Apr 212008

Asif Ezdi

At their meeting on April 15, the leaders of the coalition parties reaffirmed the commitment made in the Murree Declaration to restore the dismissed judges within thirty days of the formation of the federal government. But doubts still remain whether the PPP is seriously interested in restoring the judges, in particular the chief justice. More than a month after the signing of the Declaration and more than halfway into the 30-day period, there is still no agreement on the modalities for the return of the judges. Countless meetings between the PPP and the PML-N to thrash out the issue have failed to produce the magic formula on which the two sides can agree. There is disagreement even on the modalities to work out the modalities. The PPP would like to entrust the question to a parliamentary committee, where its approach on the judges’ issue would be shared by the PML-Q and the MQM. On the other hand, the PML-N, would at best agree to a cabinet committee.

The PPP’s reservations about the chief justice have been known for a long time. At a meeting of the party’s Central Executive Committee on April 4, Zardari more or less openly expressed his misgivings by unburdening himself of a long “charge-sheet” against the deposed Supreme Court judges, whom he also held responsible for his eight years in jail. He is also reported to have alleged that the chief justice had now become “politicised” and therefore disqualified himself for serving on the Supreme Court.

A far more plausible explanation for the stance adopted by the PPP on the judges’ issue is to be found in the way the chief justice dealt last October with constitutional petitions challenging the National Reconciliation Ordinance promulgated by Musharraf on Oct 5, one day before his “election,” as part of the US-brokered power-sharing deal with PPP. In return for the amnesty given by the Ordinance to holders of public office charged with corruption between 1986 and 1999, PPP MNAs and MPAs did not resign from the National and Provincial Assemblies, as some other opposition parties did, and thus enabled Musharraf to claim a degree of legitimacy for his “election” in uniform by the outgoing legislatures.

Within days after the promulgation of the NRO, its validity was challenged in the courts, among others by PML-N president Shahbaz Sharif. Admitting these petitions, a Supreme Court bench headed by Chief Justice Iftikhar Chaudhry passed an order on Oct 12 barring the subordinate courts from deciding cases under the Ordinance till the final ruling of the Supreme Court on its constitutionality. A news story which appeared in this newspaper on Oct 13 welcomed the Supreme Court order and described it as “an excellent Eid gift to the nation, spoiling the celebrations by a small number of prospective powerful political beneficiaries of this special law.”

The NRO is not only subject to judicial review, it also has a limited four-month life under the Constitution. The previous government under Musharraf could have had the Ordinance passed by the parliament – giving it permanent life – but did not do so. Under Article 89 (2) of the Constitution, the Ordinance therefore stood repealed on Feb 4. Sher Afgan, then parliamentary affairs minister, explained in his characteristic endearing manner that he had been unable to table the ordinance in the National Assembly when the house met on Oct 7 and 9 because it had not been printed in the form of a bill. But he had asked his staff to place it in the National Assembly library and that it would therefore be “deemed” to have been presented to the House, as the Constitution requires.

The actual reason why the NRO was not passed as an Act of Parliament was less straightforward: Our small-time Machiavellis in the Presidency felt that the passage of the ordinance as a permanent law should be dangled as a bait to the PPP at an appropriate future time to extract further concessions. Musharraf had played this game quite skilfully in the outgoing parliament in which corruption charges against many legislators were dropped when they switched support to him. The plan was to repeat this performance and enact the NRO as a permanent law after the parliamentary elections, in return for the PPP’s support to Musharraf.

The situation changed with the proclamation of “emergency” on Nov 3. Now, Musharraf needed allies who would support the PCO, tacitly if not openly. To win support from the PPP, he gave the NRO a permanent character under Article 5(1) (2) of the PCO. This was confirmed under paragraph 6(3) of the Constitution (Amendment) Order, 2007, passed on Nov 21. The PPP reciprocated this favour by refusing to join in the demand for the restoration of the dismissed judges and for the removal of Musharraf from office.

For the PPP leadership, accepting that the judges can be restored through a simple resolution of the National Assembly is not easy, because that would mean that the PCO was null and void from the beginning. And if the PCO goes out of the window, so does the NRO. At Bhurban, the PPP agreed to the reinstatement of the dismissed judges only after obtaining a promise from the PML-N that the judges who took oath under the PCO would retain their jobs. These judges had on Feb 27 held the NRO to be valid, although its four-month life was over by then. They had also “overruled” the earlier order given by Chief Justice Iftikhar Chaudhry directing the subordinate judiciary not to decide any case under the ordinance till its constitutionality had been determined.

Although the PPP leadership does not want Iftikhar Chaudhry to return to the Supreme Court, it cannot afford to come out against him openly. It has therefore indirectly encouraged moves by Musharraf to keep him out, such as the “Minus One” formula, a constitutional amendment to limit the term of the chief justice to three years and moves to declare Falak Sher as the senior-most judge and therefore the rightful claimant to the post of chief justice.

The PML-N will soon have to decide whether it would be prepared, in order to save its coalition with the PPP at the centre and in Punjab, to sacrifice Iftikhar Chaudhry. Although there might be some in the PML-N who would rather opt to stay in power, the party leadership is likely to prefer saying goodbye to the coalition over saying goodbye to the chief justice.

The PPP is facing a fork in the road. It has to choose whether it would like to govern in coalition with the PML-N (with an independent Supreme Court headed by a chief justice named Iftikhar Chaudhry, a downsized Presidency occupied by someone other than Musharraf and the NRO consigned to the dustbin) or in alliance with the MQM and the PML-Q (with a president called Musharraf still wielding substantial powers, a chief justice selected for his “reliability” and the NRO a permanent part of the statute book). If the PPP takes the first path, the country would be launched on an ascending trajectory leading to constitutional rule, democracy and the rule of law. The second path would be a downward spiral fraught with instability, turmoil and debilitating political strife.

In Lewis Carroll’s Alice in Wonderland, when Alice comes to a fork in the road, she asks, “Which road do I take?” “Where do you want to go?” responds the Cheshire cat. “I don’t know,” Alice answers. “Then,” says the cat, “it doesn’t matter.” The people of Pakistan know where they want to go. So for them it does matter a lot that the PPP takes the right path. All of us in the civil society have a duty to do all we can to persuade the PPP to make that choice. But don’t bet on it.

The writer is a former member of the Pakistan Foreign Service. Email: asifezdi@yahoo.com

Source: The News, 21/4/2008

 Posted by at 3:49 pm

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