Independent Judiciary FAQs

Iftikhar Chaudhry took oath on PCO in 2002 and now rejected the PCO in 2007?

The PCO which Musharraf presented in 2002 was not declared null and void by the Supreme Court of that time. The PCO of 2007 declared martial law in the country and abrogated the constitution. It was anti-constitutional, anti-state and clearly against the rights and wishes of the people of Pakistan. Furthermore, the PCO of 2002 and the oath of office order were given indemnity by a two-thirds majority in both houses – the 17th constitutional amendment. Therefore, from a purely legal point of view, taking oath under that PCO was not illegal. No doubt we have our reservations even about the first PCO and its legality, but the fact of the matter is that it was, in one way or the other, given some legal cover. On the other hand, the PCO of 2007 and the oath of office order haven't yet been given any constitutional cover by Parliament; therefore, it is not legal. Hence, taking oath under it is also extra-constitutional and illegal.

Beyond the legal argument, let us also keep in mind that the most popular democratically elected leader in our history, Z.A.Bhutto, was once in the cabinet of a dictator. So was Nawaz Sharif, another popular leader (during Zia's dictatorship). If we can forget this and support these leaders for the cause of democracy, why not the PCO of 2002 for the cause of an independent judiciary?

Iftikhar Muhammad Chaudhry got his son appointed at a position which he did not deserve. A notice on this was sent to the President and thus he rightly removed him?

As per the Constitution of Pakistan, the President has no right to remove a judge of the SC. The only way through which a judge of the superior judiciary can be removed is through a mechanism provided in the Constitution - the Supreme Judicial Council, which consists of the three most senior judges of the Supreme Court, and the two most senior chief justices of the four high courts of Pakistan. The council, after due inquiry, is authorized to retain or remove the judge against whom a reference has been filed.

Let's assume the Chief Justice was guilty of the alleged act of nepotism, who gave the illegal, self-proclaimed President of the country the right to remove a serving Chief Justice (CJ) of the Supreme Court of Pakistan?

Iftikhar Muhammad Chaudhry rejected the bail plea of Zardari. Why?

This is not correct. He was not the CJ at the time when his bail plea was presented. And in case he was responsible for this, should we forget all his contributions for the nation and state from July 2005 to November 2007 and reject him for not supporting one single person – whose character is hardly considered blameless by the public at large!

The judiciary has been responsible for the murder of ZA Bhutto. Every dictator derailed the process of democratization in Pakistan by using the judiciary to validate his rule. Now why are you shouting for them?

This is very true and is the basic reason for the success and gusto of the lawyers’ movement. The judiciary has been the puppet of dictators in the past but this is the first time in our history that the judiciary has taken a principled and moral stand. By rejecting PCO and Emergency Rule, they have resisted a military dictator for the sake of the supremacy of the Constitution and the sovereignty of Pakistan. We have an opportunity to strengthen our institutions. Democracy won't prosper until we have an independent judiciary to shelter it.

Well, Iftikhar Muhammad Chaudhry was reinstated in July 2007 and remained the CJ till November 2007. What were his character and achievements in this period and throughout his tenure as the CJP ?

Following are a few of the major achievements of deposed judges and the CJP:

- 18,000 cases solved of a total of 26,000 filed cases.
- 7,000 suo moto notices on various issues providing free and quick justice for the people. It is to be noted that the total number of suo-moto notices was 21,000 where 7,000 were solved. Several suo moto notices on national issues despite Army rule is yet another first in the history of Pakistan.
- Notice of 3000+ missing persons in Pakistan kidnapped illegally by agencies, hundreds released
- Notice on price hike and food crisis
- Rejected the anti-constitutional, anti-state PCO and put the dictator to the courts. A clear rejection to the ‘doctrine of necessity’.
- Suo moto notice on steel mill privatization case which was being sold for less than 10% of its value. He blocked this corruption worth more than 100 billion PKR!
- Suo moto notice on the tragic May 12 massacre in Karachi where 48 were killed and Musharraf announced that there would be no inquiry, labeling it the force of the people.
- Suo moto notice on New Murree Project, dealer of which was the Punjab Government. This project was criticized by experts for causing immense damage to forests and water supplies which would have lead to undesirable ecological, social and economic consequences.
- Suo moto notice on Murree Golf Club projects where Army illegally occupied over 53 acres of forest land.
- Rejected the PCO which imposed martial law in country, abrogated the constitution and denied civil liberties

A friend of a friend of a friend of mine told me that XYZ judge took ABC million rupees for a case. Why are you shouting in favor of such corrupt judges? They are rightly deposed!

"Always decide on principles, moral values and law, no matter people call it wrong or whatever", says Hazrat Ali in one of his letters to the newly appointed governor of Egypt of his times.

As already discussed, the judges were deposed illegally and un-constitutionally. Musharraf himself admitted in his interview with BBC that this was un-constitutional. As per principles and moral values, even if they were corrupt, they could not and should not have been removed like this. Two wrongs don't make a right!

Secondly, none is perfect. They might have made mistakes in the past as they are humans. I marvel at how easily we forget the corruption of the politicians which we elect over and over again but are not willing to forget minor issues even when we often lack hard facts and have no more than hearsay to go by. The principled stand which these judges took on 3rd November 2007 is historic and enough for us to label them the real heroes of the nation. Their contributions are commendable and prove their abilities and dedication.

But why would Musharraf have to remove the judges when his public image was already getting weak. He was trying to improve his image and thus removing them must have been correct.

When Musharraf removed him and his colleagues, CJ Iftikhar Muhammad Chaudhry was hearing an important case related to the legality of Musharraf as the President of Pakistan. Musharraf was afraid of the upcoming decision as the judiciary had recently gained independence. Musharraf asked his allies, the King's party, for assistance and those incompetent supporters must have suggested that he remove the judges, telling him there was no other way left.

There are hundreds of issues in Pakistan like energy crisis, food crisis, price hike etc. Why are you over-politicizing the judicial crisis?

Because, 'kufr ka nizaam chal sakta hay par na-insaafi ka nahe. jahan adal na ho wo bastiyan ujaar jati hain' (Hazrat Ali).

Judiciary is indeed not the only problem facing Pakistan but it is the most important one. The judiciary is one of the pillars on which the state of Pakistan stands! We are facing many problems but the point is that once we have an independent and honest judiciary, the majority of these problems might be solved as everyone could then be held accountable. Everyone will be subject to the law irrespective of his position. Atleast, this would be the first step in the right direction.

Ever thought:

- why we can't stop smuggling ?
- why we can’t resolve the flour crisis ?
- who is responsible for the energy crisis ?

The answer lies in the fact that we lack an independent judicial system. People break the law because they know they can escape from the law-enforcement authorities. The solution lies in having an independent judiciary which judges on the basis of principles and the law. Once such a system is in place where everyone is equal before the law, a large proportion of such problems will be rapidly resolved.

It is to be noted that food, energy, residence etc are needs of the individual while independence of judiciary is the need of the society in general. Independence of judiciary, supremacy of law and democracy are those needs of the society which ensure the existence and well-being of the state.

Let's say these judges are restored, what's next? What's the guarantee that they won't ditch us, that they will remain independent and honest?

There is no such guarantee; neither can there ever be one. Some people say Parliament is supreme, others say the Constitution is supreme. I say the nation is supreme, the citizens themselves are supreme. Thus we, as a nation, should keep a check on everything and everyone, whether it is politicians, bureaucrats, military or judges. We must seize the power to be supreme and to hold everyone accountable to us. This is an opportunity for us to do so.

Pakistan is going through a transition and we must keep our eyes wide open and play our role. Further, I personally believe that the strength which the students and civil society have recently gained, courtesy Musharraf and the lawyers' movement, must remain intact. The citizens have been transformed into activists and we must be like this. Our active participation can guarantee strong institutions. If we have been on roads for more than a year for a principle and a moral cause, supporting the judges, we must come out to show our strength in case they ditch us.

Why is the lawyers’ movement focused on one person i.e. Iftikhar Muhammad Chaudhry? Isn't it personality promotion?

Not at all. Lawyer's movement backed by civil society, students and media demands the restoration of all illegally deposed judges. It's not just about personalities, it’s about principles. Every judge who refused to take oath under the PCO commands our respect for taking a principled stand. It's not about Iftikhar Muhammad Chaudhry, it’s about principles, moral values, supremacy of law and the Constitution. For his clear stand against Musharraf, he has become a symbol of resistance.

What is the problem with the suspected Constitutional package which increases the retirement age to 68 years and restricts Iftikhar Chaudhry’s tenure as the CJP to 2010?

Musharraf deposed around 60 judges of the superior courts including the CJP on the grounds that he was expecting a decision against him. He replaced them with the judges of his choice who took oath under the anti-state PCO validating martial law in the country.

Deposing the judges by Musharraf, an illegal president, is unconstitutional. Why do we need a constitutional package to rollback an unconstitutional action? A constitutional package to restore the judges would be accepting the illegal and unconstitutional actions of Musharraf of 3rd November 2007 as correct !

The constitutional package itself seems person-specific:

- Iftikhar Chaudry has to remain the CJP till 2013. Under what principles is his tenure being reduced to 2010 ?
- Dogar is to retire in March 2009 for he is approaching 65, the earlier age limit. Increasing the retirement age to 68 is to make sure that Dogar becomes the CJP after Iftikhar Chaudhry leaves in 2010.

The constitutional package, if necessary, should focus on strengthening the institutions rather than focusing on individuals.

Restoring these judges violates the Charter of Democracy (CoD) signed by the PPP and PMLN which says PCO judges would not be accepted?

This is a myth. The Charter of Democracy signed on 14 May 2006 says:

"No judge shall take oath under any Provisional Constitutional Order or any other oath that is contradictory to the exact language of the original oath prescribed in the Constitution of 1973."

The deposed judges took oath on the PCO before the CoD was signed. They refused to take oath on the anti-state PCO of 2007 when CoD existed. Those judges who took oath on this PCO should not be accepted as this is a violation of the CoD.

Moreover, keeping the PCO judges and restoring the deposed judges of the SC will bring the total number of judges in the Supreme Court to 27. India with a population ten times more than us has 26 judges. Why do we, an under-developed country, need 27?

Source: ALE-Xpressed