What next for judges?

WHERE does the impeachment of President Musharraf leave the non-functional judges of the superior courts? According to the joint communiqué issued by the partners in the ruling coalition last week the judges are to be restored “strictly in accordance with the Murree Declaration immediately after the impeachment of the president”. This statement has been met with some dismay by leaders of the lawyers’ movement. Hamid Khan, former president of the Supreme Court Bar Association (SCBA), told an international news agency that the lawyers are “shocked that coalition leaders just did not really discuss” restoration of the judges. The coalition is “obsessed with the departure” of the president, Mr Khan added. Meanwhile, Aitzaz Ahsan, president of the SCBA, has demanded the restoration of the judges by Aug 14, rejecting the impeachment of the president first.

For those wanting the non-functional judges to be restored, the joint communiqué has indeed given rise to fresh uncertainties. First, the joint communiqué did not clarify the mode of restoration — a key sticking point betweenthe PML-N and the PPP for months. Reference to the Murree Declaration is no good because the declaration itself did not clarify if the judges were to be restored directly by a parliamentary resolution or if a constitutional amendment is permissible. Second, what if the impeachment motion fails? The communiqué only says the judges will be restored “after the impeachment” of the president. Does this mean the process of impeachment, whether successful or not? Or does the communiqué only pledge restoration if the president is successfully impeached? If it’s the latter, the politicians have clearly spelled out that failure is not an option. In the world of Pakistani politics, this may be a stretch too far for the judges and their supporters.

The lawyers’ movement is also worried about the possibility of President Musharraf using Article 58-2(b) to dissolve parliament. Constitutionally, the president is required to refer dissolution to the Supreme Court. Mr Khan pointed out that, unless the judges are immediately restored, it will be in a court where “Musharraf’s hand-picked judges are working”, implying a fair judgment may not be forthcoming. The PML-N, however, rejects this charge. “The president should be impeached first, because if he stays he would conspire against the restoration of judges,” Ahsan Iqbal has stated. The problem for the non-functional judges, however, is that the lawyers’ movement is struggling for traction with the public. The day before the joint communiqué was issued, the APDM announced a country-wide strike on Sept 1 to protest the government’s failure to, inter alia, restore the judges. In the wake of the communiqué, the APDM component parties lauded the bid to impeach the president and suggested the strike would be called off if the coalition keeps its promise of impeachment first and then restoration. Nine months since their ‘dismissal’ by President Musharraf, the judges would be forgiven if they are sceptical of more promises.