By Ansar Abbasi
ISLAMABAD: If the reported agreement in the Nawaz-Zardari Dubai meeting for a “compromised” restoration of the deposed judges as suggested by media reports is correct, it would be unfortunate for the independence of the judiciary whereas the PML-N would find itself in a big political gamble.
It is said that after the restoration of the deposed judges through a National Assembly resolution, a Constitutional package would follow which, on the one hand, would cut the tenure of chief justice Iftikhar Muhammad Chaudhry by limiting it to five years while, on the other hand, the retirement age of the SC judges would be raised to 68 from the existing 65 years to allow Justice Abdul Hameed Dogar to serve as the CJ after the early retirement of Justice Iftikhar.
The reported amendments in the Constitution as claimed to have been agreed to by the two sides are person-specific and not meant for the institution of the judiciary. It is unfortunate that Justice Iftikhar would be sent home at the age of 62 because Asif Ali Zardari does not like him whereas three years of SC judges’ existing retirement age would be raised because it would enable Zardari’s choice judge Justice Abdul Hameed Dogar to serve as the CJ.
The one whose tenure is being cut has made history by saying “no” to a military dictator when asked to retire and later refused to take oath under the same dictator’s PCO, which was also declared unconstitutional by a 7-member bench of the SC under the same CJ.
On the contrary, the judge, for whom the retirement age is enhanced, had taken the oath under the general’s PCO on Nov 3, 2007 and later validated the unconstitutional steps of the same dictator.
And what is really interesting to note is that the most senior judge of the SC after the deposed CJ Justice Iftikhar is Justice Javed Iqbal, who would not be reinstated because the PPP has objected that by accepting the job of chairman Pakistan Press Council he ceases to be a judge.
This lame excuse has been carved out to clear the way for Justice Dogar to get to the office of the chief justice of Pakistan after the retirement of CJ Iftikhar. Justice Javed Iqbal is though senior to Justice Dogar, he is younger in age and retires in 2011 if the present retirement age of 65 years continues. If Justice Javed Iqbal is reinstated, there is no possibility for Justice Dogar to become the chief justice no matter how parliament amends the Constitution.
Understandably, the two parties have agreed to this future “distortion” of the Constitution to ensure the continuation of their coalition but this would not be a safe bet for their mutual rule at the Centre and in the Punjab. The lawyers’ fraternity and those who believe in the rule of law and the institution building would not welcome such a compromised solution to the ongoing judicial crisis.
It would be a huge gamble for the PML-N, which by agreeing to the reported amendments would be seen as a political party to have gone for a sell-out of its mandate for the sake of its rule in the Punjab.
The PML-N that has so far been firm in its stance, in such a case, would lose the respect that it has earned during the recent years. For many, the continuation of coalition is important than anything else but without an independent judiciary all such achievements would remain meaningless. The PML-N perhaps still has the chance to rethink its strategy. Compromised solutions have never delivered in the past and nor they would do so now.
However, one positive development is the agreement between the two sides not to consider the Nov 3 PCO as part of the Constitution. Restoring the judges through an executive order following the adoption of a resolution by the National Assembly would be a defeat for the pro-dictatorship forces or those who consider that whatever the military general did on Nov 3 and later was now part of the Constitution.
Source: The News, 3/5/2008