Law minister Farooq Naek claims that he has single-handedly drawn up this draft bill under Asif Zardari’s guidance. His assertion must be true for the bill is ambiguous and shoddily drafted. But poor draftsmanship and lack of constitutional prudence is the least of our concerns at the moment. This draft bill is not just ambiguous, but malicious for (i) it indemnifies the Nov 3 actions of the general and (ii) if passed, it would mutilate the basic structure of our constitution by turning the judicial branch into an extension of the executive for all times to come. The PPP has stated that this bill is not ’sacrosanct’ and will be subject to change in view of comments received from coalition partners and the public. Nevertheless, as an embodiment of the PPP’s base position on (a) the treatment to be meted out to dictators and usurpers, (b) the desirable form of ‘judicial independence’, (c) the preferred balance of power between the pillars of the state, and (d) acceptable schism between words and actions, this draft bill is shocking.

Let us recap the issues in question. The legal fraternity has been crying hoarse that the choice of constitutional amendment as a ‘modality’ to undo the mess created by the general will, by implication, amount to accepting his actions as legal and underwriting the assumption that the constitution can be amended through the barrel of a gun. An illegal order is simply void and doesn’t need to be reversed through law making. Setting such a precedent could come back to bite us in the future just like the judicially manufactured ‘doctrine of necessity’ continues to haunt us today. But this concern is about future dictators obligating democratic forces to manufacture a two-thirds majority in parliament to bypass their edicts. Let us turn to the present. The PPP has tried to be cute about the indemnity issue by not addressing it directly in the draft bill, while imbedding a legal cover for the general’s actions in the language of the proposed Article 270CC that talks about restoration of the superior court judges.

Article 270CC states that “notwithstanding anything contained in any provision of the constitution, the Oath of Judges Order 2007, the High Court Judges Order 2007, the Supreme Court Judges Order 2007 and any other law for the time being in force or judgment of any court including a high court and the Supreme Court, the judges of Supreme Court and high courts including the chief justice of Supreme Court and chief justices of high courts who had ceased to continue to hold office in pursuance of the Oath of Judges Order, 2007, dated the 3rd day of November, 2007, shall stand reinstated/restored to the position and seniority they were holding on the 2nd day of November, 2007.” The language of this article assumes the legality of the Oath of Judges Order, 2007, and affirms that the deposed judges had ceased to hold judicial office, before creating a constitutional carve-out or exception to restore them.

Even if a constitutional amendment was the PPP’s preferred route to restoration, to pre-empt a stay order from the Dogar court and avoid legal confusion as claimed by the PPP, the language of the restoration article could have stated that the general’s actions of Nov 3 — including the forced removal and illegal detention of judges — were illegal, and notwithstanding Article 6, the PCO judges’ initial oath of office under Articles 178 and 194 of the constitution and the Supreme Court order of Nov 3 (rendered by the full court headed by Chief Justice Iftikhar Mohammad Chaudhry declaring the general’s acts of Nov 3 as unconstitutional), the judges who swore an oath under the general’s PCO and those appointed after Nov 3 will be retained. Such a construction of the restoration clause would acknowledge the illegality of the general’s actions and the judges who chose to swear by him, while restoring the deposed judges and also retaining the PCO judges (that the PPP wishes to do for questionable reasons). What it would not do is grant general indemnity to a dictator’s actions by assuming their legality.

More shocking than the indemnity being granted to the general is PPP’s proposed model of judicial independence. The draft bill proposes new procedures to appoint and remove judges. The proposed Articles 177A and 193A provide for the creation of a commission comprising members of the judiciary and also including the law minister to make judicial nominations. The prime minister would be provided two names for each vacant position and he would elect one nominee and forward his/her name to a joint parliamentary committee, comprising members of the treasury and the opposition, for confirmation. This process vests in a parliamentary committee the right to debate and confirm judicial appointments and is an improvement over the previous opaque system despite the fact that it wrests away the judiciary’s sway over judicial appointments.

The mechanism for recruiting judges, while important in terms of electing the right people to serve the system of justice, only has a small part to play in determining the independence of a judge once appointed. It is the security of tenure and protections against arbitrary removal that fortify judicial independence and empower a judge to act without considerations of fear or favour. And it is this crucial security that the draft bill threatens to take away from the judicial branch. The new Article 209 proposes to disband the Supreme Judicial Council (comprising the chief justice of Pakistan, two senior most judges of the Supreme Court and the two chief justices of high courts) that is authorized to investigate charges of judicial misconduct and remove judges accordingly. This council is to be replaced by a judicial commission that will consist of a “non-politicized” retired chief justice in the chair, and two “non-politicized” retired judges of the Supreme Court and one “non-politicized” retired judge from each high court.

The members of the commission will be appointed by the government on such terms and conditions as determined in its discretion. Thus, a body of retired judges, serving at the pleasure (read whims) of the executive with no constitutional tenure and security of service shall sit in judgment over which judge is fit to serve. This provision will constitutionally empower the ruling party to stuff this judicial (witch-hunt) commission with loyalist retirees and once they initiate an investigation into the conduct of a judge, such judge will be sent on forced leave during the period of such investigation. Thus, the sword of Damocles will continue to hang over all judges at all times who would be well advised to remain invisible and compliant to avoid the ire of the government. Even if the witch-hunt commission does not eventually remove a judge who dares to act independently, the threshold for initiating an investigation against a judge is so low that the government would be able to manipulate the outcomes of matters he/she is ceased of by initiating an inquiry and sending him/her on forced leave.

From a historical perspective, the malice of Pakistan’s judiciary has not been its ‘activism’ but the willing surrender of its duty to defend the constitution and protect fundamental rights of citizens against transgressions of the executive — more so in times when executive authority is annexed by a dictator. Sixty years after independence, under immense pressure from the bar and the public, the judiciary finally dared to question the whims of the general who monopolized the state’s executive authority. It was the possibility of creating a judiciary free from the shackles of the executive that fuelled the rule of law movement of the lawyers and civil society. And what lessons did the PPP draw from the movement? That the constitution needs to be amended and institutionalized restraints built-in so that the judiciary and individual activist (read miscreant) judges can be disciplined before their dissenting voices can stream-roll into a popular movement.

Part II

What would have happened to the rule of law movement had the PPP’s proposed amendments been a part of the Constitution in 2007? There would be no movement. The president would not need to unconstitutionally sack the Chief Justice on March 9, 2007, because he would have the constitutional authority to do so under Article 209. The government would not need to coerce and entice members of the Supreme Judicial Council to seal the fate of an ‘errant’ Chief Justice, because it would have the authority to compose a witchhunt commission that is predisposed to toeing the official line. In such a neutered system of justice, the courts would be packed by judges groomed in the Dogar mould and the rulers of the day would never need to declare a coup against the judiciary as witnessed on Nov 3. If approved, the amended Article 209 alone will transform the basic structure of our Constitution that envisages the judicature as an equal and independent pillar of the state, by making it an appendage to the executive.

The last few years have seen such extensive debate on the issue of appointment and removal of judges as never witnessed before. Such debates preceded the execution of the charter of democracy between the PPP and the PML-N, and consequently the appointment process streamlined in the charter, and now with some variation in the draft bill, endeavours to institute a transparent consultative process to appoint judges that includes the judiciary, the executive and parliament. Is it a sheer oversight then that the PPP opted for a removal process that leaves judges of superior courts at the mercy and whims of the executive? Who would determine whether the members of the proposed witchhunt commission are ‘depoliticized’? What does the word even mean and is it capable of being translated into a judicially enforceable concept? And why leave parliament out of a removal process that supposedly aims to strengthen judicial accountability? If judges are appointed after extensive bipartisan scrutiny, why not allow parliament to impeach them with a two-third majority as happens in many other jurisdictions, including the United States?

We have heard Asif Zardari repeat ad nauseam that the PPP is committed to strengthening the institution of judiciary and that focus on individuals in the context of restoration is misplaced. While the proposed removal process is indicative of the PPP’s approach to institutional independence of the judiciary, equally malicious is the duplicity in the words and deeds of the party when it comes to emphasis on individuals. While the PPP emphasizes de-linking the movement for judicial independence from the restoration of CJ Chaudhry, what it wants in reality is a shift of focus from the person of CJ Chaudhry in a manner that serves the person of Justice Dogar. That is why the draft bill includes three articles that have been drafted solely to return Justice Dogar to the office of the chief justice even in the aftermath of restoration. Under Article 179(2) the tenure of the chief justice will be capped at three years (or maybe five if the pressure from the PML-N and the lawyers doesn’t subside) to hastily show CJ Chaudhry the door after restoration.

Given that Justice Dogar reaches the age of superannuation on March 21, 2009, the retirement age of the judges of Supreme Court is being enhanced to 68 through Article 179(1), to give him a few more years as chief justice. But then there is the problem of Justice Javed Iqbal who was the second senior most judge on Nov 3 after CJ Chaudhry. While Justice Javed Iqbal was not invited to be a PCO judge he was offered a ceremonial position by the Musharraf regime that he took citing personal financial need. Now if all judges are restored, the CJ’s tenure is capped and the retirement age enhanced, Justice Dogar still won’t become CJ as Justice Javed Iqbal is not only senior but would also retire after Justice Dogar. Thus a proviso has been added to Article 270CC, stating that all judges would be restored, except a judge who has taken up another position with the government. Justice Javed Iqbal is the only such judge and so instead of including a long-winded fable in the proviso, Mr Naek could simply have stated that all judges except Justice Javed Iqbal will be restored.

The PPP’s draft bill has been a disappointment of enormous proportions. One the one hand it documents the double-speak of the PPP that enjoys taking jibes at the general as a populist measure while seeking to indemnify his felonies by amending the Constitution, and utters platitudes in favour of a strong judiciary while devouring its independence through law. On the other hand, the content of the draft bill suggests that the PPP has no intention of resolving the judicial gridlock. As an embodiment of the PPP’s policy on the issue of restoration of judges and judicial independence, this bill makes evident that the incumbent PPP leadership simply does not subscribe to the principles that have been driving the rule of law movement and the choice of constitutional amendment as a mode to restore judges is simply a smokescreen to defer the issue indefinitely.

To the extent that PPP’s policy on restoration is being defined by its desire to have a pliant ‘jiala’ court serve its government uninhibited by law and principles, it cannot afford to restore the deposed judges without amending Article 209 of the Constitution. Because the moment the Nov 3 judiciary is restored, the Supreme Judicial Council under the existing Article 209 could be constituted to investigate the misconduct of the PCO judges, and consequently the leverage Zardari house enjoys in this regard might vanish in a moment along with its dreams of retaining a Dogar Court to look out for Mr Zardari’s legal interests (including the longevity of the NRO). And then the constitutional amendment route has its advantages too. After all the PPP has never explicitly stated that it is opposed to restoring the judges and yet in theory it has now thrown the ball in the court of its coalition partners by handing them the malevolent draft bill.

The coalition partners, the lawyers, civil society and the media can now continue to debate the draft bill clause-by-clause, and once it is introduced in parliament, the debate and disagreement can continue till the cows come home. Meanwhile, the deposed judges can hang in a limbo, the Dogar Court can stay in place, and Zardari House can continue to hold the reigns of the country. During this period of foot-dragging in the name of consultation, the lawyers’ movement might die its own death due to fatigue. If that doesn’t happen and the long march does shake up the echelons of power, the immediate casualty will be General Musharraf. And such outcome might in itself take the wind out of the sails of the lawyers’ movement by providing an exhaust to this nation’s pent-up anger and emotion. And then PPP can take charge of the presidency as well while continuing its antics in parliament over the restoration issue.

Asif Zardari has written an intelligent script. But as a student of history and politics he should heed the lessons from General Musharraf’s recent experience and realize that in real life fairytales do not always end as desired. During the first half of 2007 there were ample opportunities for the general to read the writing on the wall and change course. Being the commando that he is, he sought to become infallible and consequently trapped himself in a corner where he now remains at the mercy of Mr Zardari and their US patrons. There is always a time for redemption, followed closely by unforgiving accountability. The pursuit of his self-scripted fairytale might appear to be the best option for Asif Zardari for the time being. But appearances can be deceptive. The safer option would be to reassess his options with a finger on a national pulse and make amends before time runs out.

By Babar Sattar

PJC, LRWC, ALRC and LWB/C repeat the call on the new government of Pakistan to act to ensure:

1. The reinstatement of all judges removed from office by the Provisional Constitution Order No. 1 of 2007, November 3 2007 in accordance with the Murree Declaration; and

2. The rescission of all laws, including amendments to the Constitution of the Islamic Republic of Pakistan (Constitution), purporting to come into force under authority of the Proclamation of Emergency Declaration of November 3, 2007, the Provisional Constitutional Order No. 1 of 2007 and the Oath of Offices (Judges) Order, 2007

3. Withdrawal of charges laid after November 3/07 against lawyers and others for protesting the imposition of martial law including charges of high treason, sabotage, destroying public property and maintenance of public order.

4. Strict adherence by Pakistan officials to laws validly in force prior to November 3, 2007 and to applicable international standards protecting the independence of lawyers and judges including those embodied in the UN Basic Principles on the Role of Lawyers[3]and the Basic Principles on the Independence of the Judiciary.[4]
Background

LRWC, ALRC and LWB/C deplore the death of 11 people in Karachi including the death by burning of 6 people believed to be lawyers. LRWC rejects false accusations against members of the Lawyers Movement and regards all attempts to vilify these lawyers and other social justice activists as a pretext to justify illegal activities: the continuation of the suspension of the Pakistan legal system and extra-legal attacks on and executions of those advocating its return.

Since March 2007 millions of people inspired by thousands of lawyers, have peacefully protested the destruction of the Pakistan legal system by the Musharraf regime and advocated for the restoration of an independent judiciary and the law, properly enacted for a proper constitutional purpose. Pakistan lawyers, Pakistan citizens and lawyers around the world have protested against the March 2007 suspension and house arrest of the Chief Justice of the Pakistan Supreme Court, the arrest and maltreatment of thousands protesting the chief justice’s removal, the Emergency Measures Declaration of November 3, 2007 and suspension of the Constitution, the sacking and detention of judges who refused to conform to the Oath of Offices (Judges) Order 2007 and the arrests of thousands of lawyers and activists, including Pakistan’s most senior lawyers.

The emergency measures imposed on November 3, 2007 by Musharraf were unlawful under the Constitution, failed to meet United Nations standards for states of emergency and violate international standards for non-derogable rights. On November 5, 2007 the High Commissioner of Human Rights Louise Arbour characterized the state of emergency as illegitimate and called on Musharraf to restore the independent judiciary before the election. Instead thousands of lawyers, judges and activists were arrested for peacefully advocating adherence to customary international law and the Constitution and for peacefully protesting the military regime’s suspension of the Constitution, sacking of judges, arrest of thousands of human rights defenders and violations of fundamental human rights and freedoms.

LRWC, ALRC, LWB/C and 16 other NGOs representing thousands of lawyers around the world concluded, in the statement[5] submitted to the UNHRC, that the November 3, 2007 emergency measures were illegal and that all laws created and state actions taken into reliance on the Proclamation of Emergency of November 3, 2007 were enacted and done without legal authority and therefore are null and void, ab initio and must be reversed.

On March 10, 2008 the Pakistan People’s Party (PPP) and the Pakistan Muslim League (N) agreed, inter alia, ” 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.”[6] Parliament was recalled on March 17, 2008. Prime Minister Gilani unambiguously confirmed this commitment (the Murree Declaration) when he was sworn in on March 24/08. However, it appears that the Parliament of Pakistan is unable to restore the judiciary or the Constitution while Musharraf is President without risking dissolution. Pressure from certain foreign governments seeking a military presence in Pakistan may also be a factor.

Required Action

LRWC, ALRC and LWB/C call on the government of Pakistan to:

o denounce attacks on lawyers and others advocating the restoration of the judiciary and the Constitution; and,

o denounce the attacks that resulted in the deaths of lawyers and other people in Karachi, April 9, 2008; and,

o negotiate with all political parties and with representatives of the Lawyers Movement to reach an agreement on how best to honour the Murree Declaration and to restore and protect an independent judiciary; and,

o prevent further attacks and punish past attacks on lawyers, other rights-defenders and other people in Karachi by:

a) immediately providing effective protection; and,

b) conducting prompt and effective investigations into the deaths of all the people killed in Karachi on April 9, 2008; and,

c) ensuring the accountability of perpetrators including state agents, through proper prosecutions and fair trials and in accordance with the requirements of the UN Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions.

Lawyers Rights Watch Canada (LRWC) is a committee of Canadian lawyers who promote human rights and the rule of law internationally by providing support to lawyers and other human rights defenders in danger because of their advocacy. LRWC is an NGO in Special Consultative Status with the Economic and Social Council of the United Nations (ECOSOC/UN). Other statements on Pakistan: www.lrwc.org/pub1.php

Asian Legal Resource Centre (ALRC) is a Hong Kong-based NGO with General Consultative status with ECOSOC/UN. Founded in 1986 by a prominent group of jurists and human rights activists in Asia, ALRC promotes respect for human rights in the region through the strengthening of institutions of the rule of law, notably the police, prosecution and judiciary. It also seeks to strengthen and encourage positive action on legal and human rights issues by the bar and other legal bodies and personnel, at the local and national levels and to promote rights in the region through advocacy, research and publications, such as Article 2.

CONTACTS:

Lawyers Rights Watch Canada, Gail Davidson www.lrwc.org; lrwc@portal.ca; +1 604 738 0338
Asian Legal Resource Centre Basil Fernando, Executive Director, Tel: +(852) – 2698-6339, alrc@alrc.net; www.alrc.net

[1] This statement is also endorsed by Elise Groulx in her capacity as President of the International Criminal Defence Attorneys Association (ICDAA).

[2] Statement by Lawyers Rights Watch Canada to the Seventh Session of the Human Rights Council regarding unlawful emergency measures in Pakistan, February 20, 2008. Endorsed by: Dutch Lawyers for Lawyers Foundation-L4L, Asian Legal Resource Centre Commission-ALRC, Lawyers Without Borders Canada-LWB/C, International Association of Democratic Lawyers-IADL, Republican Attorneys Association-RAV, Bar Human Rights Committee of England and Wales-BHRC, National Lawyers Guild-NLG, American Association of Jurists-AAJ , Rule of Law Project, Lahore University of Management Sciences-LUMS, International Association of People’s Lawyers-IAPL, National Union of Peoples’ Lawyers-NUPL, Counsels for the Defense of Liberties-CODAL, Front Line-International Foundation for the Protection of Human Rights Defenders, International Criminal Defence Attorneys Association-ICDAA, South Asian Network for Secularism and Democracy-SANSAD, Law Society of Upper Canada-LSUC, Trial Lawyers Association of British Columbia-TLABC.

[3] Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990. www.lrwc.org/documents/Pakistan.LRWC.Statement.to.UNHRC.Mar.08.doc
[4] Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.

[5] Supra,note 1.

[6] Murree Declaration, para. 2, http://www.hindu.com/nic/pakistan-murree.htm