RESTORING THE JUDICIARY

C O N F I D E N T I A L SECTION 01 OF 02 ISLAMABAD 001015

SIPDIS

SIPDIS

E.O. 12958: DECL: 03/06/2018
TAGS: PREL PGOV PHUM PK
SUBJECT: RESTORING THE JUDICIARY

REF: LAHORE 115 ISLAMABAD 832 ISLAMABAD 671

Classified By: Anne W. Patterson, for reasons 1.4 (b)(d)


1. (C) Summary. Whether or how to restore the judges
ousted by President Musharraf under the November 3
Provisional Constitutional Order (PCO) is a key issue in
coalition negotiations between Asif Zardari's Pakistan
People's Party (PPP) and Nawaz Sharif's Pakistan Muslim
League-N (PML-N) party. It may also be the first divisive
issue faced by Pakistan's new National Assembly. How the
issue is resolved could directly affect President Musharraf's
ability to remain in office. End summary.


2. (C) Ambassador and Polcouns met March 5 with former
Supreme Court Justice Tariq Mahmood. Mahmood had been under
arrest/detention from November 3 until March 2. Mahmood said
that he was never charged but had been under "preventive
detention," allegedly because he had been former Chief
Justice Iftikhar Chaudhry's lawyer and had helped Aitzaz
Ahsan organize Chaudhry's rallies across the country in 2007.
Mahmood has remained active in the lawyers' movement and,
although he has no party affiliation, recently met with
Zardari and PML-N members to discuss the quandary of how to
restore the deposed judiciary.


3. (C) Mahmood, echoing the views of many in the legal
community, outlined to Ambassador what he believes should
happen when the new National Assembly convenes (probably next
week). First, he asserted that Musharraf's re-election was
invalid because Musharraf was ineligible to be a candidate;
as proof, Mahmood cited the constitutional amendments that
Musharraf promulgated under the PCO affirming his eligibility
to be elected by the prior assemblies and asserting he could
run for President while still Chief of Army Staff. Mahmood
said that Musharraf did not have legal authority to
unilaterally amend the constitution. The fact that Musharraf
bothered to sign these extra-constitutional amendments was
proof, alleged Mahmood, that Musharraf knew he was ineligible
for re-election under existing law.


4. (C) Mahmood did not say that Musharraf should be
impeached (which would require a two-thirds majority of a
joint sitting of the National Assembly and the Senate),nor
did he advocate restoration of the judiciary through passage
of a constitutional amendment (which would require a
two-thirds majority in both the National Assembly and the
Senate). Rather, he said that it would require only a simple
majority vote in the National Assembly to invalidate the PCO.
This would reinstate the judges, who had already ruled
Musharraf as ineligible to run for re-election.


5. (C) Ambassador asked how reinstatement would work as a
practical matter. Mahmood said that there were five Supreme
Court judges who had been on the bench before the PCO; these
could stay. The 10-11 others added under the PCO could
return to the provincial high courts (where most came from)
or retire with pensions. There were enough unfilled
vacancies on the provincial courts to absorb these numbers;
for example, the Lahore court had only 30 judges now but was
authorized to have 50 judges.


6. (C) Ambassador asked if former Chief Justice Chaudhry
would consider taking another posting, perhaps in an
international fora, as a way to avoid a confrontation.
Mahmood insisted that Chaudhry be reinstated as a matter of
principle. Asked what Chaudhry would do if he were released
today, Mahmood said he was not sure, but it was possible that
Chaudhry would return to the Supreme Court and try to re-take
his seat. Mahmood admitted this would be a real
embarrassment for the new coalition government.


7. (C) Mahmood agreed that Pakistan needed new procedures
for choosing judges and said he supported the proposals
outlined in the PPP/PML-N Charter of Democracies for creating
a judiciary independent of the President or the Prime
Minister. But, he repeated, first the deposed judiciary must
be restored.


8. (C) Ambassador noted that Musharraf often made a
credible argument that the Supreme Court had improperly
reinstated Chaudhry without waiting for a review by the
Supreme Judicial Council, the body that handled disciplinary

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and suitability issues for senior judges. Mahmood agreed
that this Council is the forum that should rule on
improprieties in judicial behavior. But, he said, a
uniformed Musharraf had called Chaudhry in and ordered him to
resign; only then did he refer a case against Chaudhry to the
Council. So, Musharraf had not followed proper procedures.


9. (C) Mahmood confirmed that he (along with human rights
advocate Asma Jehangir and others) had met with Zardari and
PML-N representatives to discuss the way forward. Confirming
other reports (reftels),he said Nawaz Sharif wanted
restoration of the judiciary as the first agenda item for the
new Assembly. Zardari wanted to refer the issue to a
parliamentary committee. The lawyers' movement was adamant
that the judiciary be restored, and Mahmood warned that
delaying consideration of the issue would endanger the new
coalition. He said he told both political parties this issue
needed to be addressed immediately because Pakistan could not
afford for the next government to collapse within months.
"We need five years of steady governance," asserted Mahmood.


10. (C) Comment: Zardari does not want to restore Chaudhry
to the Supreme Court bench and is satisfied with Chief
Justice Dogar, who recently dismissed challenges to the
National Reconciliation Order that gave Zardari and other
politicians immunity from prosecution. The PPP continues to
say that it will refer restoration of the judiciary to the
parliament and claims they have a deal with PML-N to that
effect. But the coalition remains shaky and, with or without
Nawaz in the coalition, Zardari faces the difficult prospect
of civil society demonstrations on this issue against his
populist government. In or out of government, Nawaz may have
the power to bring the PCO to a vote on the Assembly floor.
The only way out may be temporary reinstatement of Chaudhry
before he is moved on to another position. Whether Zardari
can manage this maneuver without the judiciary ruling against
Musharraf remains to be seen.

PATTERSON