Return on PPP's terms

LAHORE - The fresh phase to get the deposed judges back into business, demonstrates more of the mode PPP government has fabricated to do the job on its own terms than accepting what its erstwhile coalition partner, PML(N) as well as the legal fraternity have been crying for over the past nine months.

The re-appointment of eight judges of Sindh under a fresh oath by no means is a re-instatement or their restoration without any midway fresh oath taking, nor it is something which can lead to the revival of November 2 judiciary which now appears only a dream unless something unusual happens.

The outlines of the future picture of judges restoration show the PPP government would take restoration of the Supreme Court judges in the last phase, and if at all it came, Justice Iftikhar Muhammad Chaudhry and some others mainly those who sat on a seven-member bench to stay operation of the November 3 PCO and state of emergency, would be in a tight corner to accept the re-appointment and take fresh oath.

Observers say it would amount to eating a humble pie which these judges would not like to have. They see the movement going back to the square one but with a difference especially when the government could have re-appointed all the deposed judges in one go, but it stayed away from it with a purpose.

The N-League and the lawyers had called for restoration of November 2 judiciary through an executive order backed by the parliamentary resolution, on which the PPP thrice showed a written commitment. The re-appointment process through the executive authority of the President, indeed meets half of what was being previously sought at the political level. The PML(N) and the lawyers demanded an executive order to revert the judges to their original position ignoring the PCO of November 3. But the PPP, political analysts say, executing a plan to firm up its grip on power played its cards well. In the first instance it obliged the N-League to soften its stand which helped it push the judges issue behind impeachment avoiding hype that restoration in fact could itself work to throw Pervez Musharraf out of power, which the PPP reckoned as the most difficult and big task. And after using judges-emotional PML(N) against Musharraf and ultimately compelling it out of the coalition, the PPP is now realigning its alliance with the MQM and other parties to lead the government in the centre and three other provinces and to resolve the judges issue as per its own choice. Run with the hare and hunt with the hounds

The PPP government never said it was loath to judges' reinstatement but the mode it has adopted at present, is not only to serve for the purpose of getting it done as per its suitability and scheme of things, but to also curb the lawyers movement and divide unity of the deposed judges. The fresh oath by a section of deposed judges, has elicited a strong reaction from the community which has condemned it as a loss of impatience by them and conceding to the constitutionality of November 3 action of General Pervez Musharraf at a stage when the legal fraternity was geared up to take the cause of their restoration to a new height by pressing this demand through sit-in protests at bar level all over the country. Lawyers during their struggle after November 3, gave a hero's image to the deposed judges and inculcated in the public mind that they would ensure the independence of judiciary, which has been the cause of their struggle since March 9 last year.

Reports suggest that up to seven judges of the Lahore High Court and two from the Peshawar High Court are also lined for re-appointment and fresh oath. If that happened, it would cause more disappointment to the lawyers who, however have not shown any mind to abandon their struggle, succumbing to this situation. Admiring the word of a deposed SC judge, Justice Khalilur Rahman Ramday, a lawyer quoted him saying lawyers struggle was not the question of putting the judges back in the office but to see if the country would have an independent judiciary, potent enough to sustain the law in the eye of a dictator and against unlawful acts of the powerful.

As to the reappointment of Sindh judges, or for that matter others is concerned, in view of the jurists, it has its own dimensions. In their view, the Constitution provides for appointment of the judges and its mode but not re-appointment of a judge or providing him the original seniority. After removal of a judge, he can be given a fresh appointment but not reappointment with the original seniority. Had there been a constitutional amendment, as it was sought by the PPP in the past to reinstate the judges, the matter was easily understandable. And now the question is how the authorities would assimilate the re-appointment with the original seniority, in the constitutional scheme of things when a judge holds a constitutional post and acts to advance the constitutional scheme of things, the jurists posed.

In their view, the government much orchestrated the constitutional package for judges restoration but now it is obvious that it was a means to avoid implementation of the Murree declaration and to buy time against the PML(N) pressure to carry forward what the PPP had planned when the fact was, the compulsory two-thirds majority in the Parliament was never available to the coalition partners. And for the fresh, they say, the government may need to resort to some legislation to blend re-appointment with the constitutional provisions.   

Another important point relates to the necessary consultation with the Chief Justice of Pakistan in the appointment of a judge. The present incumbent in the office is Justice Abdul Hameed Dogar. The re-appointment of deposed judges and fresh oath by them after consultation with Chief Justice Dogar, experts say, the position of Justice Dogar in the office and PCO which had appointed him, has also been established. This, they opine, has more squeezed the space for Justice Iftikhar Muhammad Chaudhry to come back to the office of the Chief Justice of Pakistan. The lawyers are adamant on continuing the struggle and the future picture, as an observer says, is like that which emerged after March 9,2007 when Justice Chaudhry was sacked unconstitutionally by General Musharraf. The movement, if not suppressed by the government, would again be rallied round Justice Chaudhry. The situation would be back to the square one, however with a difference that this time round more deposed judges would stand by him unlike his solitary stay in the field after March 9 incident. And the struggle would not be against a 'dictator' but a democratic government which has held tall claims on living up to the public aspirations.

Observers say lawyers strongly believe that genesis of November 3 action lies in March 9 incident founded on one 'no' of Justice Chaudhry to General Musharraf when he was most powerful, calling the shots everywhere. They still stand with him and are ready to move with him for the rule of law and independence of the judiciary, say the senior lawyers.