throw these judges at the mercy of the Supreme Judicial Council, as was done three decades ago, or to invoke the controversial and considerably devalued verdict in the judges’ case of 1996. Most of the new judges have been appointed for one year only, and at the end of this period they will be considered for confirmation. If it is necessary to advance that exercise, the parliament may, by law, require their cases to be examined by an independent judicial commission so constituted as to inspire confidence in its non-partisanship and ability to uphold the highest values of judicial propriety.

What is more important than any other matter concerning the ‘PCO judges’ or fresh appointments is the need to resolve issues with the maximum possible speed or else the justice system will attract unwholesome controversies.

At the same time, due attention needs to be paid to the people’s yearning for expeditious and inexpensive adjudication of matters without sacrificing the inviolable norms of justice. Incidental to this issue is the future of public interest litigation and the use of suo moto powers. The concept of public interest litigation has been considerably vulgarised by the emergence of quite a few self-seekers, who, merely by donning the robes of defenders of public interest, cannot hide their status as touts of one group or another. Public interest litigation will have to be rescued from the hands of professionals in the service of vested interests. The task can only be accomplished through enlightened collaboration between the bar and the bench.

Likewise, the experience of the past many years demands a thorough review of the use of suo moto powers. The process has been hailed by all and sundry, but now it is time to critically evaluate it. How many suo moto cases have actually reached a happy conclusion and how many were eventually left unresolved? Besides, the superior judiciary cannot possibly address each wrong caused to a community or an individual. If every case of illegal detention or domestic dispute or surrender of girls as vani or killing for ‘honour’ has to be taken up by the apex court, then the obvious implication is that both the administration and the subordinate judiciary have failed to discharge their responsibilities. The answer lies in gingering them up instead of loading everything on to the superior judiciary’s already heavy workload. In fact, a curtailment in the number of suo moto cases will be in the interest of both the judiciary and society.

However, there is something to be said in favour of reviving the Human Rights Cell at the Supreme Court, with a clear message to the public that every complaint will not be put on the cause list. Short of hearing all public grievances, the Supreme Court can use the information furnished in public complaints for reference to the state organs, legislative and judicial as well as executive, and for consideration by the law reform bodies.

Finally, there are the all-important issues of improving people’s access to justice and arresting their growing tendency to prefer informal forms of justice to the formal ones. This is something the judiciary cannot accomplish by itself, though it can make a sterling contribution. This requires radical reforms in laws and their enforcement without any further delay. The sooner the challenge is accepted by both, the state and the civil society, the better.

“Now a judge would think a hundred times before validating any martial law”

— Ali Ahmed Kurd
President, Supreme Court Bar Association

Q: Chief Justice Iftikhar Mohammad Chaudhry not only took oath under Musharraf’s PCO, but was also part of the bench that validated Musharraf’s martial law. Then why do people like you consider him the symbol of an independent judiciary?

A: Lawyers have always opposed martial law. When Musharraf trampled upon the constitution and seized power, it was then that the lawyers began their struggle against him. We set on fire copies of the Supreme Court orders that had validated martial law. We used to tell judges that the lawyers [will] struggle against martial laws and you people (judges) must support it. However, the judges would say that when the masses themselves are silent, why do lawyers want to put the burden of 160 million people on the shoulders of the judges. The judges never supported our movement. But a person rose from the ashes of the paralysed judiciary on March 9, 2007 in the shape of Iftikhar Mohammad Chaudhry. He did not bow his head before the generals and refused to take orders from them. Therefore, we consider Iftikhar Mohammad Chaudhry a symbol of the independence of the judicary in the country. The lawyers’ fraternity stood by him, and some lawyers even embraced martyrdom.
Q: Do you think the law of necessity has been buried forever as a consequence of the two-year-long struggle of the lawyers?
A: I think it has been buried; this “curse” will now end. But one cannot predict that the chapter of martial laws has been closed forever. However, now a judge would think a hundred times before validating any martial law.
Q: What would be the strategy of the lawyers vis-a-vis the judges who, after November 3, took oath under a fresh PCO?
A: There are four types of judges in the superior judiciary now. Firstly, those judges who were restored on March 16, 2008 as a consequence of the lawyers’ struggle. Secondly, those who took oath under a fresh PCO on November 3, 2007 or later. The third category is of those judges who took fresh oath after a change of government — but not under the new PCO. And the fourth category comprises those who were appointed by the new government.
We never interfered in the affairs of the judges. We could have demanded the ouster of all those judges who had taken oath on November 3 — but the entire judicial system could have collapsed as a result of such a demand. We are responsible people, so we left this matter to the Supreme Court. We told them that the judges who were restored enjoyed the confidence of the masses. The decision of the seven-member bench, headed by Chief Justice Iftikhar Mohammad Chaudhry, in which the bench had ordered that no judge should take oath under the new PCO, is in place. It is now up to Supreme Court [to decide].
Q: The deposed judges had already been restored before the arrival of the participants of the Long March in Islamabad on June 14. So why didn’t you stage a sit-in? Had you thrashed out some deal with the government?
A: We had started our struggle against the LFO (Legal Framework Oder) with 200 lawyers. But three to four lakh people joined us in Islamabad on June, 14, 2008. We had never seen such a huge gathering in the past, and we were concerned that such a huge mob could get out of control. Therefore, we decided not to stage a sit-in for an indefinite period and, instead, announced the end of the Long March that very day.
Q: Do the lawyers plan to launch another movement, this time for introducing reforms in the judiciary?
A: When we gave the slogan of independence of the judiciary to the people, they fully supported us in the hope that they would be able to secure justice from both the superior and the lower courts.
When the notification for the restoration of Justice Chaudhry came, we were present at the justice’s residence. He read out the notification and expressed his satisfaction over it. Then we bade farewell to the chief justice and told him that from now onwards, we will have no relations with you. We also told him that we had given the slogan of an independent judiciary to the people and that on behalf of those very people, we were informing him that there was corruption and inefficiency among the judiciary. The judges tended to favour influential people and that we intended to keep the pressure on, to remove [this anomaly].
Q: Pakistan has not had any political stability for a while now. What is the major reason for this?
A: In my view, the judiciary has been the biggest culprit. Had the judiciary been strong, it would not have supported the generals. Democracy and democratic institutions would have become stronger and this could have saved the country from facing one crisis after another. Besides the judiciary, the feudal system has also been a big hurdle in the way of stability.
— Abdul Wahab