May 202008

The decision of the PML-N to withdraw from its coalition with the PPP following the breakdown of their talks on the judges’ issue is good news for all those who want the country to return to the constitutional path after the havoc wrought by Musharraf’s depredations. Particularly welcome is the announcement by Nawaz Sharif that his party will not agree to the retention of judges who took oath under the PCO. When Nawaz Sharif held his meetings with Zardari in London, the apprehension was that in order to save the coalition, the PML-N might agree to a restoration of the dismissed judges on Zardari’s terms. This would have involved a constitutional amendment to keep out Iftikhar Chaudhry or clip his powers as Chief Justice and the retention of all the PCO judges, including those handpicked by Musharraf after Nov 3 for their reliability and subservience. A clause making the NRO a permanent law would also have been sneaked into the constitutional package. Such a deal would have amounted to a validation of Musharraf’s “election” and his second coup. That danger has now been averted, at least for the immediate future. Not an occasion for rejoicing, but certainly one for a sigh of relief that the worst has not come to pass.

By agreeing at Dubai to the retention of the PCO judges, Nawaz Sharif gave away too much and got little in return, except for a shadowy promise that the judges’ issue would be settled by May 12. What Nawaz Sharif does not seem to have realised is that by agreeing to keep in office judges appointed after Nov 3, he also implicitly accepted that the decisions given by the PCO judges were judgements of a validly constituted court. One of those judgements upheld the legality of the PCO. Another ruled that the “election” of Musharraf was constitutional. Most important from Zardari’s point of view was the decision declaring the NRO to be a valid piece of legislation.

Another consequence, if Zardari had had his way, would have been that there would be a Supreme Court consisting of the record number of 27 judges, out of whom the vast majority (some 20 or so) owed their positions to their willingness to kowtow to a military dictator. As one of the slogans of the lawyers’ movement puts it, what they want the new government to do is to “restore judges, not Dogars.” Imagine a 27-man Supreme Court out of which 20 are Dogars. What is more, the Court would also be headed for years to come by a Dogar after Dogar after Dogar. The same picture would be replicated in the four provincial high courts. To expect independence from such courts would be a pipedream.

Those who argue that restoration of the judges is not a priority issue for the public forget that the PML-N did so well in the elections, despite the short preparation time, mainly because it took a clear and forthright stand on this issue. Despite this, the party’s stance on the retention of the PCO judges has flip-flopped. At Bhurban, it agreed to keep those PCO judges who were in their posts on Nov 3. At Dubai, it backtracked further and agreed to keep also those who were appointed after Nov 3. At the London meeting, the PML-N proposed that these judges be treated as ad hoc judges, but the insistence of the PPP on making them permanent judges was one of the reasons for the breakdown of the talks. We owe it to the inflexibility shown by the PPP and the warnings given by the lawyers’ movement that the PML-N has now openly declared that it is opposed to the retention of all those judges who took oath under the PCO, whether appointed before or after Nov 3. This is to be welcomed because it brings the PML-N in line with the civil society on this issue. But given the PNL-N’s recent record, there is no guarantee that its position will not shift again.

The PML-N position on the NRO has also changed. When the Ordinance was first promulgated, the party immediately challenged it in the Supreme Court but now Shahbaz Sharif wants the amnesty extended also to him and his party. We do not know if the deal that was being negotiated between the two sides would have included a mutual absolution from charges of corruption. The more honourable course would be to contest the cases in court and get an acquittal. Some PPP leaders charged with corruption have set an example by choosing this path and declaring that they will not seek acquittal under the NRO but would clear their names by disproving the accusations against them.

There are some within the PML-N who favour “flexibility” on the judges’ issue in order to save the coalition. Shahbaz Sharif cannot wait to become chief minister. Their argument is that leaving the coalition would strengthen the anti-democratic forces and give them a chance to stage a comeback. The point they miss is that these forces have already made a comeback, thanks in part to the concessions made by the PML-N on the judges’ issue and its U-turn on the NRO. If the PML-N gives any further ground, the forces of reaction will become firmly entrenched.

The empire is already striking back. The freedom of the media is again under attack. Sherry Rahman’s Information Ministry is talking of a code of conduct for the print media. Few would believe Zardari’s denials that he is behind the refusal of PEMRA to give a license to Geo English. The attempt made by the Supreme Court to restrict TV reporting on the judges’ issue is also unthinkable without the knowledge of the PPP leadership.

There is a maxim which says that when someone wants to do something, they find ways, but when they do not want to do something, they find reasons. The PPP has given 14 reasons why it cannot stand by the commitment it made in the Murree Declaration. But there is actually only one reason, and that is that if the Chief Justice is restored without a constitutional amendment the PCO goes, and if the PCO goes, so does the NRO.

The plain fact is that the PPP is being used by Zardari for his personal agenda and that the party leadership, many of its members beneficiaries of the NRO, is going along. Let us be honest. The hotbed of conspiracies against the judiciary is no longer the Presidency. It is Zardari House, with the Presidency watching approvingly. The source of the evil is the NRO and those who want the judiciary restored would strengthen their movement tremendously if they come out openly against the NRO. They should not delay it any further.

The lawyers, judges and journalists have kept the flame burning through difficult times. They have been carrying a disproportionate share of the burden. The rest of the civil society can do more and should join them in preparing for the coming battle. The journalists from Geo and The News who refused to be intimidated by the warnings from the Supreme Court and Rehman Malik have set a fine example.

It is also time for the PPP to do some soul-searching. There are already rumblings of discontent among those in the party who feel that its policy on the judges’ issue only benefits a small coterie around Zardari and is against the national interest and the broader interests of the party. That is why Zardari is so distrustful of Aitzaz Ahsan. It is time for these upright persons to stand up and be counted. Raza Rabbani is one. You and others like you have an opportunity to make a difference, Raza Rabbani. Do it. Also in PML-Q, who knows, there may be those who are no longer willing to be tools of Musharraf and the establishment. If there are, they too should speak up. Now. The nation will remember them. It is time to make history, not deals. The next chance may not come for a very long time.

The writer is a former member of the Foreign Service. Email:

Source: The News, 20/5/2008


Source: The News, 20/5/2008

 Posted by at 12:04 pm

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