What has been niggling at the ordinary, non-judicial, mind, is what the whole judges’ controversy is all about. Why would the PML-N risk at least the government at the Centre to ensure the restoration of a number of judges deposed as long ago as the beginning of November? And why did the President make it any sort of sticking point, let alone one on which he was willing to risk the entire edifice that he himself had constructed. Actually, this is a natural consequence of having a Westminster-style Constitution, with the separation of powers embedded in it, but at the same time the parliamentary system, which places the executive as a subordinate of the legislature.
This was the constitution foreseen by the 1935 Government of India Act, which Pakistan inherited as a constitution, and which formed the basis of all constitutions passed since, including that of 1973, which in turn has survived two bouts of military rule, by no means unchanged, but at least unabrogated. The 1973 Constitution has an Executive headed by the President, but comprising the majority parties in the assemblies, which constitute the Legislative, all under the Constitution, under which all laws were passed by the legislatives, which were either headed by the President or his representatives the Governors, for interpretation by the constitutional courts, which were provided in the Constitution as the Supreme Court and the High Courts.
These courts also had appellate jurisdiction over the subordinate courts, over which the Executive enjoyed some control through the provincial law departments. It was a suitable constitution for America, where the ministers were kept out of the legislatures, and thus the separation of the Executive was achieved from the Legislature, but not for Pakistan, where it merely provoked the old debate of whether judges should be ‘lions under the throne’ or not.
The question left unanswered was whether judges were servants of the state or of the government. Or rather of the state or of the establishment. The establishment has been very clear, as has been the bureaucracy from top to bottom: the judiciary is a servant of the state, but not of the government of the day, but of the establishment’s government, which comprises the military. That is why the Musharraf regime received the support of all civil servants when it arrived, because it was anticipated that it would receive legal sanction from the Supreme Court, which it duly did in Zafar Ali Shah’s case. This followed previous cases on previous bouts of military rule, starting with Ayub, and continuing with Yahya and Zia, of validating military rule.
When the Supreme Court headed by Justice Iftikhar Chaudhry first fought off the attempt to get rid of the Chief Justice, and then seemed ready to defy the establishment consensus, the Executive was shaken. The politicians, who had been put aside by the Musharraf intervention, were not only back in the game, but used the Court as an election issue.
The ousted judges stayed aloof from political parties, but were clearly not supporters of the status quo. However, they did not reckon with the ire of the President. His reason for tying his best to stop the judges getting back on the Bench: the original reason, his fear that they might deal with him in accordance with the law. That is the worst nightmare of any martial law ruler: that the law and constitution might be followed against him. This is so because all martial law rulers know that what they have done was against the law and constitution, and is subject to punishment.
A COAS who has become President has no intention of becoming an ordinary prisoner, and is willing to do anything to stay free, even if it means keeping the courts in fetters. And the best way of keeping the courts in fetters is by so keeping not just the Supreme Court, but all courts, is by keeping the Chief Justice of Pakistan. There is just one problem: the Chief Justice must be an accomplice to all this. If by some mischance he chooses not to be a tool of the establishment (which is really all that the army chief-turned-President is), then there is nothing for it, but a long-drawn fight, as this time. The first weapon that the President has is the PPP.
That party has actually done more than the PML-Q to support the President on the judges. This is despite being in alliance with the PML-N, which chose the restoration of the judges as the election issue with which to be identified. The PPP is ready to risk the fall of the coalition rather than either consent to the PML-N formula for restoration, or present its own.
If it supports a defective PML-N formula, which in a worst-case scenario runs into trouble as soon as it is implemented, it ends up with the blame falling on the PML-N, a nonfunctional judiciary, and an enraged President, but it remains in government, and thus lives again to fight another day. On the other hand, at present, it ends with the favour of the President, but facing another election without the government, but with the support of the President, and of the establishment. On the other hand, all the PML-Q has done is say that the President made a mistake in sacking the judges.
The idea is that the judges who are converted from ordinary human beings to residents of GOR, or Judges’ Colony, duly insulated from the troubles in life that are attendant upon being Pakistani, should not have any trouble until retirement age. They should give judgments in accordance with law without any fear or favour, and with no regard to what they have always tried to keep uppermost, the welfare of their families.
In short, establish the rule of law in a way that it has not been established in the very countries that proclaim this tradition the most. It should be noted that in the capitalist countries, the governments maintain the image of rule of law by giving decisions that do not favour the state unless the state really needs it. The state, not some individual trying to cling to office. Unfortunately, that is the main purpose here of having the judiciary on your side. And that was what Dubai was all about.
Courtesy: The Nation, 2/5/2008