Apr 282008

Zardari’s acceptability in the country is clearly falling. It is also manifest that his popularity as well credibility amongst those that have genuinely spearheaded this democratic movement is dithering away. There appear to be two main reasons for this spiral of stunning downhill slalom of political fortunes. 
First and foremost is his less than convincing stance on his commitment to restore the judges to the pre-November 3 position within 30 days of the formation of the federal government. I am personally disappointed at this faux pas; as observed in these columns earlier I thought he now came out as a polished statesman. Secondly, there has been ostensibly no genuine transfer of sovereignty to the parliament. From the past attorney general, who played a notorious role in the judicial crisis faced by the civil society, to ordinary heads of various intelligence and other law related agencies, Musharraf’s political appointees continue.
There is I believe, a realisation within the PML(N) that the fate of Nawaz Sharif and his party could also be no different in public evaluation if the promise made to the civil society is scarified with a “compromise” solution. Perhaps, it would be more damaging in the case of the PML(N). If such a compromise is approved between the two parties, the PML(N) would only consider this formula to achieve the greater goal of the judges’ restoration and to save the PPP-PML(N)-ANP coalition from possible collapse. The PML(N) finds itself in a difficult position as it is being made to concede to slashing the tenure of the deposed chief justice in exchange for the PPP’s willingness to table the resolution in the NA for the restoration of the deposed judiciary.
However, being the first lawyer to agitate this matter in the superior courts through various petitions since March 2007 and having written scores of pubic columns such a solution is not acceptable to me or to the leadership of the lawyers’ fraternity a or indeed to the civil society, which had struggled relentlessly after March 9, 2007 for the cause of the independence of the judiciary and for democracy. 
Hence public criticisms and backlash is already evident in public commentaries and in various contemporaneous evolutionary events that are now surface daily. I fear that a political tsunami is threatening Zardari and may be even the PML(N) if the matters are not settled in accordance with the “Will of the Public Mandate” on February 18. Any dethronement of Zardari from the lofty position he now has would equally adversely affect the PPP. So the devastation that such overtures to Musharraf may bring upon the present administration and the parliament would be huge. 
The PML(N), having thus far championed the cause of the restoration of the judiciary through parliament, is now reluctantly considering the option of a CJ Iftikhar-specific constitutional amendment, slashing his tenure from June 2013 to 2010. According to PPP comments by their present ministers Zardari maintains that both the ANP and the JUI are with them on this issue. Though no formal decision has been taken it is certain that this compromise solution is being deliberated upon to save the PPP-PML(N) coalition since Zardari is adamant that it would not allow Justice Iftikhar to continue till June 2013. Why? Is there a possibility of a Musharraf nexus in the background as quid pro quo for the enactment of the NRO?
Leaders of PDA may keep in mind the modality of their arrival in the historic opportunity they presently have. They were at the mercy of the worst dictatorship in the history of the country just weeks before the present election process started last autumn. It was entire the struggle of the lawyers in deference to the deposed CJ that made this possible. They can conceivably obtain a niche of immortality in the painful saga of democracy in this country by reaching at the honourable conclusion demanded of them by time. 
I may mention in passing that tenure of the appointment of CJ is not fixed either in Britain or India whereas in the US the judges of the SC and those of the federal courts are appointed for life. Historically, it was only during the government of ZAB when, in 1976, a constitutional amendment was passed to fix the tenure of the high court chief justices to four years and that of the CJ to five years. This amendment came through because PPP’s legal leaders of the time felt belittled by the then lofty chief justices of the Lahore High Court, Justice Sardar Muhammad Iqbal and the Peshawar High Court Justice Safdar Shah. 
This constitutional amendment was undone by Zia who reverted to the system of retiring the judges, including the chief justices, on their set age of retirement. It is thus strange that after 32 years of much castigated 6th Amendment of Bhutto was decisively ousted that his son-in-law Zardari, is determined to introduce a constitutional amendment targeting Justice Iftikhar. The CJ has given a new hope for the independence of the judiciary in the country. Because of what he did on March 9 and later on Nov 3 and for the kind of decisions the SC handed down during his tenure as CJ, he has become a symbol of the independence of Pakistan itself. Curtailment of his tenure only because he is a powerful source of progressive thinking would make a mockery of the dreams of the people of Pakistan. Pakistan’s irony is that the constitution has been repeatedly amended to the advantage or disadvantage of personalities instead of strengthening the system and institutions. 
A word about the general ambiance of Zardari to the current controversies would be helpful. Zardari maintains that he has undergone a deeper “transformation” after being incarcerated for eight long years. In this context he had genuinely lots of complaints against judges. He thus feels that the people’s perception about him has changed from that of the prodigal husband of the populist BB to a contemporary advocate of reconciliation. The “split” personality of Zardari surfaced strongly during April 21 coalition meeting on the restoration of the judges and was not liked at all by various sections of society. The admiration for the deposed judges as their national icons was in sharp contrast to the inherent distrust of political leaders who preferred to get themselves detained along with their children at their own houses instead of living in exile in comfortable surroundings costing multi-million dollars. However, he is not generous to accept a similar transformation in the psyche of the judges who refused to take oath under PCO on Nov 3. The majority of Pakistanis are convinced that Nawaz, Shahbaz and even Zardari could not have dared to return to the country, if judges would not have defied the illegal steps taken by Musharraf. 
One has also to see the entirety of the picture in which many of the infamous names of recent past in bureaucratic national edifice are returning by the dozen from their external luxurious hideouts. There are besides a host of former party loyalists, vying to obtain the key ambassadorships of Pakistan in London and Washington. One of them even talked to me at that time to get him even a minor teaching position in the US! Most of them are PPP favourites. 
They all went abroad to escape the wrath of Musharraf regime. They are now all returned to garnish their own share from the “booty” after taking the first available flights from abroad once after long struggle of judges, lawyers, media and civil society democracy was restored and Musharraf confined to his Army House. Where were these new “guests” when these deposed judges, media men, lawyers and civil society members were being brutally beaten, tear gassed and dragged on roads by furious cops? Before the general elections, Zardari is on record to have said that the PPP was all for natural political alignments for ushering in true democracy. But by allowing his PM to seek vote of confidence from the PML(Q) as his wife’s killers, and by exchanging traditional Sindhi caps with MQM at 90, Karachi, another message is being given. It is clear that Zardari is ready to make deals signifying he would not care if Nawaz walks out of the alliance. This is a political minefield of settling old and diverse scores with many people by Machiavellian manoeuvres. 
The dates considered by many as set for moving the Assembly Resolution for the judges is now past. First April 23 and now even 25th has gone. I understand that the PPP leadership is not really sanguine in its assertions of abiding by the Murree declaration. In the joint press conference in Islamabad on April 22 by Nawaz and Zardari while there are some warning shots at Musharraf’s as well, it is clear that there is no urgency to resolve this matter expeditiously. Zardari’s press statements in the past few weeks and of course his famous offer to make CJ the Governor of Balochistan speaks volumes of the depth of his conviction on this point. It is further announced that the president of the SCB may not be even given the PPP ticket for the upcoming elections from Rawalpindi. The political attraction of the judges’ issue is so powerful that even the PML(Q) has promised to support the widely popular movement for the restoration of the judiciary. 
One cannot help noting without commenting on the anomalous statement that “Prime minister apprised the president of the situation through the letter of Nov 3, 2007” for imposition of emergency, and on the other “order passed by the chief of army staff is approved” which is logically and juridical a non sequitur. From where does and under what authority can a COAS so act as Musharraf did on Nov 3? I have not only argued many of these issues in landmark judgments but have also written scholarly works of international significance on these issues. When appropriate opportunity comes, I am willing to present those arguments which render these opinions arguably of no constitutional significance.
After gaining so much because of the political initiative that Zardari has taken in the recent weeks, he is on the verge of losing all. Nawaz Sharif has to be most careful not to fall in some grandiose trap of momentary goodwill. His strength is his cause and his lack of any immediate interest in any jobs. His weakness is that he is also surrounded by many whose credentials for the high positions they are getting are most thin. I have also felt that organisationally he is still running this campaign like a private business; it is necessary that he has a proper qualified staff around him to run this huge campaign that he is now leading. I hope these two succeed for the sake of this country’s future; otherwise I see great turmoil ahead in which Musharraf will continue to haunt his presumptive successors. Despite the astonishingly severe humiliation he suffers daily, Musharraf refuses to quit. Why? Then answer to this question contains the genesis of Truth.
The writer is a barrister at law (UK), attorney at law (US,), senior advocate Supreme Court of Pakistan, and professor Harvard University

Courtesy: The Nation, 28/4/2008

 Posted by at 7:00 am

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