For the good of the people

By Arif Nizami

The judicial crisis that had engulfed the entire nation in the past few weeks has finally come to an amicable end. Thanks to the statesman-like approach of Chief Justice Iftikhar Mohammad Chaudhry, Prime Minister Yusuf Raza Gilani’s consensus-building skills and President Asif Ali Zardari rising above his ego, an unmitigated disaster has been averted. The chief justice’s recommendations have been accepted in toto, including the elevation of Justice Saqib Nisar and Justice Nasir Khosa to the Supreme Court and appointment of Justice Khalil Ramday as an ad hoc judge of the apex court.

Prime Minister Gilani’s dramatic appearance at the dinner hosted by Justice Iftikhar Mohammad Chaudhry to bid farewell to Justice (r) Khalil Ramday was the first indication that the government was seeking ways to end the impasse created by its gross misreading of the situation. Although it is being claimed that the prime minister came unannounced and without an invitation, it is most likely that the drama had been scripted beforehand with the tacit approval of the stakeholders.

It is no coincidence that at the dinner the chief justice was flanked by Yusuf Raza Gilani on his right and Barrister Aitzaz Ahsan on his left. Barrister Aitzaz was the lawyer-strategist, driver and scriptwriter of Justice Iftikhar after Gen Musharraf had unceremoniously sacked the chief justice. Hence, apart from being an old guard PPP man and member of the CEC, Aitzaz also enjoys the confidence of the chief justice.

Backdoor efforts to diffuse the crisis could have still come to naught if all parties concerned had persisted with their respective egos. The judicial crisis started when, contrary to the advice of the chief justice of the Supreme Court, the president elevated the chief justice of the Lahore High Court, Khwaja Mohammad Sharif, to the Supreme Court and appointed Justice Saqib Nisar as the LHC’s acting chief justice. A bench of the apex court hastily suspended the notification the same evening.

The very next day PML-N supremo Mian Nawaz Sharif suddenly woke up from his slumber and not only declared President Zardari as the biggest threat to democracy but also demanded that he bring back his money stashed away in foreign bank accounts. Both the PPP and the PML-N taking to the streets and making vitriolic statements literally provided fuel to burn effigies of each other’s leadership. It seemed that the fragile democratic institutions still transiting from long period of military dictatorship would be the first casualty.

Notwithstanding different legal interpretations being given to the process of appointing and elevating judges of the higher judiciary under the Constitution, there is wide consensus among the legal fraternity that the chief justice of Pakistan is the final authority in appointing and elevating judges and his advice is binding on the executive.

On the one hand, in the famous Judges’ Case of 1996, Justice Sajjad Ali Shah ruled that the senior-most judge had the legitimate expectancy to be elevated and that consultation between the executive and the chief justice should be meaningful. However, much later, in 2002, a five-member bench of the apex court, contrary to its earlier judgment, ruled that the principles of legitimate expectancy and seniority did not apply to appointment of Supreme Court judges. Hence, as the law stands today, the chief justice of Pakistan, being the sole arbiter, enjoys a virtual veto in the matter.

This naturally puts the executive at a disadvantage on the issue of appointing judges according to its whims and wishes. The constitutional crisis had its genesis in the mistaken perception shared by the presidency and the governor of Punjab that Justice Sharif, being “more Sharif than the Sharifs,” was trying to pack fresh judicial appointments with his cohorts. Hence, come what may, he must be kicked upstairs.

It was also naively assumed that Justice Saqib Nisar, known to be a man of integrity, would somehow be more flexible and amenable to the blandishments of the PPP. Under the Constitution, the governor of Punjab had the option of giving cogent reasons for not accepting the names of some of the judges. But perhaps being aware that even that process is justiciable, he decided to simply sit on the files.

It has been proved beyond doubt that the government was either deliberately misled by its legal eagles or once again they simply rose to their level of incompetence. Reportedly, Law Minister Babar Awan informally proposed that the chief justice should agree on a common list of appointees to high courts in a spirit of give-and-take, little realising that under the Constitution the judiciary is under no compulsion to agree to a cherry-picking process.

If recent history is any guide, confrontation with the judiciary has never paid off, especially in the case of civilian governments. Ms Benazir Bhutto, when she was prime minister, made a scathing speech in the immediate aftermath of the 1996 Judges’ Case, bitterly criticising the higher judiciary under Chief Justice Sajjad Ali Shah. The chief justice subsequently did not spare her and sanctified her dismissal by Farooq Leghari in a manner that clearly favoured her opponent Nawaz Sharif.

Prime Minister Nawaz Sharif, heady with his “heavy mandate,” took on Sajjad Ali Shah within a year after coming into power. He almost lost his government after his goons stormed the Supreme Court Building. The situation was only saved by tacit intervention by then-COAS Gen Jehangir Karamat. Much later, Musharraf was victim of his short-sighted decision of unceremoniously sacking Chief Justice Iftikhar. This proved disastrous not only for him but also for his quisling Muslim League, which lost badly at the hustings.

There are lessons to be leant for Mr Zardari as well. Notwithstanding the acts of commission and omission of the judiciary in our chequered political history, confrontationist mode with the higher judiciary is neither in his interest nor in the long-term interest of the country. Apparently, the PPP’s coalition partners, including the MQM, were not in favour of continuing with the state of confrontation with the judiciary. This is the message that was conveyed to Prime Minister Gilani when he left the meeting of the coalition partners at the Presidency to “gatecrash” Chief Justice Iftikhar’s dinner.

The recent impasse has amply demonstrated that the present system of appointment and elevation of judges of the superior courts is indeed flawed. To say the least, the process leaves grey areas, which tempts the executive to block appointments or elevation of certain judges in order to pack the courts with its favourites. On the flip side, the higher judiciary can skew the process in a manner that can create hurdles for the executive.

The obvious casualty in such a tug of war is the hapless common man who had hoped that an independent judiciary would deliver justice at his doorstep. The lawyers’ movement was as much about the restoration of Chief Justice Iftikhar and his colleagues as about establishment of rule of law and access to justice for all. These lofty goals, however, remain elusive.

The judges, who are only supposed to speak through their judgments, with the exception of a few, now act like politicians making public utterances and hobnobbing with the executive as a rule rather than the exception. And the lawyers’ bodies that were the vanguard of the movement are too divided and embroiled in their turf wars even to give a cursory thought to much needed legal reforms.

The Charter of Democracy signed with much fanfare by Mian Nawaz Sharif and the late Ms Bhutto while they were in exile in London, clearly lays down a bipartisan approach for appointments to the superior courts. Mr Athar Minallah, a close associate of the chief justice and his former spokesman, in a recent television interview termed the CoD as the most important document in the country’s history, second only to the Quaid-e-Azam’s historic speech to the Constituent Assembly on Sept 11, 1947, and the 1973 consensus Constitution.

According to media reports the PML-N has recently disassociated itself from the Raza Rabbani Committee drafting the 18th Amendment. It will be in the fitness of things for the PML-N to go back in the deliberations and insist upon. including the process of appointment of judges in accordance with the CoD in the agenda of the committee. It’s time our politicians put their heads together for the good of the people rather than merely fighting their turf wars.