The Federal Law minister, Farooq H. Naek, while talking to the media said that, The (previously dismissed) judges were welcome to resume their responsibilities. They only had to take a fresh oath under the Third Schedule of the Constitution to resume their responsibilities. He added that the seniority of such judges would not be affected.
The government has taken this new approach after it failed to quiet the lawyers movement advocating the restoration of the sacked judges. In its strategy, The government also failed to get approval for their proposed constitutional package from different political parties, including its own coalition partners, for the reinstatement of deposed judiciary who were removed from their positions after the imposition of the state of emergency on November 3, 2007.
On the issue of restoration of sacked judiciary, the government of Prime Minister Yousaf Raza Gillani, previously emphasized that judges could only be restored through a constitutional package and that it is not possible to restore them through a resolution in the national assembly as this would be unconstitutional. The law minister himself stated that to do away with an unconstitutional action by unconstitutional methods could not be done.
However, in the latest development, the law minister has stated he is ready to reinstate any deposed judge (without any constitutional amendment) provided that judges take a fresh oath. He also offered a further incentive to deposed judges that if they take fresh oaths their seniority would be restored. The question of constitutionality appears to no longer be a question before the government in order to restore the deposed judiciary. This would appear to indicate that the government wants the loyalty of the judges so that the judiciary does not overplay its constitutional responsibilities.
This governments flip-flopping on the issue of restitution of judiciary is even worse than that of the previous government of President Musharraf. President Musharraf at the very least made it clear that he would never tolerate an independent judiciary under the leadership of (deposed) chief justice Mr. Iftekhar Choudhry. It was however a major campaign promise of the newly elected coalition government to restore the judiciary within 30 days of its formation through a resolution in the national assembly. They then stated that the deposed judiciary would be restored through a constitutional package. Now, the government has come out with a back door approach, promising that everything will return to normality, but only if and when the deposed judges demonstrate their loyalty.
The governments new policy for the restoration of deposed judiciary is nothing less than that of the colonial rulers and dictatorships before them, where loyalty was the prime concern, not a constitutional basis to the rule of law. The government has been working since its first day on the minus one formulation, that is to have deposed judiciary returned without Chief Justice Mr. Iftekhar Choudhry and anyone else who might want an independent judiciary. A way of divide and rule is being applied by the government, which was elected by masses on its promise to restore the deposed judges and do away all the amendments made to the constitution during the state of emergency imposed by the chief of army staff on November 2007.
The government should know that this policy can not solve the constitutional, legal and judicial issues at stake. A great understanding of the rule of law, independent judiciary and governance through constitutionalism is required by the newly elected members other wise it would be difficult for the government to run the day to day issues of the country with credibility. There is also a need to understand the strength and viability of the lawyers movement, which highlights the strong desire for democracy and rule of law in the country. If the government tries to thwart the struggle the lawyers movement by forcing its prejudices then it will find it difficult to survive against the powerful establishment of Pakistan, which always prefers the rule of an autocratic government.
