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No easy closures in Pakistan

In retrospect, it seems that the restoration of Ifthikar Chaudhary as chief justice of Pakistan may have been the easy part, even though it took more than 16 months of an unrelenting movement by lawyers and the country’s civil society, and may not have succeeded but for the final push by the opposition leader Nawaz Sharif.

Now what awaits Mr. Chaudhary, who reclaimed his office on Sunday, is the mother of all constitutional tangles, a poisoned inheritance left to the nation by the former president, Pervez Musharraf. One view is that Mr. Chaudhary must move on and not rake up the past in the interests of the country’s political stability. But there is also a vocal section of opinion-makers that the only way the country can move ahead is by disentangling the mess.

A basic question facing the reinstalled chief justice is to determine if the Supreme Court has reverted back to the day before his ouster — November 3, 2007 — or is it to continue seamlessly from March 21, 2009, when his Musharraf-appointed successor, Abdul Hameed Dogar, retired.

The principle on which the lawyers’ struggle was based all this time was that Mr. Chaudhary never ceased being the chief justice, as the Emergency through which he was removed was illegal and unconstitutional. Therefore, they hold, his restoration – not reappointment or reinstatement — means the court has automatically reverted to its pre-November 3, 2007 status.

If that is true, hundreds of judgments by the “Dogar court”, as it was known, will stand invalidated at one stroke. Aitzaz Ahsan, the advocate who was in forefront of the lawyers’ struggle, is of the opinion that while the pre-emergency court stands restored with the restoration of Mr. Chaudhary, the doctrine of “past and closed transactions” must be applied to protect the decisions of the post-emergency court.

That would mean also validating the Dogar court’s decision upholding the former President’s re-election in October 2007 while he was still the Army chief. The court also gave legal cover to a whole range of actions taken by Gen. Musharraf at the proclamation of Emergency and after, including constitutional amendments protecting his post-Emergency actions. It also the infamous National Reconciliation Ordinance, through which the late Benazir Bhutto and her husband Asif Ali Zardari were sanitised of the corruption charges against them.

The court also upheld the November 3, 2007 Emergency, the provisional constitutional order of the same day, and the Judges Oath order, which General (retd) Musharraf used to purge the court of judges who refused to be sworn in under the PCO.

Accepting these decisions would, by implication, mean Mr. Chaudhary’s acceptance of his removal, and hence making his restoration by an executive order questionable. At the same time, revisiting these orders, especially the Emergency and the NRO, could trigger fresh political crises and uncertainty.

Mr. Chaudhary also faces the daunting task of determining the fate of his own court’s orders in its dying hours on that fateful November 2007 afternoon. As Gen. Musharraf proclaimed the Emergency, a seven-member bench of the Court headed by Mr. Chaudhary passed an order restraining the superior judges from taking oath under the PCO, and held that any new appointments to the judiciary would be illegal and “without jurisdiction”.

But dozens of judges have been appointed since then, some by the Musharraf regime and others by the Pakistan People’s Party-led government. In fact, many of the judges who refused to take oath under the PCO in 2007, broke ranks with the struggle for the restoration of the judiciary, and last year, accepted reappointments handed to them by the government. The government hoped to isolate Mr. Chaudhary in this way, but reckoned without his staying power and that of the lawyers.

There has been much speculation that Mr. Chaudhary’s comeback is part of a deal brokered by America and the Pakistan Army, and that this includes guarantees of his “good behaviour,” implying that he has promised to let bygones be bygones.

An immediate test of that may be the missing persons’ case. Mr. Chaudhary was hearing the cases of more than 300 people missing after they were allegedly picked up by Pakistan’s intelligence agencies as terror suspects. Their families suspect the intelligence agencies may have even sold some of these suspects for bounty money from American Central Intelligence Agency.

One of the justifications that Gen Musharraf made for the November 2007 emergency was the Supreme Court’s activism in this case. Mr. Chaudhary had by then managed to restore over a 100 missing people to their families. He had even threatened to summon the heads of intelligence agencies – Army chief Ashfaq Parvez Kayani was heading the ISI — and send them to jail if they did not provide satisfactory explanations.

On March 16, the day Mr. Chaudhary was restored, in the crowd celebrating outside his home was Amina Janjua, whose husband Masood Janjua has been missing since 2005. She has spearheaded an international campaign for her husband and for the others who are still missing.

When Mr. Chaudhary was ousted, he was specifically dealing with her husband’s case, but his successor buried the petitions. As she stood with a small bouquet for Mr. Chaudhary, Ms. Masood expressed confidence that Mr. Chaudhary would take up the hearings where he left off.

“He’s going to reopen those cases, and our near and dear ones will be back home soon,” she said.

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