Thursday, March 20, 2008

Let the original judges return

17th March 2008

Naeem Sadiq

(Courtesy DAWN)

Just imagine for a moment that an ordinary government servant, say a Lower Division Clerk of the Revenue Department appears on a local TV Channel and announces that the constitution of Pakistan is no more valid and the country would hence forth be run by a new law introduced by him, called the CCO (Clerks Constitution Order). This gentleman further states that all judges should consider themselves fired and house arrested, unless they take an oath on his newly invented CCO. What is going to be the reaction to this rather ludicrous announcement? Most people are likely to consider it comical and disregard it as an incident of no consequence. Some others may consider this person to be suffering from a delusion of grandiosity, some form of megalomania, acute egocentricity or simply undergoing a hypomanic episode. The newspapers would hardly bother to cover this story, except for some eveningers which might wish to use this as a filler for left over spaces. The local Nazim may ask the SHO to discipline this LDC for a day or two, till he learns not to talk about issues that do not strictly fall in the realm of land revenues. The Interior ministry would not even feel the need to issue a clarification, as they would not like to extend any more credence to this inconsequential irrelevance. The Parliament would not be required to even take a notice of this absurdity, while the Judges would certainly not be seen bee lining in large numbers, dying to take oath under the new CCO.

Now imagine another government servant, say the Chief of the Army Staff, one day does exactly the same thing that the UDC did, except that he calls his figment as PCO instead of CCO. One would imagine exactly the same sequence of events to repeat themselves. People considering this to be a lunatic expression and the government not even bothered to issue a clarification. The civil society does not take to the streets and the constitutional experts do not hold seminars to debate how this illegal lacunae may be resolved. The parliament would not hold a special session to undo the PCO or to restore the judges, for the judges would keep going to their offices as normal. The state institutions, police bureaucracy, ministries, and executives of all kinds would ensure that nothing hinders the judges from performing their routine activities. However the Army being a responsible, law abiding, and disciplined force, would not leave this matter to the local SHO, and instead will decide to take the necessary disciplinary action against this gentleman. After all he violated the precious Army Act by indulging in politics and saying things against the constitution. This is how it would happen in any half civilized country, and this is how it should have happened in Pakistan.

Pakistan does need to explore unique methodologies to undo what was completely illegal and irrelevant to start with. The proclamations of November 3, 2007 were the brainchild of a government servant whose oath and job function debarred him from saying or doing any such thing. We do not have to wait for the arrival of the new parliament to make a grand decision to restore the judiciary. The judiciary was never unseated, for the Army Chief has simply no authority to do so. There is neither a court order nor a decision from the parliament required to restore the judges. All that is needed is that the state institutions enable and ensure that all judges can go back to their jobs as they stood on November 3, 2007. In a situation of a blatant conflict between the delusional desires of an individual and the dictates of the constitution of Pakistan, it should not be a complex assignment for the state institutions to decide which option to take. Acting in accordance with the dictates of their conscience and constitution, they should immediately facilitate all judges to resume their responsibilities from where they left on November 3, 2007. Any state institution not doing so is itself guilty of violating the constitution.

Perhaps the matters that the new parliament may look into are why the state institutions including members of their own clan were in such a hurry to rubber stamp such illegal arrangements. Why did the government functionaries (except for the sixty honourable judges) not refuse to obey the blatantly illegal orders of the Army Chief. Perhaps the Army also needs to implement its own accountability process for those who violated the Army Act (besides the constitution of Pakistan). By bringing the violators to justice, we may forever be able to get rid of our seven yearly PCO itch. Alternately we should start tightening our seat belts and brace up for a yet another déjà vu in not too distant future.

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