It may sound blasphemous but I am not persuaded that the restoration of the judges alone will ensure the independence of the judiciary. The rot is too old, too dirty and too complicated for such a simplistic and naïve approach to work. More importantly, the conduct of the judges even after July 20, 2007 and more specifically their ”practical facilitation” of the re-election of Musharraf as ‘President’ through dismissal of petitions on September 28, 2007 does not provide grounds for “unconditional restoration”. These judges were very much part and parcel of the establishment and its conspiracies. It was the SC judges who allowed Musharraf to get ‘re-elected’ through the old parliament and it was Justice Chaudhry who refused to form a full court (despite pleas from Fakhruddin Ebrahim and Wajihuddin Ahmed) and constitutued a bench that gave that judgement. Their credibility is as suspect as that of Musharraf.
Before the murder of Benazir Bhutto, I favored the boycott of elections on the ground that November 3, 2007 actions were not constitutional. The conditions changed after her assassination and rigging became a highly risky proposition for the establishment which came under huge pressure from the top leadership of the US Democratic Party. Now we have an elected parliament which should be the only forum to debate and decide all matters.
The judges’ issue can not be resolved in isolation from the history of the judiciary and its shameful conduct including the murder of Zulfiqar Ali Bhuto and in the recent past, its collaborative role with the despicable figures like Ghulam Ishaq Khan, turncoats like Farooq Leghari, Bonapartists like Musharraf, and its past and present ties with the intelligence agencies. The restoration is not a just a constitutional or moral matter. It is a political issue as well as a proxy for power plays inside the establishment. Who can disagree that in 2000, it would have been impossible for any judge to make it to the Supreme Court bench without getting a clearance from the intelligence agencies and Justice Chaudhry was one of those judges. Yes, Justice Chaudhry showed defiance on March 9, 2007 but only when he was pushed to the wall and his own position was threatened. Also among the ‘judges’ is Justice Javed Iqbal whose conduct in the past has raised doubts about his impartiality and credibility. Justice Javed Iqbal was one of those 6 judges whose September 28, 2007 verdict, dismissing the petitions challenging the validity of presidential elections, enabled Musharraf to proceed with the charade of getting elected from the old parliament.
The head of the bench Justice Rana Bhagwandas and two other judges, Justice Sardar Muhammad Raza Khan and Justice Mian Shakirullah Jan, dissented with the majority and held the petitions maintainable. Six other members of the bench — Justice Javed Iqbal, Justice Abdul Hameed Dogar, Justice Muhammad Nawaz Abbasi, Justice Faqir Muhammad Khokhar, Justice Falak Sher and Justice M.Javed Buttar — held the petitions to be “not maintainable” under Article 184 (3) of the Constitution. And it was Justice Iftikhar Chaudhry who had constituted the bench and did not entertain the plea from Justice (r) Fakhruddin G. Ibrahim, who had written a letter to the CJ, to form the full court and also invite the Chief Justices of High Courts to sit on the bench. This was the murkiest aspect of the whole saga. Justice Wajihuddin had publicly expressed reservations about the constitution of the bench. Why did Justice Chaudhry not form the full court? Even post July 20th, was Justice Chaudhry acting on some one’s bidding? Why did he deliberately constitute a bench that was almost certain to give judgement in Musharraf’s favour and included only three judges from the 13-member bench that had restored him? The constitution of the benches had been as follows in different cases:
1. The Bench that dismissed petitions against the dual offices as ‘non-maintainable’.
Six who gave the majority judgement: Justices Javed Iqbal, Abdul Hameed Dogar, Mohammad Nawaz Abbasi, Faqir Mohammad Khokhar, Falak Sher, and M. Javed Buttar. Three who dissented: Justices Bhagwan Das, Sardar Mohammad Raza Khan, and Mian Shakirullah Jan.
2. The bench that restored Chief Justice Iftikhar Chaudhry
The ten judges who handed down the judgment were: Justices Khalilur Rahman Ramday, Muhammad Nawaz Abbasi, Mian Shakirullah Jan, Tassadduq Hussain Jillani, Nasirul Mulk, Raja Fayyaz Ahmed, Ch Ijaz Ahmed, Syed Jamshed Ali, Hamid Ali Mirza and Ghulam Rabbani The three judges who dissented were Justices Faqir Muhammad Khokhar, M Javed Buttar and Saiyed Saeed Ashhad.
3. Only one judge who gave the judgement in favour of restoring CJ Iftikhar – Shakirullah Jan- was on the bench that heard the petitions against holding of the dual offices.
4. Two judges, Faqir Muhammad Khokhar, M Javed Buttar, who dissented in the CJ restoration case were included in the bench that heard dual offices’ petition. Also included was Justice Javed Iqbal who became the acting chief immediately after the “suspension” of CJ Chaudhry on March 9.
Reacting to the 28th September 6-3 judgment, PML (N) acting president Makhdoom Javed Hashmi had said the infamous doctrine of necessity, under which all military rules had been validated by the apex court, was still continuing. “We thought the judiciary has become totally independent, but this impression proved to be wrong,” he declared.
After Justice Chaudhry’s restoration on July 20, 2007, his supreme court had three months to take suo moto notice of some crucial constitutional issues but strangely enough, although it found time to issue notices about traffic jams in Karachi, Jamia Hafza and ‘missing persons’, judicial activism was notably absent about crucial constitutional issues. Justice Javed Iqbal heard the petition challenging the eligibility of Musharraf for three weeks before dismissing it on technical and frivolous grounds amid reports in the foreign media [Sunday Times] that this decision was obtained after a blackmail on ‘personal conduct’. This and other issues raised eyebrows in the well informed circles. Mystery still surrounds the issue of “missing persons”.
Let us take one example of Qari Saifullah Akhtar, a militant with a notorious past. Among the “missing persons” released as a result of Justice Chaudhry’s intervention (though not directly by him) was Qari Saifullah Akhtar. The question of persons like Qari Saifullah Akhtar has not received the media scrutiny it deserves. Qari is not an ordinary person but perhaps one the biggest terrorists Pakistan’s military establishment–jihadi nexus has produced in the last 20 years. He was accused by Benazir Bhutto of masterminding the October 18, 2007 bombing in Karachi.
Saifullah Akhtar emerged on the national scene when in October 1995, General Abdul Waheed Kakkar, the then chief of the army staff under Benazir Bhutto, discovered a plot by a group of army officers headed by Major General Zaheer-ul-Islam Abbasi to have him and Benazir assassinated, capture power and proclaim the formation of an Islamic Caliphate in Pakistan and Afghanistan. Abbasi and his army associates were arrested. They were found to have been plotting in tandem with a group in the Harkat-ul-Ansar (HuA) led by Qari Saifullah Akhtar. But while Abbasi and his associates were court-martialled and sentenced to various terms of imprisonment, the Qari was released without any action being taken against him.
On May 19, 2002, ARY Digital TV’s host Dr. Shahid Masood, while discussing the May 8, 2002 killing of 11 French nationals in Karachi, named one Harkat al-Jahad al-Islami as one of the suspected terrorists involved in the bombing. When the Americans bombed the Taliban and Mulla Umar fled from his stronghold in Kandahar, a Pakistani personality also fled with him. This was Qari Saifullah Akhtar, the leader of Harkat al-Jahad al-Islami.
On August 8, 2004, the then Information Minister Sheikh Rashid Ahmed announced the arrest of ‘wanted militant’ Qari Saifullah Akhtar: “We confirm that we have arrested [Qari] Saifullah Akhtar. He was on our wanted list for a very long time before, but he was not available. We did not know his location. And now from UAE, we got the information, and they delivered him to us. And now he is in our custody.”
On January 18, 2005, the Supreme Court dismissed a petition against the arrest of Qari Saifullah Akhtar and directed the petitioner to first move the High Court by filing a habeas corpus writ petition. A Supreme Court bench of Justice Hamid Ali Mirza and Justice Falak Sher ruled that the arrest in this case was not a matter of public importance; hence a constitutional petition could not be filed directly in the Supreme Court under Article 184(3) of the Constitution.
The U.S. was reportedly interested in questioning Akhtar and on July 19, 2006, his name was included in the “Terrorists No Longer a Threat.” On May 5, 2007, the Supreme Court was told Qari was not in government custody. A report presented by the National Crisis Management cell to the Supreme Court, revealed, “He is engaged in jihadi activities somewhere in Punjab”, thus denying that Qari Saifullah was in government’s custody.
On May 26, 2007, Supreme Court was told Qari had been released. Director Crisis Management Cell Col (retd) Javed Iqbal Lodhi told the Supreme Court that so far 98 missing persons have been traced. The two member bench comprising Justice Abdul Hameed Dogar and Justice Falak Sher directed the interior ministry to submit affidavits about those who have reached their homes so that information could be collected as to who had picked them up and under what charges and circumstances. The bench also asked the authorities to expedite their efforts to find out whereabouts of remaining 156 missing people and coordinate with all the intelligence agencies including MI, ISI and the interior ministry officials of all four provinces. The counsel for Qari Saifullah Akhtar said he had been released after detention by the security agencies for two years and nine months. Qari was re-arrested on February 26, 2008 and released on March 26, 2008 by a Sind high court judge (also a TV star) appointed after November 3, 2007.
It is indeed strange that while the Supreme Court under Chuadhry went to such lengths to help the “missing persons”, it did not take suo moto action about some of the most crucial constitutional issues of the time. It did not think it fit to take suo moto action about the question of the eligibility of General Musharraf to contest elections or the validity of Presidential elections by the former parliament. Why? One might say it was waiting for some one to file a petition. Maybe! However, I doubt that explanation given how things really work in Islamabad.
However, it could have taken suo moto notice of the Election Commission’s notification of Sept. 10, 2007, which excluded the presidential candidates from the purview of Article 63, which enumerated the disqualification of candidates. This was the beginning of the rigging of the presidential elections. But Justice Chaudhry’s Court was a silent party to this blatant subversion of the constitution in a matter as important as the election of the president of Pakistan. Why?
The critics of the PPP maintain that the party is afraid that Justice Chaudhry would reopen the NRO case and this would harm the interests of Mr. Zardari and others. That may be so. But the question of accountability is much larger than that. The NAB used the cases as a means of political victimization and selected accountability. Why no one raises the question of the accountability of the sons of generals, Chaudhries of Gujrat, Ghulam Ishaq’s family, and other champions and minions of the establishment. Yes, all holders of political and government offices, including Mr. Asif Ali Zardari and Mr. Nawaz Sharif should account for their wealth. But the accountability should not be selective and it should not be restricted to the politicians from the smaller provinces particularly from Sind.
This should not be taken as a defense of Zardari. He should fulfill the promise he made to the nation when he signed the Bhurbun declaration which is simple and unambiguous in that the all judges were to be reinstated through a resolution of the parliament within 30 days of the formation of the federal government. The text of the declaration dated March 9, 2008 is as follows:
TEXT OF MURREE DECLARATION
1- Allied parties, the Pakistan People’s Party and the Pakistan Muslim League (N) resolve to form a coalition government for giving a practical shape to the mandate, which was given to the democratic forces by the people of Pakistan on February 18, 2008.
2- This has been decided in today’s summit between the PPP and the PML (N) that the deposed judges would be restored, on the position as they were on November 2, 2007, within 30 days of the formation of the federal government through a parliamentary resolution.
3- The parties agreed that all allied parties would fully support the candidate for the position of the prime minister, nominated by the PPP. The PML (N) suggested that the candidate for prime minister should be such person who can take ahead the common agenda of the allied parties.
4- The parties agreed that the speaker and the deputy speaker of the national assembly would be from the PPP while the speaker and the deputy speaker of the Punjab assembly would be from the PML (N).
5- Both the parties agreed that the PML (N) would be a part of the federal government while the PPP would be a part of the Punjab government.
6- This is the solid opinion of the leaderships of both the parties that the allied parties are ready for forming the governments and the sessions of the national and provincial assemblies be summoned immediately.
It is clear that by not acting in accordance with the letter and spirit of the “Murree Summit Declaration” Mr. Zardari’s credibility has been damaged. However, the question of a truly independent judiciary is much larger than what the lawyers, PML(N), or the media pundits seem to believe. At the moment, the polarizing line has been drawn between two forces. Those who want to work with Musharaff and those who do not. But there is another not so visible line. The parties with the largest following in the smaller provinces, namely, the PPP, MQM, ANP and the JUI do not seem to be so concerned about the restoration of judges. Why? Is it because the judiciary has historically played the part of the B team of the Punjabi establishment?
Some very senior and seasoned lawyers believe that there is another line. Justice Chaudhry’s saga represents the split inside the establishment on the lines of ‘liberal’ and ‘right-wing’ elements. While the liberals are a heterogeneous group, the ‘right-wingers’ are dominated by the traditional Punjabi establishment. The Supreme Court bar led by Aitzaz Ahsan has maintained that the recognition of the validity of November 3, 2007 actions of the then chief of the army staff General Musharraf would set a bad precedent. That is correct. But so did the acceptance of his actions of October 12, 1999. The PCO of November 3, 2007 was unconstitutional and all actions void ultra vires but so were the actions under the PCO of 2000. The fact that it was later validated is irrelevant from a legal and moral standpoint. There is no provision in the constitution for such post-facto validation. One does not need a Phd to know that the extra constitutional steps cannot be legalized by any institution be it the Supreme Court or the parliament itself. However, the reality is that they do result in defacto situations but those are NOT dejure situations. But what is the way out of this impasse?
The situation can be summarized as follows:
1. If a strictly constitutional path is followed, judges who refused to take oath under the PCO of January 2000 should be restored but they reportedly do not want to come back.
2. If Justice Chaudhry and others are restored, what is the guarantee they won’t resort to the kind of selective ‘judicial activism’ they did before. The Supreme Court has to redeem itself as an institution. It is a bitter fact of our history that it has treated the prime ministers from Lahore and Larkana differently; be it Anwarul Haq, Nasim Hasan Shah or Iftikhar Chaudhry.
3. If all judges are not restored, PML(N) would probably quit the cabinet.
A fairer and longer lasting solution would be to let all the judges return as part of a constitutional package in accordance with the provisions of the charter of democracy.
Given the tainted past of most of the judges and long history of collaboration with the dictators and their intelligence agencies, I feel more comfortable in letting the elected representatives decide these matters rather than the people, who at the end of the day, were just appointees of a military dictator. This may annoy a lot of people but the fact is Yousuf Raza Gilani spent five years in jail while these judges were happily working under a dictator and enjoying all the perks.