Independent Judiciary "“ a long way to go!

By Nadia Khan

 

Civil society members, media, lawyers, religious & political parties, and educated elites in Pakistan support Chief Justice Ifthikhar Chaudhry and his fellow judges' restoration to negate the actions of army chief on 3^rd Nov 2007. Each one is having their own arguments for it "“ a common cause to eradicate Musharraf & his military rule. That was achieved partially. Recent functions of lawyers in Lahore and Rawalpindi have witnessed their high emotions & enthusiasm, when Ali Ahmed Kurd, in his speech has openly said that, "Enough is enough, whoso ever we would like, will bring him in office on 16^th Mar" That was the peak in last 2 years of movement with charged slogans such as "˜Dharna Hoga Dharna" means there should be a law & order situation during this "˜final protest' no matter how much Atizaz Ahsan has clarified for peaceful means in front of Parliament House Islamabad.

 

While political parties are now split over the issue of judges' restoration - PPP, MQM (A), JUI (F), and ANP stand united against the restoration of deposed Chief Justice where as PML (N), PTI, JI, APDM and smaller religious parties want deposed judges back in action along with CJ Ifthikhar Chaudhry. Among other opponents, MQM dilemma is bit strange due to confusion in which they are caught in from the beginning. Altaf Husain's, initial approach that Pervaiz Musharraf will remain be Pakistan President after winning his most-controversial elections, turned into barbaric actions on 12^th May 2007, when MQM had tried their level best, and succeed partially, to keep away deposed CJ from Karachi. Later, this approach had fallen short when Musharraf had resigned and left MQM without establishment support. That was the moment when MQM top leader had thought and proposed Asif Ali Zardari as Presidential candidate to keep their touch with powerful establishment in tact. Since then they are caught in a situation where they have to oppose deposed CJ Ifthikhar Chaudhry for no reason.

 

Islamic groups like Jamat ud Dawah (JuD) flags during such functions of depose judges indicate that CJ su moto actions against missing Pakistani case had made him hero in the eyes of common men.

 

After 4^th Mar and winning Senate majority, President Zardari would become more stiff in his approach, as aided by Farooq Naiek & Khosa, the attorney general of Pakistan and first man who got injured during lawyers protests but now turned to be against, that 80 percentage of Supreme Court deposed judges have taken the fresh oath negating the efforts of lawyers and bar councils.

 

Though deposed CJ past decisions, during 1999 to 2005, were all favoured the then military ruler, even in a case strengthen the military rule for three years period, dismissing JI petition. Only after Steel Mill privatisation case, which was orchestrated by the then Prime Minister, had turned the table and military ruler made a failed attempt to sack him like the previous rulers had done with judiciary in the past upon prime minister's ill motive advise.

 

If this sit in or Dharna succeeds and followed restoration of Justice Ifthikhar Chaudhry, would that mean an independent judiciary in Pakistan? Likely there is no clear answer, because Justice Ifthikhar Chaudhry has to work with his fellow judges who had taken oath, two of them under fresh PCO on 3^rd Nov 2007 (minus justices Dogar, Javed Iqbal and Bhagwan Das who got retired), and remaining took oath after that.  While the lawyers' movement continue to their noble cause their top brains have to rethink about the cause of independent judiciary now!

 

Here is some article about Mr. Iftikhar Chaudhry.

 

################################

 

 

Justice Iftikhar Chaudhry was not and is not an angel" said Mr. Muneer A. Malik, the President of the Pakistan Supreme Court Bar Association, during an interview with Philip Reeves of NPR radio broadcast in the United States last year. This interview took place in 2007 after President Musharraf sacked Mr. Chaudhry and Malik launched a campaign to restore Mr. Chaudhry.

While I strongly disagree with Mr. Musharraf's decision to fire Mr. Chaudhry, I am curious to find out what Mr. Malik really thought about Mr. Chaudhry. Since Mr. Reeves did not ask the follow-up question as to what Mr. Malik meant by his "no angel" remark about Mr. Chaudhry, I can try and guess the meaning from the following snippets of publicly available information:

1. While the then Chief Justice and several other Supreme Court judges refused, Mr. Chaudhry took the oath of office as the Chief Justice under an unconstitutional "provisional constitutional order" (PCO) issued by General Musharraf after he overthrew of Prime Minister Nawaz Sharif. Having been rewarded with the high position of the Chief Justice of Pakistan, he stood by Musharraf for a long time until issues were raised about Mr. Chaudhry's own conduct in office.
2. The chiefs of two intelligence agencies, Military and Civilian, submitted written affidavits indicating that Mr. Chaudhry maintained inappropriate contacts with the agencies and sought assistance in spying on other officials including judges. Not only that, he discussed with them important cases pending in the Supreme Court on which he was to rule.
3. Once he was restored, he continued to play politics with key questions such as the President's election and the National Reconciliation Ordnance (NRO) under which the PPP leadership including late Benazir Bhutto and Asif Zardari and others returned to Pakistan for the recent elections.
4. Recently, several jurists have criticized Thursday's meeting between Iftikhar Muhammad Chaudhry, the sacked chief justice of Pakistan (CJP), and Asif Ali Zardari, the Pakistan People's Party (PPP) co-chairman, saying that such contacts are harmful to the judiciary's independence. Former SCBA president Muhammad Akram Sheikh said that a Supreme Court bench, headed by Chaudhry, had stayed the implementation of the National Reconciliation Ordinance (NRO), and therefore it did not suit him to meet Zardari. The NRO provides amnesty to public office-holders charged in corruption cases between 1986 and 1999. "The late CJP, Justice Sir Abdul Rashid, refused to meet Liaquat Ali Khan, the country's first prime minister, after he knew about some cases of the federation pending with the Supreme Court," Sheikh said.

Mr. Chaudhry continues to show a lack of judgment in dealing with the military, the politicians and intelligence agencies. Restoring Mr. Chaudhry to the Supreme Court would amount to condoning his bad behavior and setting a bad example for the current and future holders of this high office.

As far as other supreme court and high court judges are concerned, I support the restoration of at least some of them. However, as the new prime minister and parliament consider the question of restoring judges, some of the criteria used in this process should be their behavior before and since the time they were deposed. Did they base their decisions strictly in accordance with the constitution and the laws of the country? Have they played politics from the bench? Have they avoided even the appearance of inappropriate bias or conflicts of interest? The parliament should set up a committee to investigate and hold hearings on the question of restoration of the judges before taking any action. Pakistan can not afford to have any more political generals, nor can it afford any more political judges.