The reinstatement of the Chief Justice of the Pakistan Supreme Court, Iftikhar Muhammad Chaudhry on March 16, 2009, through an executive order of the Prime Minister, brought to closure a two-year struggle by the country's lawyers and leading political parties. As the people celebrated the extraordinary turn of events, there were many who began to contemplate the future of the Judiciary in Pakistan. There were questions as to what the Chief Justice would do once he was back on the bench, since having been restored by the power of a popular movement, he could be encouraged to further shake things up. Justice Iftikhar Chaudhry had earlier won commendation for having worked hard to clear a backlog of cases at the Supreme Court and for taking on politically controversial issues, but some lawyers also complained that he rushed cases through and ordered lawyers and government officials around. His landmark judgment that blocked the privatization of the Pakistan Steel Mills infuriated Prime Minister Shaukat Aziz. And then he took on the military over the case of the missing persons. In this backdrop, there are a number of questions bothering people's minds. Has the Pakistani judicial system won genuine freedom after the reinstatement of Justice Iftikhar Chaudhry and other judges? Are the judges now at liberty to hand out independent judgments, free of any government or political influence? What if someone challenged the National Reconciliation Ordinance or the case of the missing persons became alive again? Justice Iftikhar Chaudhry has also set quite a record of launching suo moto cases. Will he do so again and with as much alacrity? Will he take swift and positive action to remove the blot of corruption from the face of the judicial system and the legal profession and establish true independence of the judiciary? And, above all, should the people now rest easy, content in the thought that their fundamental right to receive justice will be well-protected? Everything is not as hunky dory as would have been expected. In fact, within a couple of days of the restoration announcement, there were indications that the lawyers had, in effect, not left the streets and that they could again resort to their newly found weapon of activism should they feel the need to do so. This again presented the unpleasant prospect of lawyers remaining away from the courts and people running from pillar to post for their myriad legal needs. The country also found its constitutional experts bickering over the very legitimacy of restoring the sacked judges through an executive order by the Prime Minister of Pakistan. Some were of the view that the step was in contradiction of an earlier Supreme Court (SC) ruling on judges who refused to take oath under the PCO; some called the Supreme Court ruling 'illegal'. One former federal law minister, S.M. Masood, even went to the extent of saying that all the steps taken in the judicial crisis - from General Pervez Musharraf's to Asif Ali Zardari's tenure - were in violation of the Constitution of Pakistan. He said judges could not be reinstated through an executive order, because of the complications created by the Supreme Court ruling. In his opinion, according to Article 199 and 200 of the Constitution, the judgment was binding on all institutions of the state and no one could negate its legality. Another legal expert and a prominent lawyer activist Hamid Khan said the judgment had no legal value at all. He said if PCO courts were unacceptable, a judgment delivered by them should not be accepted. He said the 'judges' who issued the judgment “should prove their legitimacy and then issue the judgment”. Advocate Fawad Hussain Chaudhry expressed the view that judges could not be restored without taking fresh oath. He said with the notification of restoration of judges, there would be several legal anomalies in the procedural course of the restoration. However, another lawyer, Azhar Hameed, felt the reinstatement was 'totally in line with the constitution'. In the midst of all this legal wrangling, the former president of the Supreme Court Bar Association and one of the most prominent leaders of the lawyers' movement, Chaudhry Aitzaz Ahsan warned top legal expert Sharifuddin Pirzada and former Attorney General Malik Qayyum against creating hurdles in the restoration of judges of the superior judiciary. He said he felt there was a conspiracy in the air to drag the restoration of deposed judges into legal complexity. He made it clear that in the event that someone tried to subvert the process, the lawyers were still in the streets and they would respond accordingly. The judicial system in Pakistan is regarded as one of the most corrupt institutions in the country - and one that takes ages to dispense justice, if at all, as cases remain pending in courts for decades on end. According to a research report, on an average 1,000 cases were pending per judge in the lower courts in Punjab and approximately 600 each in Sindh and NWFP. Balochistan had a better record with 45 cases pending per lower court judge on an average as most people in that province rely on local jirgas. Since the government spends less than one percent of its budget on the judiciary, there is an urgent need to reform the judicial system on an extensive basis, which would entail not only judicial reforms but prison reforms and police reforms as well. It is said that in the Punjab, panchayats (informal rural courts) are operating with the blessings of the local police, civil administration, feudal lords and politicians. In fact, the outdated panchayat system is flourishing as only a few people have access to formal courts because of the huge backlog of cases in courts. The vast majority of people who interact with members of the judicial system, whether judges or court clerks, encounter corruption at every step. The courts are regarded as a place where only the wealthy and influential people can afford to pay for and thereby obtain fair trial. Common people often find themselves forced to resort to informal dispute resolution through panchayats or jirgas rather than getting themselves involved with the official court system. Furthermore, as English is the official language in Pakistan's justice system, most people do not understand what is going on in the courts. They depend on advice from others to help them through a trial. Interestingly, corruption also flourishes among lawyers. In order to extract more money from litigants, lawyers sometimes provide advice to delay or prolong the case. In some instances, they take on cases that should have been dismissed from the outset. It is also true that the legislative and judicial branches of Pakistan have been repeatedly compromised by interference of the executive. Parliament has usually been bypassed in the formulation of laws and the higher courts of the judiciary have frequently been coaxed to pass politically motivated judgments. The procedure for selecting national level judges is required to be transparent by law but it is far from transparent in practice and the selection process is most often based on political favour. The judiciary is also reported to suffer from a lack of compliance in declaration of their own assets. Despite their alleged corruption, judges are exempt from investigation by the National Accountability Bureau (NAB). As such, members of the judiciary are not investigated, nor are they held accountable. It was in this background that Justice Iftikhar Chaudhry became the embodiment of the people's desire for change and for a fairer society. He delivered with tremendous impact before he was sacked. He had to suffer because he refused to cow down before a military strongman. Now that he is back on his job, questions have also been raised about his having become politicized on the grounds that his movement for reinstatement was run by politicians for their own ends and he allowed himself to be used as a pawn, instead of keeping himself aloof from the political posturing. In such circumstances, Justice Iftikhar Chaudhry will be under enormous pressure to deliver an independent judiciary after so many in the judicial profession have risked so much in the struggle for his reinstatement. Some quarters expect that Justice Chaudhry would open cases against both President Asif Ali Zardari and his predecessor, Pervez Musharraf, concerning their past deeds. However, one of the first issues he has to tackle is the position of judges appointed under President Musharraf and the ruling they gave to validate the General's imposition of emergency rule. Now that the courts in Pakistan have been dysfunctional for so long and the lawyers had no time for their clients these past two years, the people are looking up to Justice Iftikhar Chaudhry to stand up and protect their independence, to lead the silent revolution that would ensure that even the weaker sections of society have fair and easy access to justice. Is the Chief Justice ready?
Javed Ansari is a senior columnist with long experience in advertising and journalism. He was written in the past for The News International.
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