The New Nation - Internet Edition

Dr. M. S. Haq

It now appears (as of today - 04 May 2008) the demand side and the supply side of matters pertaining to the restoration of judiciary in Pakistan could involve or lead to or both: a number of inter-disciplinary and multi-dimensional considerations, consequences, and ramifications; in and ex-country implications, whether or not anticipated at this point in time; individual, national, global, and other interests, as applicable; risks and vulnerabilities in relevant areas; and opportunities and soft sides of various types and magnitudes; to mention a few.

The quality, quantity and cost of eventual decisions concerning those matters, the outcome of decisions at implementation and post implementation levels, the size of beneficiaries, the amount and sustainability of gains and losses as a result of those decisions, and other related factors could be instrumental in, among other things, shaping the future of Pakistan in pertinent areas, especially the country's judiciary at least in the foreseeable future.

The people of Pakistan will take shortly one of the crucial decisions (I mean, the final decision) in the country's life. Efforts are being underway at various local, national and other levels with the apparent expectation that above decision will bring about a win-win situation for all concerned in relevant areas, for example.

I believe the current efforts towards remedying problems of judges and judiciary (used in an appropriate sense) have involved already or will involve in the days ahead the consideration of factors such as:

one, the protection and maximization of comparative, competitive and other advantages of majority of Pakistanis (for example) and the country at a minimum cost (costs also include time), as well as loss and with bearable levels of tolerance in economic, non-economic and precedence creating areas - as applicable;

two, the identification, establishment and prioritization of critical components of matters associated with judges and judiciary, and intensification of efforts towards dealing with those components in the best and overall interest of Pakistan, given the country's present day contextual and other premises, as well as limitations;

three, attracting and harnessing support and cooperation (as far as possible) of both existing and affected judges including inter alia the deposed chief judge and the present chief judge in pursuits of a satisfactory resolution of the problem and the subsequent implementation of solutions to the problem;

four, possibilities such as - phase-wise, time bound and conditional or non-conditional (or a mixture of both) implementation of resultant decisions on judiciary against the backdrop of a solid, as well as workable monitoring, feedback and course correction regime - a review of the country's constitution in areas to be agreed by and between at least all political parties in the parliaments and in the senate; and

five, making the eventual decisions as national decisions and not party or institutional decisions or a mixture of both - those decisions should be inter alia a people's product made up of maximum possible involvement of all concerned - for example, people of Pakistan, president Musharraf, friends of Pakistan and others, as appropriate.

Pakistanis might wish to consider choices of following nature in connection with matters of judges and judiciary - relative to intervening and other variables, though and as appropriate:

1. Restore the judges under the authority of parliament unless any of them do not want his restoration;

2. Retain all existing judges under the authority of parliament, unless any of them do not want to continue;

3. Re-fix the number of judges under the authority of parliament - could be a one time affair or otherwise;

4. Maintain the seniority of judges in a proper manner;

5. Resolve the cases of chief judges on the bases of for example - seniority, incentives facilitating say, voluntary retirement, negotiated settlements, the doctrine of necessity, 'termination' of both the chief judges in the country's best interest, and job change;

6. Grant, in the overall national interest and under the authority of parliament, immunities to deserving functionaries, institutions and concerned others - who have derived benefits from or have been deriving benefits from or affected otherwise in a pertinent way by relevant PCOs including inter alia NRO - from legal, constitutional and other cases or complications or both that have arisen out of or could arise out of (or both) above PCOs and matters connected with, and ancillary to, those PCOs, per se.

In that respect, a special purpose vehicle for one time use could be required - an indemnity bill leading to an Act, passed (to be) by the parliament, per se. Opinion-s or piece-s of advice of for example, Supreme court of Pakistan in pertinent areas could, as appropriate, be sought in the course of handling above matters;

7. Ensure that no in-country court of law will have jurisdictions including inter alia notional jurisdictions to deal with matters covered by the Act;

8. Review the country's constitution against the backdrop of for example, changed circumstances of Pakistan, changing behaviors of neighbors, regions and the world at large, and changing modes of competition for survival, living and continuity in increasingly uncertain and progressively interdependent environments. Pakistanis might wish to consider a constitutional review with a view to for example, (i) ensuring, sustaining and promoting a more pro-people, more result-generative and more sustainable sharing of power between and among the three main pillars of government-that is, legislative, executive and judiciary, between and among federal government, provincial government and local government, between presidency and parliament, between and among ruling party-ies and opposition party-ies in the parliament; and between and among various actors (including inter alia president of Pakistan and armed forces of Pakistan) during emergencies beyond the control of parliament - we should be more realistic while internalizing the present day limitations of parliament in democratically starved countries, per se, (ii) strengthening guiding principles in pursuits of a modern, competitive, accessible, acceptable to all concerned - as far as practicable, meaningfully independent, cost sensitive and cost effective, constantly dynamic - as required, and continually progressive judiciary (used in a wider sense), and (iii) making, as appropriate, the constitution of Pakistan and institutions of Pakistan more responsive, more result facilitative, more result creative, more transparent, more innovative and more accountable when it comes to progress and prosperity of say, Pakistan and Pakistanis on a continuing basis; and

9. Design and implement measures for damage control in pertinent areas.

Given the nature and scope of challenges and opportunities associated with restoration of judiciary against the backdrop of a broader framework of judicial reform and the amount of time available to the present government, it is expected people and government of Pakistan will deal with reform matters on the basis of a short to medium term reform strategy and in a timely and satisfactory fashion.

The last word: efforts of PPP towards dealing with above matters have so far been and on an average sense found to be matured, objective, professional, practical, contextually relevant, politically intelligent and emotionally less charged. It is expected the outcome relating to matters of judiciary will set an example for other countries to follow in relevant areas. Let us hope for best. By the way, Pakistan cannot and should not afford to spend, in an unproductive manner, much of it present time and effort in above matters because poor people of Pakistan are, among others and at present, in dire need of food, shelter and other basic amenities of life.