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Thursday, April 17, 2008

VIEW: Restoration vs independence —Chaudhry Fawad Hussain
Greater political receptivity is required than is currently on offer to avert any political crisis while we go about restoring the honour of the judiciary and ensuring its independenceThe new federal cabinet in its first meeting held on 31 March, 2008, had decided to form a committee to look into the issue of the reinstatement of the deposed Judges as pledged by the coalition partners. The committee was to be headed by the Law Minister, Mr Farooq Naek, who is a close aide of Mr Asif Ali Zardari, Co-Chairman of the Pakistan Peoples Party. The scope and powers of the committee, which has yet to be set up, are also not yet clear: will it consider a constitutional package or a simple bill for the reinstatement of the judges?However, as time passes, the constitution and powers of this committee are becoming controversial. The PMLN in its parliamentary party meeting the other day rejected the idea of the formation of any committee because they believed any such step would violate the terms of the Murree Declaration which categorically stated that all the judges would be restored by parliament without any ifs and buts. It is my view that the issue of the restoration of the judges is essentially a political one rather than a legal one and we should therefore look for a political compromise or political solution before we start considering legal remedies. Some of the judges, including the deposed Chief Justice Mr Iftikhar Muhammad Chaudhry, have literally become politicians. These judges, especially the former Chief Justice, have been addressing public gatherings, visiting political personalities and acting more like politicians than judges. Another senior judge, while recently addressing a Bar Association in District Kasur, demanded that Justice Wajihuddin Ahmed should be made President of Pakistan and Mr Aitzaz Ahsan be made Prime Minister of Pakistan. Now with this kind of statement mongering who can believe that these individuals will still be able to act as independent judges. Indeed, there is no doubt that their capacity to act as independent judges has been severely undermined by their political actions. Therefore we must not compromise the independence of the judiciary simply in order to get these judges restored. In fact, the animosity of the deposed judges towards two big political parties, i.e. MQM and Pakistan Muslim League-Q, is an open secret. Equally, no comment is required about their views of President Pervez Musharraf. If their politics is not curtailed while they are restored, it is more then likely that these judges will re-open the otherwise closed transaction of the question of the eligibility of the president to contest the presidential election. But Pakistan at this juncture cannot afford to face another political upheaval. Therefore, greater political receptivity is required than is currently on offer to avert any political crisis while we go about restoring the honour of the judiciary and ensuring its independence.I would recommend that the committee of the cabinet should consider a broad based constitutional amendment through which the appointments and removal of judges should be made subservient to Parliament; however, the procedure of appointment and removal of judges should ensure that the majority party should not be able to misuse this power and make the judiciary its crony. For a workable solution of the present crisis, all the judges may be restored through legislation but this should follow a comprehensive constitutional amendment through which the post of the Chief Justice may be made a tenure post as envisaged by the original text of the constitution. The restored judges as well as the current judges in attendance may be scrutinised by an eight-member parliamentary committee comprising two members from each province, the names of which should be approved by parliament through a resolution of two thirds majority passed in joint sitting of both houses; and this committee should take up the issues of appointments in the judiciary. The members of the committee may be retired judges of the superior courts with unimpeachable recognition. Within one month, the committee should propose names of the deposed judges, present judges and lawyers to be appointed/ reappointed as judges in the superior courts. This committee may be headed by the deposed Chief Justice, Mr Iftikhar Muhammad Chaudhry; however, he should volunteer not to become a judge himself. This judiciary should take a new oath under a fresh mandate of the constitution. The oath of the judges should also be amended and a new line should be added into the oath which may read as under:“..... I shall not take oath under any extra-constitutional Order under any circumstances whatsoever”.In my view this process will restore the honour of the judiciary and ensure its independence as well.

The author is a Lahore based lawyer and columnist and can be reached at

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