A Solution to Pakistan’s Judicial Crises

We have heard of too many problems, challenges and crises. Here are a set of credible and do-able solutions by Shaheryar Azhar.  Only if someone is listening. Raza Rumi

In an eternal echo reminiscent of Pakistan’s genesis, we have repeatedly abandoned our personal responsibility in addressing our fundamental issues of nationhood and governance at critical junctures of our history. Do we always need a foreign power to yank us out of our fantasies into reality and thus come to our so-called rescue?

Long before America mid-wived the famous or infamous (depending on your point of view) deal between General Musharraf and PPP Chairperson Benazir Bhuto, this moderator and some others had argued repeatedly on the following lines: “It does not take a rocket scientist to figure it out that if the largest political party (PPP) and the most powerful national institution (Army) can not see eye-to-eye on the most pressing issues, Pakistan can never be stable”. And yet, it took two years of painful negotiation with a lot of hand holding by America, Britain, Saudi Arabia and Abu Dhabi for what? For Pakistan to resolve its domestic issue of internal transfer of power with the help of foreign friends. Can anything be more embarrassing than that? Once is fine, twice is too many and thrice must be curtains for any self-respecting nation!

What they say about dealing with hunger (better to teach a hungry man how to fish than give him a free fish) applies to Pakistan too but with a twist. We – all of us – will have to learn the art of politics on our own as we lay dying from hunger than allow ourselves to be force-fed by foreigners. After all, it doesn’t take a rocket scientist to figure out what a compromise looks like. To children it always looks ugly, hence always unacceptable as they never stop throwing their tantrums (“But why???” “It is sooo unfair!!!” so on and so forth)  but to adults compromise is the very art of living, not just of politics, because they know the hellish consequences of ignoring it.

One doesn’t need then to be very smart, just grown-up, to figure it out that there are a host of solutions to the present crippling judicial crises if we put our heads together. Compromises that deny all parties their maximalist position and yet are a win-win for all, particularly for the people of Pakistan.

Here is one:

1.    Upon retirement of Chief Justice Dogar on March 21, a Chief Justice acceptable to all three parties: PML(N), PPP and Pakistan Supreme Bar Association, other than CJ Chaudhry, is selected as a replacement (see also point # 4 below).

2.    Laying the foundation of institutionalizing independence of judiciary within three months by agreeing to the modalities to implement the provision as laid out in the Charter of Democracy (direct quote from the Charter as reported in DAWN of May 16, 2006 is as following):

Charter of Democracy on Judiciary:

Quote: 3. (a) The recommendations for appointment of judges to superior judiciary shall be formulated through a commission, which shall comprise of the following: i. The chairman shall be a chief justice, who has never previously taken oath under the PCO.

ii. The members of the commission shall be the chief justices of the provincial high courts who have not taken oath under the PCO, failing which the senior most judge of that high court who has not taken oath shall be the member

iii. Vice-Chairmen of Pakistan and Vice-Chairmen of Provincial Bar Association with respect to the appointment of judges to their concerned province

iv. President of Supreme Court Bar Association

v. Presidents of High Court Bar Associations of Karachi, Lahore, Peshawar, and Quetta with respect to the appointment of judges to their concerned province

vi. Federal Minister for Law and Justice

vii. Attorney General of Pakistan

(a-i) The commission shall forward a panel of three names for each vacancy to the prime minister, who shall forward one name for confirmation to joint parliamentary committee for confirmation of the nomination through a transparent public hearing process.

(a-ii) The joint parliamentary committee shall comprise of 50 per cent members from the treasury benches and the remaining 50 per cent from opposition parties based on their strength in the parliament nominated by respective parliamentary leaders.

(b) No judge shall take oath under any Provisional Constitutional Order or any other oath that is contradictory to the exact language of the original oath prescribed in the Constitution of 1973.

(c) Administrative mechanism will be instituted for the prevention of misconduct, implementation of code of ethics, and removal of judges on such charges brought to its attention by any citizen through the proposed commission for appointment of Judges. (d) All special courts including anti-terrorism and accountability courts shall be abolished and such cases be tried in ordinary courts. Further to create a set of rules and procedures whereby, the arbitrary powers of the chief justices over the assignment of cases to various judges and the transfer of judges to various benches such powers shall be exercised by the Chief Justice and two senior most judges sitting together. Unquote.

3.    Immediate repeal of the 17th Constitutional Amendment and its replacement with a provision acceptable to a two-thirds majority of the Parliament. Fundamentally, the purpose here is to reduce the powers of the President by restoring the balance in favor of the Prime Minister.

4.    Conferring the highest civilian award on Chief Justice Chaudhry and elevating him either to the position of the Chief Election Commissioner with the specific charge to hold the next General Elections or as Ambassador-at-Large or to Head a Constitutional Commission (or finding another high-honor appointment) with full pay, a government bungalow and personal security until his normal retirement age in 20013.

5.    Passing an act of Parliament declaring both Sharif brothers eligible to hold elective office.

6.    Calling in the Punjab Assembly and having them choose freely their Leader of the House (Chief Minister).

There is no Richard Holbrook (or America) around to read the riot act to the childish Miloseviks of Pakistan, who refuse to see the writing on the wall. If we can’t understand the reality of our own precarious situation, then even Pakistan’s omnipresent God will not help.

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