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Legal Eye

June 7, 2008

The PPP's malevolent bill


June 7, 2008

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

"We cannot work with anyone who has suspended the constitution, imposed emergency rule, and oppressed the judiciary. That is why we are holding the long march." No, these are not the words of Aitzaz Ahsan, but those of Benazir Bhutto who planned the PPP's "long march for democracy" after Gen Musharraf's unconstitutional acts of Nov 3, 2007. With Benazir Bhutto, Amin Fahim, Sherry Rehman, Nahid Khan, Safdar Abbasi and others placed under house arrest in Lahore and other prominent leaders such as Yousuf Raza Gilani, Shah Mehmood Qureshi and Qamar Zaman Kaira arrested while on the road, the PPP's long march did not amount to much. But it was rooted in the principle that the PPP deemed the general's actions of Nov 3 illegal and abhorrent and stood firmly against them. The Constitution Amendment Bill drafted by the PPP now seeks to renounce that principle by implicitly indemnifying the general's Nov 3 actions.

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.

(To be concluded)

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