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 ISLAMABAD 00001015 002 OF 002 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