Cherry picking again

The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School

Last week deposed Justices Saqib Nisar, Asif Khosa, Azmat Saeed and Umar Ata Bandial swore a fresh oath of office upon being reappointed to the Lahore High Court with their November 2 seniority. They followed in the footsteps of a few judges of the Sindh High Court who had similarly accepted reappointment on August 27. The four reappointed judges of the Lahore High Court are arguably amongst the most able judges that Pakistan has at the moment. Consequently their deposed status and replacement with the likes of Ahsan Bhoon was a cause of grave concern for those who worry about the future of Pakistan's jurisprudence. Yet the manner in which these judges have returned has been a source of gloom for many who looked up to them as icons of righteousness. Their compromised return marks the triumph of despondency over optimism, rooted in the belief that a principled resolution of judicial crisis is not in the offing.

The rule of law movement led by lawyers and the civil society has struggled with all deposed judges to get their robes back with dignity and in accordance with the law. The movement was rooted in the principle that the Constitution guarantees security of tenure to judges, who can only be removed on the recommendation of the Supreme Judicial Council in accordance with the provisions of Article 209 and not on the whims of any individual who monopolises the state's executive authority. Consequently the legal fraternity and the nation deemed the dismissal of a majority of superior court judges on November 3 unconstitutional. And the deposed judges – a majority of whom had been invited to be PCO judges – refused to swear a fresh oath under the Musharraf PCO and subjected themselves to illegal detention apart from jeopardising their professional careers to uphold the principle that judicial cherry-picking in violation of the Constitution is

unacceptable.

Notwithstanding the fading chance of an unconditional restoration of the November 2 judges by the PPP government, are there any arguments of principle that explain a surrender by the reappointed judges at this stage? If they have accepted reappointment in accordance with Article 193 of the Constitution, would it not amount to accepting the validity of their dismissal on November 3? For if they deemed themselves serving judges, they could not be reappointed to a position they were already holding. Further, they have been conferred the seniority they enjoyed on November 2. Does the executive have the discretion under the Constitution to endow superior court judges with any desired seniority? The reappointed judges took fresh oath of office, as Article 194 requires all judges to swear such an oath "before entering upon office." And Article 255(3) clearly states that "where, under the Constitution, a person is required to make an oath before he enters upon an office, he shall be deemed to have entered upon the office on the day on which he makes the oath."

Thus if the reappointed judges entered office on August 31, no executive or judicial authority in Pakistan is vested with the authority to accord them with the seniority that they enjoyed on November 2 – unless it is held that they never seized to hold the office they held on November 2, in which case their original seniority will come into play. The ouster of discretion in determining seniority of judges is imperative to give meaning to the concept of judicial independence, as seniority in turn determines the right of a high court judge to be elevated to the Supreme Court and to assume the office of the Chief Justice. If the right to establish the seniority of judges through executive notifications is once conceded, we will be back to illicit ways of the pre-judges'-case era when the ruling regime could pick loyalists to serve as chief justices of the high courts and the supreme court in utter disregard of the seniority principle.

The rewards promised by the rule of law movement were psychological, symbolic and substantive. The psychological gain would be one of empowering a nation with a sense of sovereignty and autonomy: that decisions in Pakistan would be taken in accordance with the unmistakable wishes of the people. Notwithstanding mind-numbing debates on the priority that the judges' issue deserves amidst our myriad afflictions, there is little doubt that an overwhelming majority of citizens believe that the actions of November 3 were unfair and illegal and must be undone. By forcing the judges to compromise their principled positions as a precondition to return them to their rightful offices under the Naek formula, we are confirming our mocking self-perception as a country wherein principles and conscience are an impediment to personal and professional ascendency.

The symbolic gain would be a perception that the country has taken one giant step toward judicial independence and constitutionalism. One can hate Chief Justice Iftikhar Chaudhry guts, his past decisions, or his acquiescence to the PCO of 2000. But that doesn't change the underlying reality that in the aftermath of being dismissed by Musharraf on March 9, 2007, he together with judges like Rana Bhagwandas and Khalil Ramday emerged as an emblem of judicial independence in Pakistan. These judges might have erred in the past, but their principled stance, courage and propriety in face of state oppression over the last 18 months has cleansed them of past mistakes in the public eye. Justice must not only be done but must also be seen to be done is an old adage that highlight the importance of the perception of independence in the realm of law. Bringing back Iftikhar Chaudhry and Ramday will be a symbolic leap into the realm of independence and will thus rinse out the PCO-stigma that currently blemishes our judicature.

The substantive gain of the movement was to bring back judges like Saqib Nisar, Asif Khosa, Azmat Saeed and Umar Bandial to the court, as we all rely on erudite and intelligent beings to contribute to an indigenous jurisprudence that is sensible, consistent and wise. But to bring them back in a manner that no one has an opportunity to fault their past when they reach the helm in due course and become the face of an independent court. While their acceptance of the Naek formula cannot be justified on the touchstone of legality or morality, we must resist the temptation of painting the original PCO-judges and the reappointed judges with the same brush.

On November 3 this nation was outraged by Musharraf's coup against the expression of judicial independence, and the deposed judges stood with us. On February 18 we equipped our elected representative with the means to undo the acts of November 3, and our politicos let us down. The system of rewards and retribution that has been in force in Pakistan forever and that has been reaffirmed by our political elites since February 18 militates against a dogmatic pursuit of principles or anyone buoyed by a conscience. Anyone who compromises himself and borrows the logic of expediency is offered instant amnesty. What then encourages a judge to abide by his conscience (and sacrifice all that he has worked for in his life to contribute to a larger collective good that may never be realised) other than a lurking suspicion that by compromising himself he might not be able to sleep well at night? Should we wish to prosper as a nation we must fix this broken reward and retribution system sooner rather than later.

But leaving aside the judges, the PPP must understand that an attempt to abuse the present vulnerability of the judiciary to consolidate political power will only aggravate our political instability and take us back to the 1990s when both the PPP and PML-N took turns at stuffing the courts with loyalists. By reappointing judges through an executive order, the PPP has established that a constitutional package was never required to bring the deposed judges back to the courts. The only excuse now for not restoring Chief Justice Iftikhar Chaudhry, Justice Ramday or Justice Khawaja Sharif of the Lahore High Court is that the PPP considers them and some others to be pro-PML-N judges. Such judicial cheery-picking is detrimental to the interests of an independent and functional judiciary as well as rule of law in Pakistan.

The PPP still has a chance to fix the mess it has created for itself by voluntarily inheriting a judicial crisis not of its making. If elected president, Asif Zardari can announce that the first executive order he will pass will be one restoring CJ Chaudhry and all deposed judges to their November 2 positions. With the PML-N now in opposition, there will be no public perception that his hand is being forced on the judges' issue. As someone burdened by a mountain load of credibility-deficit, unconditional restoration would produce tremendous goodwill and enable him to argue that commitments might have been delayed but were never reneged. Further, it would enable his party to woo back the liberal middleclass of this country – the founding ideological backbone of the PPP – that is firmly committed to the rule of law movement. And finally, Mr Zardari should consider restoring all judges as his first order of business simply because it is the right thing to do.



Email: sattar@post.harvard.edu