One major issue continues to dog the public imagination: how to resolve the “judges’ issue”. Unfortunately, the general debate on it is plagued by passion, prejudice and pure political opportunism while rationality and bipartisanship are in short supply.
The “lawyers’ movement” was launched to restore Iftikhar Chaudhry as chief justice of Pakistan. This was a good and great thing. But after Mr Chaudhry was reinstated, a new political goal was articulated at the behest of some political parties and politicians-cum-lawyers, whereby the judges and lawyers jointly embarked on judicial action along with political agitation to oust President Musharraf. But there were two problems with this development.
First, it had everything to do with the political fate of one person (President Pervez Musharraf) and little to do with the institutional requirement of an “independent” or competent judiciary – no judicial reforms were articulated to separate the judiciary from the executive or improve the efficiency and conduct of the judges and lawyers in delivering justice. Indeed, the leading PMLN party which was fueling the movement had a bad track record in its treatment of the judiciary. And many of the leading judges who had suddenly become icons of virtue were the very ones who had not so long ago brazenly sworn oath on another PCO by the same military dictator. In fact, it was this political goal that provoked the November 3 PCO and exacerbated the political crisis.
Second, whatever the goals of its constituent elements, it was objectively inclined to undermine the electoral aims and interests of the PPP, the largest political party in the country, while promoting those of the PMLN, JI, TI etc. The call for an election boycott and violent confrontation with President Musharraf were part and parcel of this political strategy. Inevitably, the media was dragged into this confrontation by the necessity of circumstance and got the stick from the executive when it sided with the popular sentiment. This provoked it to become a party to the conflict.
The problem now is that despite the verdict and mandate of the masses in favour of a peaceful and stable transition to democracy following the general elections, a dangerous hangover exists in the overtly politicized “lawyers’ movement” and a section of the media. These elements seek to compel a resolution on their own unaccountable terms which have more to do with the political objectives of some lawyers and political leaders and the anger of some media owners than with the establishment of a truly institutionally “independent” judiciary. The political overthrow of any dictator cannot simply be equated with the automatic arrival of an independent judiciary. If that had been the case, justice would have arrived at our doorstep after the 1970 elections and the judges of today would have earned our unequivocal respect.
So if we want an independent judiciary and a just solution to the crisis of the judges, the right way to go about it is via parliament. A constitutional amendment that incorporates a full package of incentives and disincentives in pursuit of the goal of an independent judiciary is the need of the hour. If the restoration of all the judges has now become a political issue that must be conceded in order to break a political deadlock, so too is the need for the cause of an independent judiciary to swiftly weed out all those judges who have become overtly political or controversial or partisan in any way. Indeed, the restoration of all the judges should be a cause for strengthening the transition to democracy and political stability rather than plunging headlong into confrontation again.
So if truth be told, the approach of Mr Asif Zardari to let parliament do the talking and negotiating is right and that of the “lawyers’ movement” and its political appendages in the form of some political parties, some media and some politicians-cum-lawyers is plainly wrong. In the interest of political stability and judicial propriety, the “All Plus” political solution of restoration of all judges must dialectically go hand in hand with “Some Minus” judicial clauses leading to the ouster of some old and some new judges even if it takes longer to negotiate and implement.
The issue of whether President Musharraf stays or goes, and when and how, or what powers he may retain, should also be left to parliament. Professional elements like lawyers and the media can and must weigh in with their opinions but they cannot dictate the political agenda of political parties and parliament mandated by an election whose results are universally accepted. Certainly, judges don’t have such political rights.
The “lawyers’ movement” and its leaders have done yeoman’s service to the cause of civilian rule and supremacy in Pakistan. No military dictator will ever again be able to seize power in the expectation that the judges and lawyers of the day will line up to be sworn in under his PCO. Indeed, every budding civilian autocrat or fascist will have to tread carefully lest he provoke the lawyers and media and judges of this country. That is the true and historic achievement of the “lawyers’ movement”. By overstretching its case and threatening the prerogatives of parliament, it can only damage its hard won credibility.