Muneer A Malik writes

First things first

There can be no free and fair election unless all the superior court judges are restored. You cannot put the cart before the horse.

By Muneer A. Malik

It was heartening to see Benazir Bhutto and Nawaz Sharif finally sitting together. The formation of a joint ARD-APDM committee is a positive step. The committee is to agree on a minimum charter of demands that must be fulfilled before the opposition parties participate in the elections.

Naturally, the primary agenda of the opposition parties is to ensure an atmosphere where free and fair elections are possible. But such elections are impossible without the restoration of the superior judiciary to the status quo prevailing on Nov 2. There can be no transition to democracy without an independent judiciary.

Consider this. The Election Commission of Pakistan (EC) is responsible for the overall organisation and conduct of elections. It comprises a retired Supreme Court and one serving High Court judge from each province. The actual nomination and polling process is supervised by District Returning Officers (DROs), Returning Officers (ROs) and Assistant Returning Officers (AROs). Serving district judges, additional district judges and civil judges perform the duties of the DROs, ROs and AROs respectively. The Chief Justices of the pro vincial High Courts have administrative control over the subordinate judiciary. They control their appointments, transfers and promotions.

Any challenges to an RO's acceptance or rejection of nomination papers are to be decided by election tribunals constituted for that purpose. These tribunals consist of High Court judges. Any post-election disputes relating to the qualifications of candidates or allegations of unfairness or rigging are decided by election tribunals constituted for this purpose by the EC. Challenges against decisions of these tribunals end up before the provincial High Courts and finally the Supreme Court.

Every stage of the election process is conducted and supervised by the judiciary. Given our electoral system, it is naïve to say that the issue of restoration of judges can be taken up after the elections. There can be no free and fair election unless and until all the superior court judges are restored. You cannot put the cart before the horse. Independent judges supervising the electoral process are the only guarantee of a free and fair election.

On Nov 3, the Chief Justice of Pakistan, the Chief Justices of two provincial High Courts and the majority of Supreme Court and High Court judges were sacked. The Chief Justice and his brethren Supreme Court judges are under house arrest! It is impossible to over-emphasise the enormity of this action. It has no parallels in Pakistani or any other country's history.

What was their crime? They were hearing a petition against Musharraf's re-election as president. They had not even decided the case! When judges of the Supreme Court can be summarily dismissed and placed under detention for daring to simply hear a petition against Musharraf; how can any judge in the future ever act independently? How can a man who worries for the safety and future of himself and his family ever go against the wishes of the establishment?

My concern for the management and editorial staff of this newspaper prevents me from expressing my views on the few judges who decided to take oath under Musharraf's Provisional Constitution Order (PCO) superseding their original oath to preserve, protect and defend the Constitution. They enjoy their offices while their erstwhile brother judges are forcibly confined to their houses.However, I am told that I can express my 'respectful, temperate criticism' of their judgments. I see no point in doing so. The legal fraternity does not and will not recognise PCO judges and their judgments. There is no point in petitioning courts whose independence is not guaranteed. The handful of lawyers who ignored the Pakistan Bar Council's boycott call, have already witnessed the utterly predictable results of their impetuosity. Likewise, political parties who rush to elections without first securing the restoration of an independent judiciary to supervise the electoral process will regret their haste.

Hundreds of district judges, additional district judges and civil judges throughout Pakistan were transferred with immediate effect by the incumbent de facto Chief Justices of the provincial High Courts just prior to the announcement of the election schedule. Again I am restrained from commenting upon the reasons behind this unprecedented step. But whatever the reasons may be, it is these lower court judges who will perform the functions of returning officers during the entire electoral process. And the EC has refused to reverse such transfers.

I am an optimist but I'm not a fool. The elections will be rigged. The ruling parties shall be returned with a thumping majority in parliament. Should PPP, PML-N, ANP and other opposition parties decide to participate; they shall be left marginalised. The most optimistic outcome could be a hung parliament where legislators will be left with a personal choice between packing their bags and going home or ratifying legislation that will preserve and grant indemnity to the usurper and his actions. And given the absence of an independent judiciary, there will be no legal recourse open to them.

The picture should be clear with the rejection of the nomination papers of the Sharif brothers. Understandably, they consider it futile to challenge the rejection before the current election tribunals and superior courts.

If the opposition parties are serious about securing free and fair elections with a level playing field; they must place the demand for the full restoration of the judiciary to the pre Nov 3 position on the top of their list. This demand has to be non-negotiable. In the absence of a full restoration of the judiciary; any concession granted by Musharraf's regime shall be meaningless.
The continuing protests, in the legal community and beyond, are taking their toll on the regime. The judicial machinery has come to almost a complete standstill. The growing consensus between the opposition parties is an endless source of concern for the establishment. The desperation of Musharraf's regime is evidenced by the number of leaks and feelers being sent out in every direction. Despite the Supreme Court's declaration that the issue of sacked judges is a past and closed transaction; it is being conveyed unofficially that the regime is amenable for a partial restoration of judges.

The legal fraternity shall not brook compromises on this issue. We shall not become party to the regime's attempt to pick and choose between judges and pack the courts with the more pliable ones. Each and every judge must be restored unconditionally. Our stand is based on principles and is not about individuals.

Now the judges who refused to take -- or were not given -- oath under the PCO are men who believe in the rule of law. They took a principled stand for the independence of the judicial institution at great personal cost. If they are restored, some may decide that the larger interest of an independent judicial institution requires them to make further personal sacrifice. But that choice must be theirs and theirs alone.

I have closely known the Chief Justice of Pakistan, Iftikhar Mohammad Chaudhry, Chief Justice of the Sindh High Court, Sabihuddin Ahmed and the Chief Justice of the Peshawar High Court, Tariq Pervez. I can testify to their honour and lack of vindictiveness.

But it is for the establishment to decide whether it prefers a course of confrontation that will plunge the nation into turmoil or whether it wishes to restore Pakistan's stability by submitting to the rule of law. The writer is a former president of the Supreme Court Bar Association, who is currently hospitalised following renal failure during his detention in Attock jail.

The writer is a former president of the Supreme Court Bar Association, who is currently hospitalised following renal failure during his detention in Attock jail.