Pakistan’s judicial crisis deepens after reappointment of deposed judges Commentary
Pakistan’s judicial crisis deepens after reappointment of deposed judges
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Baseer Naweed [Senior Researcher, South Asia Desk, Asian Human Rights Commission]: "The lawyer's movement for the restoration of judges and the independence of the judiciary has continued in spite the Pakistani government's illegal and unconstitutional handling of the issue of deposed judges. The government first made false promises for the restoration of judiciary as part of their election campaign of November 2, 2007. Trapped by these promises the government then announced a "constitutional package" for the restoration of the deposed judiciary and asked all the parties in the elected houses to support it. However, even after several months none of the parties have taken serious notice of the constitutional package. The law minister, Mr. Farooq Naik, has said that the judiciary cannot be restored unconstitutionally and therefore, the best way forward is to introduce a constitutional package. Restoration through the National Assembly by means of a simple resolution would be unconstitutional.

When the government did not receive a favourable response from the political parties and civil society on the "constitutional package" they then tried the stick and carrot method by ignoring all constitutional means, saying that the elected government cannot adopt unconstitutional methods. Thanks to the power delivered from a military dictator, the law minister, with a pat on the back from President Asif Zardari, used the same technique that Musharraf used in handling the judiciary. Keeping the general's appointed judges at their existing positions, the government re-appointed deposed judges who were at the forefront in the movement against military dictatorship. The civilian rulers were more difficult than the general had been in dealing with judiciary. A new method was introduced to restore the deposed judiciary which was to re-appoint judges on their previous position, according to their seniority and continuation of the job from the real date of appointment. This will create another problem in the judiciary when judges fight for their positions.

Almost all the deposed judges have been re-appointed by the government, but still te the "judicial crisis" remains unresolved and will continue to haunt the elected government throughout its whole term of five years. The minus one formula, a bullying attempt by the Zardari government to isolate the deposed chief justice Mr. Iftekhar Choudhry from his comrades, has worked so far, but how to overpower the crisis in the judiciary is something which will hamper all efforts to tame the judiciary according to the wishes of President Zardari who has an open agenda against the judges who had not provided him relief during his 11 years in jail. The chief justice, Mr. Iftekhar Choudhry, is the one who had not provided relief to Mr. Zardari when he was asked in 2005.

The country therefore has two chief justices, one appointed by General Musharraf during his state of emergency and the other one who was restored by the decision of the Supreme Court on July 20, 2007, and was deposed by the General. The main question before the government is how to cope with the situation and handle two chief justices of the country at the same time.

If Mr. Iftekhar Choudhry was left alone by government's maneuverings, even then the judicial crisis will not be settled until and unless he resigns or is terminated from his position by the supreme judicial council. It is a disturbing factor for the Zardari government that Mr. Iftekhar Choudhry will never resign and has announced several times that he will not take any fresh oath for his reappointment. If the government terminates him from the post of chief justice then it has to send the case before the supreme judicial council, a constitutional forum for the appointment or termination of judges of the Supreme Court. Then the same situation will come again as it was faced by the Musharraf government when Justice Choudhry was suspended on March 9, 2007, and he was referred to the supreme judicial council. It was from that point that the lawyers' movement started and has continued.

The re-appointment of the judges, rather than their restoration, has also created a new judicial crisis. According to the famous "Judges Case of 1996," no acting chief justice can appoint, re-appoint, or terminate the judges of the supreme court. Since Mr. Abdul Hameed Dogar, Musharraf's chief justice, was appointed in the absence of Mr. Iftekhar Choudhry and he has not been terminated nor demoted, Justice Iftekhar Choudhry will remain as the chief justice of Pakistan. So, in his absence any decision to re-appoint will be illegal and unconstitutional.

On the very first day of the new parliament, premier Mr. Syed Yosuf Raza Gillani stated that those who were judges till November 3, 2007 are all free and have been accepted as judges, which means that deposed judges are neither fired nor retired, but are the sitting judges, and therefore without the consent of chief justice Choudhry, re-appointment of the judges is non-constitutional. Also, according to the Article 209 of the constitution, the Judges of the Superior Judiciary enjoy a constitutional guarantee against arbitrary removal. They can be removed only by following the procedure laid down in Article 209 of the Constitution by filing an appropriate reference before the Supreme Judicial Council and not otherwise.

The lawyers are of the opinion that all the deposed judges were still under oath, and there was no justification for a fresh oath, adding that the judges had betrayed the lawyers' community by accepting the fresh oath under the law minister's formula. They also say that there was no provision in the constitution about the reappointment of judges while the government was trying to validate the unconstitutional steps of Nov 3. A conspiracy is being hatched against the reinstatement of Justice Iftikhar Mohammad Chaudhry and the present government had refused to reinstate him as the rulers know that Justice Iftikhar's restoration would strengthen the judiciary, and the government could not tolerate an independent judiciary in the country."

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