By Asadullah Ghalib
Asadullah Ghalib, Express, 26 March 2009
Nazir Naji, Jang, 26 March 2009
Storming the Supreme Court with litigation
Hardly had Chief Justice Iftikhar Muhammad Chaudhry resumed his office at the Supreme Court than “constitutional” petitions were filed before the court charging 38 judges who had taken oath under the PCO with contempt and challenging appointments of judges done without Justice Chaudhry’s “consultation”. Yet another petition has sought action against Pervez Musharraf for his “admittedly” unconstitutional actions of November 3, 2007 in subversion of the constitution, as outlined in Article 6 on treason.
People with a strong “retroactive correction” in mind want punishment to descend on all and sundry. In non-legal language, they want to pillory all those who took the view opposite to theirs, but if the cases go the way they want them to go, the country’s judicial system will be seriously undermined. The difficulty arises in the convergence of the legal-constitutional and the political-electoral in these cases. Which PCO was more lethal, the one “indemnified” by parliament or the one not “indemnified”?
If a moderate but honest judge quietly in disagreement with Justice Chaudhry’s hair-trigger activism chose not to leave with him, should he be punished today? What should be made of an elected government treating the PCO judges as normal judges and not bringing back the old ones after the Murree Agreement? The lawyers’ stand was that the political parties should not take part in the elections of 2008. It was a legal stand because the general who had done the misdeed of November 3 was now holding them. Elections indirectly legitimised him.
The act of election has its own indemnifying aspects. The fact that the political parties did not abstain from elections, and the fact that the people did not heed the lawyers’ call and voted with an impressive turnout should count for something. If the PCO judges have sat in judgement on cases that have been accepted as jurisprudence then how can they now be forced to leave? If a de facto capacity is allowed to these judges then what stops the “reinstated” court from making them de jure automatically? What is important is to realise that excessive backward-looking litigation is not going to benefit Pakistan. (Daily Times, 26 March 2009)