[Reader-list] Fwd: PPP to decimate judiciary (strong title)

[يا سر ~ yasir]

---------- Forwarded message ----------
Date: 2008/2/21



Thanks, ____ and others for getting this important discussion going.

I am afraid I may be too cynical, but I saw Zardari's press conference and
it wasn't exactly confidence inspiring.

When asked about restoration of judges, he dodged the issue by talking about
a larger systemic change that would be brought about by the Parliament. When
asked about working with Musharraf, he dodged the issue by leaving it to the
Parliament to decide. When asked about forming an alliance with PML (Q), he
dodged the issue by denying the existence of PML (Q) as a party without
clarifying whether he'd ally himself with the group of 39 individuals who
were elected on the PML (Q) ticket.

In a party-based parliamentary system, parties are expected to define their
position on issues and members of parliament who have been elected on the
party ticket are expected to follow the party line on those issues. Zardari
knows that full well.

For instance, he didn't leave it for 'the Parliament to decide' whether
there should be a UN enquiry into Benazir's assassination. He didn't leave
it for the Parliament to decide whether the freedom of media should be
protected by repealing the draconian provisions of the PEMRA Ordinance. He
clearly stated his party's position on these issues and said that any
coalition partners would have to agree on these pre-conditions.

Quite frankly, this talk of a long-term strengthening of the judicial
institution rather than a short-term focus on the restoration of individuals
merely seems to be a ploy to gain time and somehow brush the travesty of 3rd
November under the carpet.

We didn't take to the streets clamouring for restoration because Iftikhar
Chaudhry was a nice guy. We did it because we believe that if today the
executive is allowed to get away with kicking out undesirable judges, we
shall never in future have an independent judiciary in Pakistan. Assuring
judges of security of tenure is possibly the most important single step you
can take to ensure their independence.

To my rather plodding mind, if you want to strengthen the judicial
institution and ensure its independence, you start out by reversing the
damage caused on 3rd November. There can be no ifs and buts about that.
Sure, if you want take further measures to reform and improve the
institution, go ahead and publicly float your specific proposals - discuss
it with your coalition allies and the other stakeholders including the Bar
and the Bench - and pass a law. But there is no call for linking the former
to the latter (particularly when you haven't even formulated any of
your radical 'reformative' ideas).

It seems that PPP is creating this linkage simply to win time and eventually
side-step the issue of restoration. As we saw even back when BB was alive,
what Aitzaz says and what PPP says are frequently two different things. A
couple of days before the election, Makhdoom Amin Fahim was asked on Geo to
explain what the PPP actually meant when it talked about focusing upon the
'independence of the judiciary' rather than 'restoring individuals'. He
didn't seem to have a clue. First he asked why everybody is focused on the
restoration of judges removed in last November and not on the judges earlier
removed by Ayub, Yahya, Zia and Musharraf (in 2001).

Well - actually Ayub and Yahya didn't remove any judges. The judges removed
by Zia are either dead or over 80 years in age. Likewise, all except 2
judges (Rasheed Razvi and Mushtaq Memon) removed by Musharraf in 2001 have
long passed their retirement ages. If the PPP wants to restore those 2 as
well, we would be more than happy.

Also, the crucial difference between then and now is that the removal of the
earlier judges through the PCO only became final once it was (unfortunately)
ratified through a constitutional amendment passed by a 2/3rd majority of
parliament. There has been no such ratification in the present case. Without
this ratification, the deposed judges legally continue to be judges. What is
stopping PPP from recognising them as such?

Fahim also said that the PPP is more interested in introducing
constitutional safeguards that will prevent the arbitary removal of judges
as happened on 3rd November. It seems that he was simply oblivious to the
whole 9th March ruckus. Those safeguards are already part of our
constitution. A judge simply cannot be removed without a enquiry before the
Supreme Judicial Council. The problem was that a military dictator used
brute force to simply brush aside all the constitutional restraints. What we
need is the political will to, firstly, resist and secondly, reverse the
desecration of the constitution. Future improvements to the constitution,
while welcome, come third.

As far as Zardari's ideas about forming parliamentary committees to sift
good judges from bad are concerned, I don't think I've heard a worse
idea. If he means to use these committees to oversee the restoration process
- decide on a case to case basis whether to restore or not - it is simply
unacceptable. Musharraf had also offered to restore the judges on a case to
case basis but the judges and lawyers refused to accept this pick and choose
policy.

Even if he means to use this process only for future appointments, it's
still a terrible idea. Our judiciary does not need further politicisation.
Political involvement in the appointment of judges will only harm the
long-term stability and impartiality of the institution. Even in a country
like the U.S., the fact that Supreme Court judges are appointed by the
President and approved by the Senate has led to a situation where judges are
defined by their political affiliations and judicial decisions become
dependent on whether there are more Democratic or Republican nominees on
the bench. I am sure everyone remembers the 5-4 Republican-Democrat split in
the US Supreme Court that allowed Bush to become President.

Our current constitutional system of appointments is not too bad. The
President appoint HC and SC judges in consultation with the Chief Justice of
the SC and the Governor and Chief Justice of the province concerned. The
problem starts when the CJs and the Governor/President start disagreeing. In
BB's second stint, matters came to a head when the PPP forced through
numerous political appointees to the Bench over the objections of the CJs.
Incidentally, Dogar is a product of the same period. In another famous
example, a non-practising lawyer with strong PPP links was asked to take
oath as a judge but needed directions to get to the High Court. Eventually,
the SC resolved the issue in the Al-Jehad case by holding that the President
did not enjoy discretionary powers to appoint whom he pleased but was bound
to ordinarily abide by the advice/recommendation tendered by the CJs and, in
case he disagreed with their recommendations, he was required to assign
concrete reasons for doing so.

If the guidelines laid down in Al-Jehad are strictly followed, appointment
of judges becomes a relatively merit-based and politics-free affair.
However, there is one important improvement that can be made to the system
which is to make this whole process of consultations/appointments/assignment
of reasons between the CJs and the executive branch more transparent and
visible to the public so that everyone can be satisfied that the
constitutional provisions and the Al-Jehad guidelines have been followed.
Once again, this would not require any constitutional amendment. A simple
law passed by a parliamentary majority would be enough.

The next 2-3 weeks are absolutely crucial. Its make or break time. The
lawyers put a very good show in Lahore and Karachi today. We need to raise
the level of pressure all round to make it clear to all political parties
that this issue will not die down.

Rgds

Salahuddin