The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School
The Pakistan Peoples Party is a mainstream party liberal party rooted in the masses and the success of its government bodes well for the future of democracy in Pakistan. Yet its flip-flop over the judges’ issue and its apparent proclivity for politics of seedy deals under the garb of ‘reconciliation’ (an otherwise worthy notion now almost as discredited as the Musharrafian ‘enlightened moderation’) is dismaying even its avid sympathizers. The allegation against the PPP is that there is a fundamental contradiction between the stated policies and actions of the party. That PPP’s leadership came back to Pakistan through a sneaky backdoor deal, and in publicly allying itself with the PML-N while secretly working with the general and his cronies comprising the establishment, the PPP is trying to run with the hares and hunt with the hounds.
Unfortunately, the PPP has done little so far to dispel such allegations. First of all the PPP’s HR policy is inexplicable. A change in the federal government is expected to have a domino effect that wipes out remnants of the old guard. Yet we still see positions as important as that of attorney general and the interior secretary occupied by Musharraf loyalists. Is it really a coincidence that while the PPP issues garbled explanations for not removing the general’s controversial homies, the attorney general hectically tours foreign lands to clean up the legal cases implicating Asif Zardari? Second, the word equivocation continues to define the PPP’s approach to policymaking and implementation. One moment the top PPP leadership is crying conspiracy in the face of the Election Commission’s shocking decision to delay by-elections due to security concerns and the next we find out that it was in fact engineered by the PPP’s security czar Rehman Malik.
The volte-face on its clear commitment to restore the deposed judges within thirty days of the formation of the federal government is another example of such duplicity. Reneging on a promise publicly made to the people of Pakistan is not only adding to the PPP’s credibility-deficit but is fuelling the disillusioned, ultra-sceptical attitude of the public toward politics and the political process generally. The biggest malady of democracy in Pakistan has been that while ‘pro-democracy’ dictators and autocratic politicians have taken turns ruling the country, the gains of representative politics have never trickled down to the citizens. With dictators being dictators and democrats also being equally dictatorial in their style of governance, it has been hard for the ordinary Joe to distinguish between democracy and dictatorship.
We are at the crossroads yet again and there is an opportunity right in front of us to take a leave from our history of bitter partisan politics devoid of scruples and characterized by sly deals and intrigues hatched by non-democratic forces. But who is to blame if we blow up this opportunity once again and our elected forces coalesce with the shadowy ones in the name of expediency or reconciliation? And in that regard the issue of restoration is the litmus test for our political parties. The outcome of this issue will define the character and potential of the democracy that we are in the process of introducing to Pakistan.
Will it be a ‘democracy’ where it is acceptable that a lone saviour in the army house or a bunch of politicians huddled in a foreign land determine the composition of the Supreme Court or will it be a representative system where principles of the Constitution that are backed by popular will are not allowed to be compromised for the sake of transient political objectives of the rulers? Will it be a ‘controlled democracy’ where seeking the blessings of non-representative pro-status quo forces will be a prerequisite for aspirants of political office or will it be a government of the people where politicians rely on public support to entrench themselves in office and are guided by people’s wishes in formulating policies? Will it be a polity where betrayal of promises will become an acceptable form of ‘politics’ or will holders of public office in all branches of government be held accountable for breach of trust reposed in them by the nation?
It is hard to fathom why a popular party such as the PPP should pursue a policy vis-à-vis the judges’ issue so bedevilled with contradictions. As a historical matter we continue to censure the Supreme Court for never rising to its mantle and protecting the Constitution against the assault of dictators and for actually becoming abettors who condone or validate subversive attacks on our fundamental law. Yet the best argument put forward by advocates of the general against the restitution of the judiciary to the Nov 2 form (also bought into by the PPP and exhibited by its obsession for retaining the post-Nov. 3 appointees of the general) is that we have condoned subversion of the Constitution before and thus the die is cast and we ought to do so again. But why should this nation be held hostage by its wretched constitutional history?
If we cannot break free from the shackles of ‘necessity’ and ‘expediency’ when the Supreme Court, backed by the entire lawyers’ fraternity and the nation, finally abided by its duty to protect the Constitution and stood up against the whims of a reckless dictator, will it ever happen? From a moral stand point, the detractors of the deposed judges condemn them for swearing an oath under the PCO of 2000. What they did then was wrong and the only excuse (though not a justification) they had for becoming party to the molestation of the Constitution was that the nation had welcomed the general’s coup of 1999 and that a bunch of Supreme Court judges cannot on their own prevent martial laws. True, they could have shown more integrity and gone home, as others led by the then Chief Justice Saeed-uz-Zaman Siddiqui did. But does the fact that many of the deposed judges did not adhere to a principled position in 2000 automatically disable them from abiding by the Constitution and its principles for all times to come?
Are the PCO judges then better and worth fighting for just because they have been consistent in abetting the subversion of the Constitution? After all, the PPP is dragging its feet on the restoration issue merely to find ways to preserve the PCO judges. And the logical outcome of not restoring the deposed judges and maintaining the status quo is that the PPP prefers the PCO judges over the deposed judges. What is the PPP’s approach to morality, principle or logic that explains this contradiction? Even if we agree to condemn those among the deposed judges who swore an oath under the PCO of 2000, doesn’t the Dogar court also fall in that category? The PPP has not come out with the radical suggestion of clearing out all PCO judges and replacing them with new ones. It just continues to criticize the deposed ones for past sins, while pursuing a policy that actively favours and patronizes the PCO judges who are in the wrong to this day.
The restoration of the Nov 2 judiciary must flow from the principle that the general’s acts of Nov 3 were unconstitutional and thus void, and all related issues, including that of the PCO judges, must be addressed in a manner consistent with this principle. This divides the judges into three categories: the deposed ones, who were removed unconstitutionally by use of illegal force; the PCO judges who were part of the Nov 2 judiciary and swore an oath of allegiance to the general to save their jobs; and the PCO judges who were hastily appointed by the general after Nov 3 to stuff the courts.
Now if restoration takes place on the principle that the Nov 3 acts were illegal, as asserted by the PPP as well, the appointments of the third category of judges, who were appointed after Nov 3, automatically become illegal and void. The PPP-led government can choose to reappoint them as a matter of policy, in accordance with the constitutionally-mandated process, but their appointments cannot be legalized without providing them amnesty through a constitutional amendment. The second category of judges, who were judges on Nov 2, would however stay on as they can only be removed in accordance with the procedure prescribed under Article 209 of the Constitution.
Politics is a game of compromises and there is nothing abhorrent about compromising on matters of policy. But justice is a matter of principle, and a compromised principle is no principle at all. Pakistan has suffered grievously for accepting and condoning a compromised justice system that has produced ridiculously conflicted constitutional jurisprudence. This is our opportunity to break free from our chequered past. It will be a tragic mistake if in its misplaced zeal for deals and compromises PPP chooses to address the restoration issue by compromising principles yet again — a mistake that will cost PPP dearly.
Source: The News, 10/5/2008