By Dr Tariq Rahman

DESPITE declarations and promises it is not quite clear whether or not Chief Justice Iftikhar Chaudhry and his fellow judges, who did not take the oath under the PCO of Nov 3, 2007, will be restored to their Nov 2 position.

Is this an important issue? Some people point to power and food shortages as well as the deteriorating law and order situation to make the point that the judiciary is not our real problem; that it is a pseudo-issue; and that, if at all it is a problem, it affects educated people and not the masses.

This view is simplistic. The restoration of the judiciary would mean that the powerful establishment, despite its tremendous power, has lost to the will of the democratic forces represented by the judges, lawyers, the press, students and members of civil society. If these forces win, it will be possible to assert the power of civil society over the ruling elite.

This means that decisions which have drained our resources, made us follow aggressive policies and facilitated the exploitation of the citizens and the resources of the state, will be questioned and even reversed. This, in turn, means better governance, more food, more power generation and better distribution of resources resulting in less poverty, better policing and better education for the citizens.

What exactly did Justice Chaudhry do? He said ‘no’ to a military ruler in 2007. No sitting chief justice has said such a resounding ‘no’ to a sitting military ruler in this country’s history. Indeed, they all either gave judicial recognition to usurpers or, if they were unusually brave, they resigned from their posts quietly and went ‘gently into the night’. Those who disagreed with military rulers and chose to be dismissed from service rather than take the oath under the PCO went ‘gently’ — as the poet Dylan Thomas would have it — because they themselves did not protest against the highhandedness of the executive.

But how could they? Judges usually speak through their judgments and they do not normally lead movements. This time, by sheer good luck, Chief Justice Chaudhry became the focus of a movement. While no judge had became an icon of anti-establishment forces this judge did. In short, while there have been brave and principled judges in the past, the public has unfortunately remained indifferent to them. This is our collective bad luck, but such are the facts.

So, now that the present dismissed judiciary is widely seen by the public as having been wrongly and unjustly dismissed in the first place, it is a public demand — vox populi — to restore it to its former position. This is something the public voted for in addition to good governance, of course, when they voted for the PML-N as well as the PPP. It is part of the mandate and if it does not happen, it will be tantamount to disregarding the people’s will.

Secondly, if the restoration does not take place the message that will go out to the public is that if anyone defies the establishment and has the courage to stand up to its most powerful representatives, then he or she will not be allowed to survive in the system. This is just the kind of message authoritarian power-wielders convey. And when this happens the courts become subservient and nobody can hope to get justice in cases where the establishment is involved.

Our courts have been subservient in the past and both the PML-N and the PPP have suffered on account of this. Whenever their governments were dismissed by the army or an overbearing president, the courts were too cowed to give them justice. Now there is a chance that a new kind of judiciary will provide justice. The question to all thinking citizens is whether this new-found courage and confidence should be squandered for petty, short-term gains?

But what does one mean by ‘restoration’? The answer is that ‘restoration’ refers to the powers and composition and terms of the office of the superior judiciary on Nov 2, 2007. Thus, if the judiciary is restored but its powers are diluted — by reducing the term of office of the chief justice or curtailing his powers to take suo motu action or composing benches etc — then that is not ‘restoration’. That would mean, once again, that bravery and independence are punished in Pakistan. It will be almost like not restoring the judiciary at all.

Similarly, if the judges who were sworn in under the PCO are also allowed to function, it will mean that standing up for principles and betraying them both get rewarded. Moreover, it will also dilute the powers of the independent judiciary because these PCO judges will influence the decisions of the non-PCO judges. This too will give the wrong message.

In short, there is only one way of restoring the judges, i.e. going back to the Nov 2 position. This has the important symbolic effect of negating the extra-constitutional actions of General Musharraf. These illegal actions of Nov 3 should be called clearly what they were — unconstitutional and, hence, null and void. Indeed, it is the only step which will give the PPP and the PML-N a good name. It will strengthen democracy and it will make the judiciary independent at least for the time being.

Maybe, this will also create a precedent for future judges. Maybe, one day we will have judges who, unlike Justice Munir, will declare acts of dictators null and void. Maybe, some day the PPP is again confronted with tanks on the lawns of the prime minister’s house — maybe, if this is the condition it will look up to a supreme court which will have judges who strike down the martial law and, declaring some future general’s action illegal, restore the prime minister. If this had happened when Ghulam Mohammad first dismissed the Constituent Assembly Pakistan would not have come to such a pass.

If the judges are restored now, we Pakistanis will be able to look back to 2008 as the year when — among all kinds of crises and shortages — we rewarded brave people for their bravery. We need a moment of glory. I hope we are not cheated of it.