RESTORATION OF CHIEF JUSTICE AND JUDGES OF PAKISTAN SOLVABLE WITHOUT CONFLICT

Justice Rajindar Sachar,
Chief Justice (Retd.) High Court of Delhi

India watched with satisfaction the return of democracy in Pakistan . But one is now finding a speck of cloud, namely the question of restoration of judges removed by President Musharaff. It cannot be denied that the question of restoration of judges to their original position was the very rationale of the whole movement initiated by lawyers of Pakistan and joined by the vast multitude of people. It is not a question of esteem and respect for each judge including that of Chief Justice. The principle is the bigger one of supremacy of rule of law namely “however high you may be, the law is above you.”

In India we passed through this delicate stage during emergency period from June 1975 to March 1977. Kuldip Nayar, the veteran journalist was detained for his protest. His habeas corpus petition was allowed by a Division Bench of Delhi High Court in 1975. The Government took umbrage. It transferred one of the judges who were permanent to northeast as a penal act – similar numbers of judges whom the then Indira Gandhi Government considered as too independent were transferred to other High Courts. The other judge (in Kuldip Nayar case) was Justice R.N.A, who was a promotee from District judge. He was still additional judge. Though two other colleagues junior to him were made permanent Judges of High Court. Justice R.N.A was reverted as District judge in late 1975. When elections took place in March 1977, opposition Janata Party won and formed the Government with Morarji Desai as Prime Minister.

The election manifesto of Janata p arty had promised that it will undo the injustice done to the judges, and will retransfer them and restore them to their pre-emergency position. So all judges were transferred back to their original High Courts, not withstanding that in some High Courts, some lawyers opposed it. On similar principle Justice R.N.A. was promoted as High Court Judge, Delhi in 1977, from where he had been reverted in 1975. The manifesto of Janata p arty to restore the victims of emergency to their original position required that Justice R.N.A. be restored to his original seniority. The Government accordingly passed simultaneous order promoting Justice R.N.A. as permanent Judge of High Court, Delhi and also restoring his seniority and placing him above two judges who though junior to him had been made permanent during emergency in 1975. Thus the gap of two years did not stand in the way of justice being done to Justice R.N.A. and restoring his original seniority.

It also needs to be emphasized that none of the judges protested at Justice R.N.A. being given his original seniority. One was the realization that in the changed atmosphere, for those juniors to protest at being placed at their original seniority – would have been resented by people at large. For same reason I can see no difficulty in just passing earlier an executive order or Parliamentary resolution of reappointment of all judges removed by President Musharaff and a further direction that the seniority will be as it was at the time of their removal or resignation. I have no doubt that all judges will see basic sense of justice and give their consent readily – after all judges do not live in ivory tower, and naturally would not like a situation of unnecessary conflict with the peoples representatives.

Indian Supreme Court (Chandrachud, J. including) in 1976 had given a shameful decision upholding the right of Government to impose emergency and also to suspend right to life and habeas corpus. The general elections in 1978 brought the erst while opposition Janata p arty to power but it did not want to appoint Chandrachud, the senior most Judge of Supreme Court as Chief Justice of India because of said judgment. But many of us, (though extremely critical of Chandrachud's decision) still felt that supersession would not be conducive for the independence of judiciary – so Morarji Desai, let it be said to his credit, listened to this reasoning and appointed Chandrachud as Chief Justice of India. Thus Moraraji Desai executive (read Musharaff) did not go on bearing a grudge that Justice Chandrachud (read Chief Justice Chaudhry) had decided against him or apprehended that there was danger of Chandrachud deciding against Morarji on personal grounds in future. So the storm blew over – Chandrachud Court went on doing its duty according to its conscience and similarly Morarji Government continued on its path without unnecessarily being needled by Supreme Court.

A cloud of fire on. Indian democracy blew over and democracy was back on the rails - all because of mature behaviour and broader view being taken by both political leaders and judges. I have no manner of doubt that Pakistan judiciary which has similar judicial temper and traditions will also act in that restrained atmosphere and the present uncertainty will immediately blow over.

One of the alternatives being mentioned in the press of Pakistanis to create two Supreme Courts one called the Constitutional Court headed by existing Chief Justice and the other dealing with civil and criminal matters headed by Chief Justice Chaudhry. In my opinion this alternative is worse than the disease. First the splitting up of Apex Court into two courts is unworkable in a federal Constitution like that of Pakistan . We, in India pondered over it for years and have discarded the idea as unworkable and unnecessarily cumbersome. Also the suggestion that Chief Justice Chaudhry should not head the Constitutional Court but civil and criminal court will rightly be unacceptable to Chief Justice Chaudhry and Bar and public and it will create further strain and complications.

I hope this matter of the Chief Justice and Judges of Pakistan will be immediately and amicably sorted out so that the new Government can proceed to act on various important matters concerning the people of Pakistan and also especially to take immediate steps to work out a stable, permanent, friendly relationship between India and Pakistan.