The PPP's malevolent bill

Babar Sattar

(That the PPP has linked its package of constitutional amendments with the restoration of judges reveals two things: 1) Late Benazir Bhutto had been consulted by General Musharraf on his November 3 Plot to purge the judiciary of non-pliant judges; 2) that Asif Zaradri, the new CJ -Justice Dogar, Law Minister Farook Naek, and the present head of the Ministry of Interior Rehman Malik, were also "˜in' on the plot. The "˜Constitutional Package' is the follow up of that plot the objective of which is quite the opposite to the stated PPP objective of "˜independence of the judiciary'. The objective of the plotters is to hoodwink the nation into securing subservience of the Judiciary to the Executive Branch in perpetuity. The people are awake to the "˜evil' that the Zardari-Naek Package of Constitutional Reforms represents but Aitzaz Ahsen, the President of Supreme Court Bar Council, who is also an eminent member of the Zardari Party (former PPP), is desperately trying to preclude the truth from coming out lest his party leadership became the focus of the wrath of the people, as is evident from the article below. Usman Khalid)

More shocking than the indemnity being granted to the general is PPP's proposed model of judicial independence. The draft bill proposes new procedures to appoint and remove judges. The proposed Articles 177A and 193A provide for the creation of a commission comprising members of the judiciary and also including the law minister to make judicial nominations. The prime minister would be provided two names for each vacant position and he would elect one
nominee and forward his/her name to a joint parliamentary committee, comprising members of the treasury and the opposition, for confirmation. This process vests in a parliamentary committee the right to debate and confirm judicial appointments and is an improvement over the previous opaque system despite the fact that it wrests away the judiciary's sway over judicial appointments.

The mechanism for recruiting judges, while important in terms of electing the right people to serve the system of justice, only has a small part to play in determining the independence of a judge once appointed. It is the security of tenure and protections against arbitrary removal that fortify judicial independence and empower a judge to act without considerations of fear or favour. And it is this crucial security that the draft bill threatens to take away from the judicial branch. The new Article 209 proposes to disband the Supreme Judicial Council (comprising the chief justice of Pakistan, two senior most judges of the Supreme Court and the two chief justices of high courts) that is authorized to investigate charges of judicial misconduct and remove judges accordingly. This council is to be replaced by a judicial commission that will consist of a "non-politicised" retired chief justice in the chair, and two "non-politicised" retired judges of the Supreme Court and one "non-politicised" retired judge from each high court.

The members of the commission will be appointed by the government on such terms and conditions as determined in its discretion. Thus, a body of retired judges, serving at the pleasure (read whims) of the executive with no constitutional tenure and security of service shall sit in judgment over which judge is fit to serve. This provision will constitutionally empower the ruling party to stuff this judicial (witch-hunt) commission with loyalist retirees and
once they initiate an investigation into the conduct of a judge, such judge will be sent on forced leave during the period of such investigation. Thus, the sword of Damocles will continue to hang over all judges at all times who would be well advised to remain invisible and compliant to avoid the ire of the government. Even if the witch-hunt commission does not eventually remove a judge who dares to act independently, the threshold for initiating an investigation against a judge is so low that the government would be able to manipulate the outcomes of matters he/she is ceased of by initiating an inquiry and sending him/her on forced leave.

From a historical perspective, the malady of Pakistan's judiciary has not been its 'activism' but the willing surrender of its duty to defend the constitution and protect fundamental rights of citizens against transgressions of the executive - more so in times when executive authority is annexed by a dictator. Sixty years after independence, under immense pressure from the bar and the public, the judiciary finally dared to question the whims of the General who monopolized the state's executive authority. It was the possibility of creating a judiciary free from the shackles of the executive that fuelled the 'ule of law movement' of the lawyers and civil society. And what lessons did the PPP draw from the movement? That the constitution needs to be amended and institutionalised restraints built-in so that the judiciary, particularly the activist judges, can be disciplined before their dissenting voices give rise to popular defiance of a repressive executive.

What would have happened to the rule of law movement had the PPP's proposed amendments been a part of the Constitution in 2007? There would be no movement.

The president would not need to unconstitutionally sack the Chief Justice on March 9, 2007, because he would have the constitutional authority to do so under Article 209. The government would not need to coerce and entice members of the Supreme Judicial Council to seal the fate of an 'errant' Chief Justice, because it would have the authority to compose a witch hunt commission that is predisposed to toeing the official line. In such a neutered system of justice, the courts would be packed by judges groomed in the Dogar mould and the rulers of the day would never need to declare a coup against the judiciary as witnessed on Nov 3. If approved, the amended Article 209 alone will transform the basic structure of our Constitution that envisages the judicature as an equal and independent pillar of the state, by making it an appendage to the executive.

The last few years have seen such extensive debate on the issue of appointment and removal of judges as never witnessed before. Such debates preceded the execution of the charter of democracy between the PPP and the PML-N, and consequently the appointment process streamlined in the charter, and now with some variation in the draft bill, endeavours to institute a transparent consultative process to appoint judges that includes the judiciary, the executive and parliament. Is it a sheer oversight then that the PPP opted for a removal process that leaves judges of superior courts at the mercy and whims of the executive? Who would determine whether the members of the proposed witch-hunt commission are 'depoliticised'? What does the word even mean and is it capable of being translated into a judicially enforceable concept? And why leave parliament out of a removal process that supposedly aims to strengthen judicial accountability? If judges are appointed after extensive bipartisan scrutiny, why not allow parliament to impeach them with a two-third majority as happens in many other jurisdictions, including the United States?

We have heard Asif Zardari repeat ad nauseam that the PPP is committed to strengthening the institution of judiciary and that focus on individuals in the context of restoration is misplaced. While the proposed removal process is indicative of the PPP's approach to institutional independence of the judiciary, equally malicious is the duplicity in the words and deeds of the party when it comes to emphasis on individuals. While the PPP emphasizes de-linking the movement for judicial independence from the restoration of CJ Chaudhry, what it wants in reality is a shift of focus from the person of CJ Chaudhry in a manner that serves the person of Justice Dogar. That is why the draft bill includes three articles that have been drafted solely to return Justice Dogar to the office of the chief justice even in the aftermath of restoration. Under Article 179(2) the tenure of the chief justice will be capped at three years (or maybe five if the pressure from the PML-N and the lawyers doesn't subside) to hastily show CJ Chaudhry the door after restoration.

Given that Justice Dogar reaches the age of superannuation on March 21, 2009, the retirement age of the judges of Supreme Court is being enhanced to 68 through Article 179(1), to give him a few more years as chief justice. But then there is the problem of Justice Javed Iqbal who was the second senior mostjudge on Nov 3 after CJ Chaudhry. While Justice Javed Iqbal was not invited to be a PCO judge he was offered a ceremonial position by the Musharraf regime that he took citing personal financial need. Now if all judges are restored, the CJ's tenure is capped and the retirement age enhanced, Justice Dogar still won't become CJ as Justice Javed Iqbal is not only senior but would also retire after Justice Dogar. Thus a proviso has been added to Article 270CC, stating that all judges would be restored, except a judge who has taken up another position with the government. Justice Javed Iqbal is the only such judge and so instead of including a long-winded fable in the proviso, Mr Naek could simply have stated that all judges except Justice Javed Iqbal will be restored.

The PPP's draft bill has been a disappointment of enormous proportions. One the one hand it documents the double-speak of the PPP that enjoys taking jibes at the general as a populist measure while seeking to indemnify his felonies by amending the Constitution, and utters platitudes in favour of a strong judiciary while devouring its independence through law. On the other hand, the content of the draft bill suggests that the PPP has no intention of resolving
the judicial gridlock. As an embodiment of the PPP's policy on the issue of restoration of judges and judicial independence, this bill makes evident that the incumbent PPP leadership simply does not subscribe to the principles that have been driving the rule of law movement and the choice of constitutional amendment as a mode to restore judges is simply a smokescreen to defer the issue indefinitely.

To the extent that PPP's policy on restoration is being defined by its desire to have a pliant 'jiala' court serve its government uninhibited by law and principles, it cannot afford to restore the deposed judges without amending Article 209 of the Constitution. Because the moment the Nov 3 judiciary is restored, the Supreme Judicial Council under the existing Article 209 could be constituted to investigate the misconduct of the PCO judges, and consequently the leverage Zardari house enjoys in this regard might vanish in a moment along with its dreams of retaining a Dogar Court to look out for Mr Zardari's legal interests (including the longevity of the NRO). And then the constitutional amendment route has its advantages too. After all the PPP has never explicitly stated that it is opposed to restoring the judges and yet in theory it has now thrown the ball in the court of its coalition partners by handing them the
malevolent draft bill.

The coalition partners, the lawyers, civil society and the media can now continue to debate the draft bill clause-by-clause, and once it is introduced in parliament, the debate and disagreement can continue till the cows come home. Meanwhile, the deposed judges can hang in a limbo, the Dogar Court can stay in place, and Zardari House can continue to hold the reigns of the country. During this period of foot-dragging in the name of consultation, the lawyers' movement might die its own death due to fatigue. If that doesn't happen and the long march does shake up the echelons of power, the immediate casualty will be General Musharraf. And such outcome might in itself take the wind out of the sails of the lawyers' movement by providing an exhaust to this nation's pent-up anger and emotion. And then PPP can take charge of the presidency as well while continuing its antics in parliament over the restoration issue.

Asif Zardari has written an intelligent script. But as a student of history and politics he should heed the lessons from General Musharraf's recent experience and realize that in real life fairytales do not always end as desired. During the first half of 2007 there were ample opportunities for the General to read the writing on the wall and change course. Being the commando that he is, he thought he was infallible and consequently trapped himself in a corner where he now at the mercy of Mr Zardari and his US patrons. There is always a time for redemption, followed closely by unforgiving accountability. The pursuit of his self-scripted fairytale might appear to be the best option for Asif Zardari for the time being. But appearances can be deceptive. The safer option would be to reassess his options with a finger on a national pulse and make amends before time runs out.

------------------------------------------------------------------------------------------- 

The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School Email: sattar@post.harvard.edu