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Ejaz Haider: CJP restored; CJP sans Swat?

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In Pakistan it is difficult to determine where to begin and how far to go back to set things right. Such situations call for pragmatism rather than sheer idealism, which is why Justice Chaudhry, the PCO 1 judge, was acceptable while PCO 2 judges were not

While the rest of Pakistan was celebrating the restoration of the deposed Chief Justice of Pakistan as indicative of the rule of law, in another part of Pakistan (if it can be called that), a more regressive step was being taken.

In Swat, where state authority has been ceded to the Taliban by the provincial government, a step the Centre has tacitly agreed to, Sufi Muhammad, leader of the Tehreek-e Nifaz-e Shariat-e Mohammadi, has asked the lower judiciary and the lawyers to leave the area since the system they represent is not functional in his domain any more.

Need it be said that Sufi Muhammad’s interpretation of the deal with Peshawar — a deal quite mysterious — is very different from its marketing by the NWFP chief minister Ameer Haider Hoti?

Hoti had earlier claimed that nothing had changed except that people would be provided speedy justice and there would be an appellate court in Malakand. On the question of what kind of sharia (and whose) would be enforced, he had said that the constitution of Pakistan was already clear that no law repugnant to Islam could be on the statute books. In other words, the operation of normal laws, and by extension the writ of the state, was to remain intact.

Hoti was too slick in his marketing, which should have made all of us suspicious. But we have reached a point where all of us are constantly looking for any straws to clutch at. This one, Hoti’s assurance, was most bogus even as straws go.

So yes, while the opposition, notably the Pakistan Muslim League-Nawaz, has called off the Long March and there is jubilation all round, the question is: what next?

In that question resides the devil. Time is serial and the moment is already history. The issue must go beyond the person of the CJP to the institution of the judiciary and further on to the judiciary’s interaction with other institutions of state and society. And, to the gravest threat facing Pakistan: terrorism. The difficult part is yet to come.

What is the CJP going to do about Swat? Can he? Even should he? Important questions because Justice Iftikhar Chaudhry liked to delve in policy and this is what someone rightly called a problem from hell.

At the minimum what has happened in Swat means that if it is not revised, the title CJP would need a suffix in parenthesis, ‘sans Swat’, because the system Justice Chaudhry heads is not acceptable to Sufi Muhammad running his satrapy. The loss of territory is a problem that requires something more than threatening Long Marches.

But lest anyone misconstrue this as an attempt to undermine the moment. In which case, here’s some evidence of the specifics without reference to the problem of terrorism.

Exhibit A: The problem of the movement from principles to policy. Let’s hark back to where and how the crisis began. The Supreme Court under CJP Iftikhar Chaudhry had begun to cross the fine line between its powers to adjudicate and the executive’s need to take political and policy decisions. Courts do travel the distance from principles to policy but such movement must remain the exception. Under Justice Chaudhry, it became the norm.

It is instructive that around the same time in 2007, a division bench of the Supreme Court of India in a judgement warned against interfering too much in the workings of the executive. That decision has been controversial. But at the minimum it shows the conceptual-juridical complexities involved in determining the turf.

In a country like Pakistan where politics has generally trumped law, a debate on the issue becomes even more important because it offers a paradox: the judiciary trying for that very reason to uphold law and strike back to restore the balance and ending up instead with creating more anomalies.

This is what caused the then-government of General Pervez Musharraf (retd) to try and get rid of Justice Chaudhry. The action was widely unpopular and Musharraf tucked tail and let the SC restore Justice Chaudhry. The SC, pointing to the Presidential Reference as based on mala fide, determined that it did not warrant judicial scrutiny by the Supreme Judicial Council.

The restoration, a victory, should have cautioned the SC against too much adventurism. Instead, it instilled a heady feeling that everything was possible now that Musharraf had been licked. Pushed to the wall, he, however, struck on November 3.

The current crisis, which nearly cost Pakistan its new government, can be traced back to that period.

While Musharraf is gone, some of those issues, including determining the probity of the National Reconciliation Ordinance, remain. What would the restored CJP do now? Amir of the Jama’at-e Islami Qazi Hussain Ahmad and Imran Khan are already expecting the CJP to deliver a judicial revolution. Would he; should he? If he does, Pakistan will be thrown back into the vortex of another political crisis.

If he doesn’t, that would show both the limitation of what can be done and also his pragmatism. It would also show that if he had heeded this lesson between his restoration and second sacking on November 3, the situation would not have come to this pass and the country could have been saved much sweat.

Exhibit B: Linked with this is the issue of the politicisation of the restored CJP. Lawyers reject this argument by pointing to outgoing CJP Abdul Hameed Dogar as more tainted politically. True that, but it misses the point about Justice Chaudhry. The struggle that was waged was essentially political; neither can law be divorced from politics in any Dworkinian sense. Yet, the issue of being on the bench becomes a legitimate concern when a judge, having been in the middle of a political campaign, has to adjudicate cases where people expect, almost demand, a certain kind of verdict — rather than what can or cannot be determined by the court through accepted procedures of law.

The SC under Justice Dogar faced the same problem in cases against the Brothers Sharif. Even if, in theory, the Court had sound legal grounds to disqualify them, the issue had become political rather than remaining anchored in law. Any verdict other than one exonerating them was liable to kick off a political campaign of protest, as it did.

This can now be applied in reverse to the restored CJP. If he absents himself from all such cases, people expecting him to clean up the Augean Stables would be disappointed. Even more troublesome, the political opponents of the PPP, having drawn blood, would like Justice Chaudhry to help them finish the job.

Politics would once again spoil to influence law.

Exhibit C: Expectations that the restoration would lead to strengthening of the judiciary and, even more ambitiously, Constitutionalism, a much broader concept, may be misplaced. While this is a necessary step in that direction, it is not sufficient. The integrity of one institution is a hollow concept. State institutions work in relation to each other. To expect one to show integrity in the absence of an overall institutional culture of integrity is putting too high a premium on optimism.

Exhibit D: Analysts, including former generals, have appeared on tv and praised the army for playing a positive role. One of the tribe, without any touch of irony, said that by streamlining democracy the army had reclaimed its prestige and shown that it would not intervene in politics.

But it did! That’s what its mediation was all about. True, it took the high tide of popular sentiment, but the fact that it had had to break the logjam between the two major political forces by weighing in means that, all said, it retains its arbitration role in the power structure of Pakistan. Even at the best of times for other institutions, and the army is just emerging from a long period of direct rule, trying hard to distance itself from its former chief’s legacy, it remains primus inter pares.

Until such time that the civilians can regain complete supremacy, it is too early to raise the glass to victory.

Finally, in Pakistan it is difficult to determine where to begin and how far to go back to set things right. Such situations call for pragmatism rather than sheer idealism, which is why Justice Chaudhry, the PCO 1 judge, was acceptable while PCO 2 judges were not. Some residual matter from the past has to be accepted to move forward.

Justice Chaudhry will therefore have to tread very carefully, balancing between the passionate idealism of the street and the practical demands of the Court’s functioning in relation to other institutions of state. Not an easy job given that his restoration has not changed much as far as the power structures of the state and their expression is concerned. (Daily Times)

Ejaz Haider is Op-Ed Editor of Daily Times and Consulting Editor of The Friday Times. He can be reached at sapper@dailytimes.com.pk. Parts of this article appeared in the Indian Express

Hamid Akhtar, Daily Express, 19 March 2009

سوات: ریگولر عدالتوں میں کام بند

سوات میں طالبان

نئے مسودے میں تمام مقدمات شرعی عدالتوں میں لڑے جائیں گے

صوبہ سرحد کے ضلع سوات میں ’شرعی عدالتوں‘ کے فعال ہونے کے بعد ضلع بھر میں قائم تقریباً بیس عمومی عدالتوں نے کام کرنا چھوڑ دیا ہے جبکہ حکومت کی طرف سے واضح احکامات نہ ملنے کے باعث عام عدالتوں کے کئی ججوں نے بھی مبینہ طور پر ڈیوٹیوں پر جانا چھوڑ دیا ہے ۔

سوات سے ملنے والی اطلاعات کے مطابق بدھ کو دوسرے روز بھی ضلع بھر میں قائم تمام ریگولر عدالتوں میں کام نہ ہونے کے برابر تھا اور زیادہ تر مقدموں میں وکلاء اور ججوں کی عدم موجودگی کے باعث تاریخ تبدیل کیے گئے۔

سوات میں سول اور سیشن عدالتوں کا دورہ کرنے والے مقامی صحافی غلام فاروق نے بی بی سی کو بتایا کہ شرعی عدالتوں میں باقاعدہ کام شروع ہونے کے بعد ریگولر عدالتوں کے وکلا اور ججوں میں شکوک شبہات پائے جاتے ہیں اس لیے دو دنوں سے ان عدالتوں میں کوئی کام نہیں ہورہا ۔

انہوں نے کہا کہ تین دن پہلے تحریک نفاذ شریعتی محمدی کے سربراہ مولانا صوفی محمد کی طرف سے کیے گئے اعلان میں کہا گیا تھا کہ شرعی عدالتوں کے قیام کے بعد ریگولر ججوں کو سوات سے چلے جانا چاہیے کیونکہ بقول ان کے اس سے امن معاہدے کی خلاف ورزی ہو رہی۔ اس اعلان کے بعد سول اور سیشن کورٹس کے جج مخمصے کا شکار ہوگئے ہیں

http://www.bbc.co.uk/urdu/pakistan/2009/03/090318_swat_courts_uk.shtml

Also read:

Who will lead a Long March to Swat? Civil judges barred from attending courts by Sufi Muhammad

Zubeida Mustafa: The task before Justice Chaudhry

Life after the Long March