The matter of the new judiciary that was hired by the de facto Federal authorities under the directions of Musharraf as COAS after the coup of November 3, has now become a crisis ridden issue of national and international gravity. As such this matter per se requires a realistic legal analysis in the context of relevant rules of constitutionalism. The high political significance of this issue is so compelling that most Western friends of Pakistan now openly assert to resolve this lingering issue of the restoration of judiciary for the general welfare of the country. Secretary Rice said that this particular matter is threatening the two major components of the Coalition. The top UN Human Rights official called on the Pakistani government this weekend to swiftly resolve its judicial crisis. "What ever solution is found it should ensure the country has "a free and independent judiciary," she said. With the refusal of over 60 plus judges of the superior judiciary, including the four high courts and the 13 of the Supreme Court (SC) to accept that patently unconstitutional and illegal action of the then COAS, ironically admitted by him as much, through which the disbanding of the country's judicial branch took place, the remaining few who accepted the "new" position were thus also by necessary legal implication starting afresh. It is thus clear beyond any credible jurisprudential doubt that the PCO judges constitute the "new" judicial structure created by the disastrous decisions of the president. That they remain a product of a de facto dispensation phenomenon is utterly and emphatically self-evident. It is manifest that normally the judiciary is the custodian of the constitution. A statement to this effect is echoed many times in memorable judicial judgements of many superior courts of many countries including our own. Thus the moral and jurisprudential predicament of the new justices referred to as the PCO judges is beyond cavil. Rather than to hold the then situation as unlawful, it was the contrary course that was adopted by the new judicial branch of the state. Not surprisingly it was opined in Tikka Iqbal's case that the coup was not illegal and hence basically not void to produce results; the incapability of such a legal order to provide the basis for any legally acceptable consequence was thus obviated. To hold otherwise would have, inter alia, rendered them functus officio as well. This glaring predicament was squarely faced by the Rhodesian High Court and the Privy Council in the leading Madzimbutto case and held as such but not so in Pakistan in the post November 3 situation by its newly inducted SC justices. Why it was so done in Pakistan on November 3 is now an old story; but that it has created an unparalleled terrible calamitous situation for the country is equally undeniable. As a result Pakistan is now according to the US press reports originating on June 24 2008, placed amongst the ten most dysfunctional states of the world by the independent American research organisation Foreign Policy and Fund for Peace in Washington. So from arguably the "failed state status" we have reached the notoriety of a county unable to functions properly as an operational state with remarkable ease and speed. This unspeakable fall is entirely due to the illegal actions of the president that this terrible calamity has befallen the nation. To compound the situation, the nation's de facto judicial branch went ahead in speedily settling all invariably arising constitutional questions in favour of the appointing authority; this occurred after this judiciary was itself inducted in a hiring spree by Musharraf for getting the number of judges in the SC rise from a meagre number of just four that took fresh oath of allegiance to the Musharraf regime under the PCO. As far as I am aware, none of the country's official lawyers' institutions like the Bar Associations and Bar Councils accept the new judiciary as constituting or possessing the de jure juridical status that the constitution envisaged. Resultantly a massive dysfunctionalism is evident in many facets of our public life and bureaucratic working in Pakistan. The top 10 countries that are rated as worst in such a dysfunctional state of affairs, in order of their inability to work in accordance of any known rules of their constitutional system being: Somalia, Sudan, Zimbabwe, Chad, Iraq, Congo, Afghanistan, Ivory Coast, Pakistan and the Central African Republic. Seven of the world's 10 most dysfunctional countries are in sub-Saharan Africa according to this annual survey. This state of affairs obtaining in the seven countries is due largely to continuing mayhem in both Somalia or in Sudan. Somalia, at the tip of the Horn of Africa, has been without a functioning central government since warlords overthrew former dictator Mohamed Siad Barre in 1991. Their ensuing conflict remains unsettled, and conditions have slipped steadily downwards. "In many ways, Somalia has failed already unpopular transitional government that lacks control of the streets of Mogadishu, much less the rest of the country," the list's compilers wrote. Pakistan like Afghanistan is exhibiting an unsettled march towards chaos and anarchy while the rules of inter se relationship between the major organs and functionaries of the government remain unknown and unmarked as a matter of practical reality. Anyone who has the might is apparently able to get away with whatever is desired notwithstanding any law or constitutional norm to the contrary. No worse example can be found in recent comparative history of such brazen illegalities than the bizarre and desperate phenomenon that the president painfully demonstrated on November 3. The only non-African country in the first five of the Failed States Index was No 5, Iraq. The compilers said Iraq ranked so high because of the US military surge in 2007. The index used in these dysfunctional states is based on 12 social, economic, political, and military indicators to rank 177 states in order of their vulnerability to violent internal conflict and the deterioration of their civil society. "The gains that one might hope for -those that reflect fundamental, long-term changes - did not occur in these countries and does not look primarily to go that way either," the compilers said. One look at the major decisions that have emanated from the higher courts in this phase of political history of the nation deserves notice. Without commenting on the merits of the major decisions of the SC in this period it is necessary to emphasise that it went ahead to decide a number of cases that when classified have to be placed in the domain of being prima facie highly contentious. To begin with there were three petitions challenging the credentials of Musharraf when the November coup took place. These petitions, including one that questioned Musharraf's capacity to contest to the office of the president; it was followed by a matter in which the legality of the coup was in issue. In these cases in the absence of any real political entity to seriously contest were nevertheless decided. In an historical sense these manifestly landmark cases, the SC under the new judiciary ruled in favour of the president. But more significantly the Lahore High Court (LHC) in matters challenging the right of Nawaz and Shabaz to contest in the by-elections to the National and Punjab Assembly, ruled against Nawaz Sharif. It is not hidden from anyone that Nawaz is the pre-eminent political leader in the country to openly ask for the impeachment of Musharraf and to assert his non-acceptance of the PCO judiciary. In the most recent survey, hse currently enjoys over 83 percent approval rating in Pakistan, far higher than anyone. It is thus really ironic that in country when highly political type 'laws" are "enacted" like the NRO by admitted usurpers attempting to condone massive corruption by political leaders and top bureaucrats, Nawaz Sharif is made to suffer on parentally trumped up charges relating to the 1999 coup. Thus the federal government on June 24 offered Nawaz legal help against an election bar; as a result the ruling coalition came under renewed pressures to make up for broken promises for the reinstatement of deposed judges. PM Gilani and Naek both told the National Assembly that the government would appeal before the SC to challenge June 23 ruling that disqualified the PML-N leader from contesting the by-elections. Gilani, speaking in the Assembly in the absence of PML-N lawmakers who had walked out in protest, said his government would also seek a postponement of the polling in the NA-123 constituency in Lahore for which Nawaz Sharif was standing until the decision could come from the SC. Naek earlier said the appeal before the SC would seek a stay of the order issued by the LHC judges before whom Nawaz Sharif had refused to appear or send a lawyer to argue for him because he did not recognise their legitimacy for having taken oath under a PCO issued by the president as part of his extra-constitutional emergency. However doubts about the presence of any real sincerity in PPP's promises have been raised; veteran Nawaz Sharif supporter Zafar Ali Shah, was not sure about the PPP leadership's sincerity about the judges' issue and about the usefulness of a proposed constitution amendment package through which it now says the deposed judges be restored rather than a National Assembly (NA) resolution as promised in the Murree Declaration. Two deadlines set for restoring the judges under the declaration. These deadlines were missed because of a perceived delay by Zardari, and there was no official word yet when the package would be passed by the required two-thirds majorities in both houses of parliament, which the coalition has in the 342-seat NA but lacks in the 100-seat senate. Naek however said the government had opposed the petition against Sharif's candidacy in the LHC through a deputy attorney-general and would make every effort to have that order vacated by the SC. "Now I hope a correct decision will come." Interestingly, Zafar Ali Shah labelled the Lahore ruling a "mini 58(2)(b)." He said this "power" had now been used in the by-elections and "could be used later against us." Addressing this matter the head of PML-N said he will not accept the verdict by the SC if it upheld the LHC's judgement against his eligibility to contest the by-election. However, the LHC verdict comes amidst growing perception that the forces averse to democracy are acting from behind the scenes to prevent Nawaz Sharif from entering the parliament. Sharif was judicially barred from contesting the by-election after the court heard two petitions filed by an independent candidate and a voter who sought his disqualification for being a defaulter and a convict. The verdict has been widely resented and leaving aside the merits of the case, it is certain to have far-reaching ramifications for national politics; it can also adversely affect the present ruling coalition, which is already shaken by mutual distrust. This is all in favour of the president who fears an impeachment any time the Coalition ceases to have such matters to remain in pursuit of as the current cases dealing with by-elections. It would seem that like the NRO, the PCO judiciary is being perceived as a conceptual continuum of the previous era of Musharraf that held actual ascendancy prior to the February 18 elections in the country. The writer is an attorney-at-law (US) and professor Harvard University