The Pakistan Muslim League-Nawaz (PML-N), which has so far been a great champion of the restoration of the judiciary through parliament, is considering the option of a Chief Justice Iftikhar Muhammad Chaudhry-specific constitutional amendment, slashing his tenure from June 2013 to 2010.
Though no decision has been taken by the party leadership as yet on this highly controversial issue, there are certain PML-N leaders arguing that this compromise solution is being deliberated upon to save the PPP-PML-N coalition. The PPP leadership is adamant that it would not allow Justice Iftikhar Chaudhry to continue till June 2013.
The PML-N finds itself in a tight corner as it is being made to concede to slashing the tenure of the deposed chief justice in exchange for the PPP’s willingness to table the resolution in the National Assembly for the restoration of the deposed judges to their Nov 2, 2007 position.
Interestingly tenures of judges of the superior judiciary are not fixed either in Britain or India whereas in the United States the judges of the Supreme Court and those of the federal courts are appointed for life. However, there is a tradition in the United States where superior judiciary judges get voluntary retirement when they reach the age of 70-75.
If finally approved and agreed between the two parties, the PML-N might consider this formula a “compromise” to achieve the greater goal of the judges’ restoration and to save the PPP-PML-N-ANP coalition from possible demise. However, it is believed that such a solution might not be acceptable to the lawyers’ fraternity and the civil society, which had struggled relentlessly after March 9, 2007 for the cause of the independence of the judiciary.
While Asif Ali Zardari is also facing a great fall in his overall popularity among these quarters after dithering on his commitment to restore the judges within 30 days of the formation of the federal government, there is a realisation within the PML-N that the fate of Nawaz Sharif and his party could also be no different if such a compromise solution is reached. Perhaps, it would be more damaging in the case of the PML-N.
A party source believed that getting the PML-N to back off from its clear stance on the judges’ issue might be a trap set by the PPP to politically damage the Nawaz-League, which has so far been attaining more and more popularity for speaking out on the judges’ issue. The PML-N was the only political party which had contested the Feb 18 elections on the slogan of getting the deposed judges restored.
As in the world’s leading democracies, Pakistan has traditionally been setting the maximum age limit for the retirement of the superior judiciary judges without fixing any tenure for the chief justices of the Supreme Court or high courts. However, it was only during the government of Zulfikar Ali Bhutto when, in 1976, a constitutional amendment was passed to fix the tenure of the high court chief justices to four years and that of the chief justice of Pakistan to five years.
Bhutto got this amendment through because he was not happy with the then chief justices of the Lahore High Court Justice Sardar Muhammad Iqbal and the Peshawar High Court Justice Justice Safdar Shah. In the case of Justice Safdar Shah, Bhutto got annoyed after this highly respected judge had dismissed from service political appointees in the police department besides accepting bail of some workers of the then National Awami Party, now Awami National Party.
These constitutional amendments were undone by the martial law of General Ziaul Haq, who reverted to the system of getting the judges, including the chief justices, retired on their set age of retirement.
The retirement age for high court judges remained 62 years whereas in the case of the Supreme Court it has been 65. In his legal framework order, Musharraf had enhanced the retirement age of SC judges to 68 and that of the HC judges to 65 but the 17th Constitutional Amendment reverted to the original retirement age.
In a strange coincidence, it is almost after 32 years of not so appreciable 6th Amendment of Zulfikar Ali Bhutto that his son-in-law, Asif Zardari, is determined to introduce a person-specific constitutional amendment targeting Justice Iftikhar Chaudhry. Pakistan’s irony is that the Constitution has been repeatedly amended to the advantage or disadvantage of personalities instead of strengthening the system and institutions.
Justice Iftikhar Chaudhry has given a new hope for the independence of the judiciary in the country. Because of what he did on March 9 and later on Nov 3 and for the kind of decisions the Supreme Court handed down during his tenure as chief justice, he has become a symbol of the independence of the judiciary. Cutting his tenure only because a powerful soul is allergic to him would mean making a mockery of the dreams of the people of Pakistan.
End note: It is clear from the outset that the PPP has been ambiguous on this issue since time immemorial. The people of Pakistan must take a clear stand whether they want an independent proactive judiciary, a key founding pillar of a strong and progressive democracy which is ready to deliver speedy justice and keep the executive in check or a mock judiciary as we have seen in the past. It is all about do we still want to live in the regressive past or move ahead towards a brighter and progressive future.