May 082008

Announcing May 12 as the date for the judges’ restoration, Mian Nawaz Sharif confirmed one of the sticking points had been resolved, the judges inducted because of PCO-2 would remain in the Supreme Court and the provincial High Courts. Mian Sahib said he had agreed only so that those affected adversely by PCO-2 could be restored to the Benches. A constitutional amendment is necessary, among other things, to raise the number in the Supreme Court from 17 to 27. In a discordant, note the Pakistan Bar Council (PBC) has categorically refused to accept those judges who took oath under PCO-2. Why does everyone hesitate to elaborate the Charter of Democracy signed in London in 2006? What is the difference morally between the judges who accepted PCO-2 and those who accepted PCO-1? Come to think of it, did even respected Justice Fakhruddin Ebrahim twice take oath (one optional and the other compulsory) under Zia’s military regime? One is sure he definitely refused the third time (1981), retiring as a judge of the Sindh High Court (and ad hoc judge of the Supreme Court) four years into Martial Law.

The first priority should be to restore the judges who did not take oath under PCO-2. Thereafter, a neutral 6-9 member judicial commission composed of eminent retired justices of the stature of Ajmal Mian, Afzal Zullah, Fazl-e-Karim (from Punjab), Salim Akhtar, Mamoon Qazi, Zafar Hussain Mirza (from Sindh), Mian Ajmal, Fazal Elahi Khan (from the Frontier) and Amirul Mulk Mengal (from Balochistan) should screen all the incumbents without exception, whatever it takes to have a genuinely neutral squeaky-clean judiciary. Many other excellent judges who could be in the commission, e.g., Fakhruddin Ebrahim, Nasir Aslam Zahid, Saeeduzaman Siddiqui, Wajihuddin Ahmad, have unfortunately already forcefully expressed themselves.

Mian Nawaz Sharif has tacitly (and correctly) accepted that Asif Zardari’s contention has practical logic. A five-member committee (now less Justice Fakhruddin Ebrahim who resigned on a point of principle) is now busy with the preparations regarding (1) the seniority of the judges (2) the period of the chief justice’s tenure (3) constituting of the Supreme Court Benches (presently the chief justice’s sole prerogative), etc. The package of amendments must be made into law before the restored judges actually sit in the courts again. Zardari faced a lot of vilification in the media for standing his ground. If the legal lacunas are not thrashed out, instead of the superior courts we will have a fish market.

The apprehension is whether the May 12 deadline can be met. As things stand today, it will not be! May 1 should be marked as a watershed for Pakistan, our leaders came of age. Zardari would have lost politically if he had conceded, by not walking out of the coalition and agreeing to extend the deadline, Mian Sahib has also not lost. In not blinking Zardari won, in not walking out the Sharifs won. If politics is the art of compromise, pragmatism is the soul of politics. What is to be seen is whether this win-win situation can be cashed in.

The Presidency was already celebrating a gridlock, anticipating a meltdown of the coalition. With the coalition playing dumb, the Establishment’s ability to manipulate the course of political events has been emasculated and minimised for the future, still not eliminated altogether. The present arrangement requires leaving the president presently in place, the moot point is how much of his wings being clipped will Pervez Musharraf tolerate? The fluidity of the transition stage requires national reconciliation which cannot be exclusive of President Pervez Musharraf, at least for the time being. Despite major blunders (trying to get rid of the ever-loyal Chaudhry Shujaat Hussain only adds to the list of gaffes) leading to the present crisis, Musharraf provides continuity as well as check and balance, will he stay within his constitutional role? Only a constitutional package will spell out the parameters of presidential authority. Those railing against Article 58(2) (b) forget that he has not used it in his tenure; at least two of his civilian predecessors did.

Mian Nawaz Sharif is in a Catch 22 situation: pushing Zardari too far would send him lock, stock and NRO into the beleaguered camp of the president, reviving his fading fortunes. On the other hand Mian Sahib cannot be seen to be condoning Musharraf’s continuity. For the greater public good in the longer term, political statesmanship must be able to buck public demands in the shorter term. Mian Sahib has shown courage in taking the pragmatic and responsible route. Is it a coincidence that by not contesting in the bye-elections Mian Sahib has virtually announced his intention to be the next President of Pakistan?

The close aides who surround Mian Nawaz Sharif during his deliberations are all directly elected representatives, in contrast to Asif Zardari’s close aides who are indirectly elected. In many ways Asif Zardari is out on his own in taking decisions for the PPP; the PML (N) decisions are also one-man but these are collegial, at least that is what the public perception is. Zardari has mitigating circumstances, the brutal assassination of Benazir Bhutto was not only a setback for the party it put the entire country at a critical crossroads. When instant decisions have to be taken, one cannot afford that issues be debated to death.

One of the major casualties of the crisis engulfing Pakistan since Mar 9, 2007, is objectivity, especially among the intelligentsia and the media. Instead of dispassionate statement of facts, and wholesome debate and objective conclusions thereof, the heart has overwhelmed the logic of the head. Those who shout loudest for freedom of expression want to deny it to others. One cannot do right all the time; similarly one cannot do wrong all the time. Those who caution in favour of sanity are accused of motivated bias. Instead of simply casting aspersions on so-called “wired” businessmen and journalists, the favours made to them by the regime should be made public. Making vague innuendos cleverly avoids giving opportunity to take them to court for false allegations and defamation. And let us not restrict this challenge to exposing favours only by the last regime, it would be interesting to go regime by regime as far back as 30 years when Gen Zia-ul-Haq took over!

The lawyers have conducted a magnificent struggle for over a year, they are very close to achieving their objectives. Since the two major political parties represent the aspirations of the majority of the people, whatever solutions they carve out should be accepted by the legal community. By agitating further they risk giving anti-democratic forces an opportunity to create mayhem. Adventurers have always taken advantage of civil turmoil, real and/or perceived this could happen again. Having shown great courage and fortitude in support of their contention, do the lawyers have the maturity to compromise despite extenuating circumstances? National reconciliation is the need of the hour to meet the multi-faceted, multi-dimensional challenges. In the approaching economic crisis and food shortages, the poor and impoverished are in imminent danger. Pakistanis must circle the wagons to present a united front against the adversity approaching us, steadily and surely.

The writer is a defence and political

analyst. Email:

Source: The News, 8/5/2008

 Posted by at 9:11 pm

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