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Restoring Pakistan's ousted judges: betrayal in the name of reconciliation

Faisal Naseem Chaudhry [advocate, Lahore High Court, Lahore, Pakistan]: "In Pakistan's February 18 elections, the Pakistan Peoples Party (PPP) and Pakistan Muslim League (Nawaz), i.e. the PML (N), emerged as the two major parties in parliament respectively. On March 09 this year, both parties signed the six-point "Murree Declaration", the second point of which indicated that the judges ousted by President Musharraf under last November's proclamation of emergency rule shall be restored within 30 days of the formation of the Federal Government through a Parliamentary Resolution. The countdown to restoration commenced on March 30 when the Federal Cabinet took its oath of office, but the whole thing has proved to be a waste of time while the entire nation was glued to the tele-screens waiting for the promise to materialize. April 30th became part of history today but the deposed judges of Pakistan remain deposed. All credit for this goes to the gimmicks of Mr. Asif Ali Zardari (AAZ), the Co-Chairman of the PPP.

It is not that easy for Mr. Mian Nawaz Sharif (MNS) to step out of the coalition. This is why he may prefer to step out of Federal Cabinet (for face-saving) but shall continue to support the PPP Government. Becoming an opposition party in the National Assembly would authorize the PPP to use all fair and unfair means for toppling the PML (N) government in the Province of Punjab, the most important of the four provinces where the Chief Minister belongs to PML (N) and PPP holds some ministries. Ruling the province of Punjab, the most thickly populated and the most resourceful part of Pakistan, has been an unfulfilled dream of PPP for a long time.

AAZ has not only let down the deposed judges but most notably the lawyers headed by Aitzaz Ahsan, President of the Supreme Court Bar Association, who is also a Member of the PPP's Central Executive Committee. According to news items appearing on April 04, there had been an exchange of harsh words between Zardari and Ahsan (though Ahsan later termed it a mere conflict of opinion) to the extent that AAZ kind of threw a challenge to Ahsan daring him to go ahead with his 'Long March' pressing for restoration. AAZ intentionally did not implement the most important part of the Murree Declaration for the purpose of showing Ahsan that he, his lawyers, his deposed judges and his movement are not worth anything to the PPP.

A few days before the April 30th deadline, AAZ opened his mind with BBC and secondly with a GEO News Interview not only in respect of the proposed constitutional package rather also the person of ousted Chief Justice Chaudhry. Most Pakistanis have regarded it unfair that AAZ is ready to reconcile with every political force in Pakistan, even the MQM of Karachi which burnt alive a number of lawyers in Karachi a couple of weeks ago, yet maintains personal venom and vendetta against the person of Chief Justice Chaudhry. It is not the old memories of the BMW case before the Supreme Court, rather the National Reconciliation Ordinance (NRO) which is his point of concern.

When Benazir Bhutto (BB) was returning to Pakistan in the last quarter of 2007, President Musharraf promulgated the NRO (also regarded as National Humiliation Ordinance by some writers) chiefly to facilitate BB and AAZ in respect of their cases involving huge corruption and kick-backs. Chief Justice Chaudhry had issued an injunctive order against the Ordinance and then everything changed with November 3 Martial Law sugarcoated as Emergency. Mr. Dogar became the Chief Justice and favourable judgments pleased Zardari including one upholding the operation of NRO. Justice Dogar had been working as a Junior Associate of Mr. Qaim Ali Shah, the incumbent Chief Minister of Sindh who managed to have him recruited as Additional District Judge during the first tenure of BB (1986-1988).

Zardari feels comfortable with Justice Dogar, a man from the Province of Sindh where the Bhutto shrine is situated. If Justice Chaudhry becomes Chief Justice again with the same conventional judicial and administrative powers a Chief Justice enjoys, Zardari is apprehensive of the striking down of NRO which will again send him behind the bars or at least into exile. He does not want to take any chances particularly when it shall merely add more votes into the vote bank of Nawaz Sharif who contested the February 18 elections with the solemn pledge of reinstatement of deposed judges. Voters voted for PML (N) for the restoration of judiciary. For PPP, it was the blood of slain BB which resulted in a good harvest.

So AAZ wishes to either circumscribe the tenure of Chief Justice Chaudhry or curtail his unbridled administrative powers including the power to constitute a Bench of own choice, fixing cases of own choice. He also desires to retain the Judges who took oaths under the Provisional Constitution Order on Nov 3 last year and thereafter as fresh appointees. Anything short of this shall be ostensibly unacceptable to AAZ. Can he survive without the support of PML (N)? Certainly not only in Centre but in all the four provinces too. Only for Punjab, he shall have to put in little effort for a successful vote of no-confidence against the PML (N) Chief Minister. MNS is not likely to step out of coalition even for the sake of deposed judges. He will give more time to AAZ for the reinstatement yet where do the lawyers stand in this standoff?

A third round of talks between AAZ and MNS is going to take place tomorrow on May 01 in Dubai. Maybe by tomorrow evening a firm roadmap will be provided for the reinstatement through a simple majority resolution of the National Assembly, yet the point is simple. How can you trust this man whose ego is superior to a superior court?"

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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