This is by no means the first coalition, because even in a first-past-the-post system like Pakistan’s, coalitions are by no means uncommon, but this has got to be the first coalition that has come under threat because of the deposed judges and the question of their reinstatement.
The member of the ruling coalition that has most consistently taken the issue of the deposed judges has been the PML (N), to the extent that it has had them included in the Bhurban Declaration. The PPP, though the leader of the coalition, has tagged along on this issue, and managed to create the impression that it is against restoration. It has, deliberately or inadvertently, succeeded so well in creating this impression, that it was only dispelled, and that too solely officially, by Mian Nawaz Sharif meeting Asif Ali Zardari twice.
The setting up of a second committee, apart from the one headed by the law minister, is on the face of it a bad sign for the judges, because committees are the usual bureaucratic weapon for not making a decision, but this committee will have to report a decision, because of PML (N) pressure.
The PML (N) managed to latch on to this issue during the election campaign, mainly because it wanted as many issues as possible which led to the president’s ouster. It was felt that this was an issue over which the foreign backers of the president would feel obliged to abandon him, and over which he would feel it necessary to make a stand. After all, the better PML (N) record with the judiciary could be explained by the common origins in defending past military take-overs, which were all validated by the Supreme Court, while the PPP was always this pro-people, pro-poor party, which constantly got in trouble with the judiciary because of this.
In fact, neither of the two major parties without which the ruling coalition would collapse has a particularly glorious record while in office on their own of protecting the judiciary. In fact, both have tried to extend the authority of the executive at the expense of other branches of the government, the judiciary included. Both have seen a judiciary ready to topple them if necessary, in order to maintain the special relationship with the establishment.
The PPP saw such initial problems with the judiciary that Zulfikar Ali Bhutto used his two-thirds majority in parliament to pass no less than seven amendments to the constitution, mostly involving the judiciary. When Benazir came to office, she clashed with the judiciary that had under Ziaul Haq hung her father, and placed Sajjad Ali Shah in-charge, but later Chief Justice Shah led the Supreme Court in the Al-Jihad case in making the superior judiciary independent of the executive.
He again clashed with a PM, this time Nawaz Sharif, who had wanted even as a Punjab chief minister quick justice which is not given by the prevailing system, not even in the criminal justice system, let alone in civil cases. The desire for quick, cheap justice has not been known to have left him, but equally it has not been known to inspire any PPP leader.
Nawaz has made no conditions about cheap or quick justice this time around, presumably in the hope that the current crop of judges will gain strength from the reinstatement, and will ensure the rule of law, which they are supposed to do anyhow, though they have upheld every action by the executive, whatever was said by the constitutional document of the time, each time.
The present Supreme Court had said that the infamous Doctrine of Necessity, by which the then Supreme Court had justified the Ayub Martial Law, was no longer valid. The present impasse really developed when the Musharraf government imposed an Emergency, removed most of the superior judiciary, and brought in judges who would not “interfere in the work of the executive.” In short, they would not hold the executive answerable to the law as it stood.
The immediate problem that faced the executive was the probability that the Supreme Court would hold the president ineligible to contest for another term, in which case the War On Terror would not be fought as Pakistan was meant to fight it, but it appeared that at last the Pakistani people would have some say in how it was fought.
It was thus necessary to make sure that the judiciary did not interfere in the work of the executive, which it seems was first to make Pakistan safe for five more years of Musharraf Presidency, and to ensure that the law of the land was not allowed to interfere in the smooth conduct of the War. An example was the missing persons case, where the heads of intelligence agencies, jumped-up military men except where the agency was military itself, were almost summoned. Though the president was apparently far above this, touching them touched on how he ruled, through intelligence reports and the agencies.
We thus had a situation where all of those who had formed the government in the last 50 years or more were upset at some stage or another with the courts, including the PPP and the military, and an electorate which did not ordinarily associate the courts with justice. Under these circumstances, the PML (N) was forced by the assassination of Ms Benazir Bhutto to search for an issue, and came upon the judges.
The issue was indeed a strong one, strong enough for the PML (N) to be convinced that it won as many seats as it did because of it. It is a core issue with the PML (N) more than with the PPP, which, if it has to, would like to tame the judges as well, or rather make them obedient to its will.
Indeed, this is all that any government asks, that the courts should justify their actions. No executive really understands what is rule of law, or what it means to govern under a constitution. Probably only the judges are interested in the rule of law; their political allies are not. Nawaz has converted it into a battle between the presidency and parliament, with the judges, both serving and future, not participants in the battle, but as the battlefield.
Courtesy: The Nation, 25/4/2008