May 222008

The ‘constitutional package’ is PPP’s response to the PMLN’s demand for the restoration of chief justice Iftikhar Muhammad Chaudhry and other inactive judges to the position of 2nd November 2007. While PMLN chief Mian Nawaz Sharif wanted to restore the inactive judges before any constitutional package, PPP co-chairman wanted to bring a constitutional package before restoring the deposed judges. PPP and PMLN are the two largest parties of the country and together they claim two-third support of the electorate. Therefore, if they can sort out their differences on the basic constitutional issues the chances are that Pakistan’s political miseries can come to an end. However, the manner in which the two parties have acted in the past, particularly after signing the Bhurban Accord on 9th March 2008, shows that the nation’s dream of restoring the inactive judges will soon turn into a nightmare. If PPP and PMLN have not been able to restore the inactive judges despite their written accord, it is hard to believe that they will agree on the contents of the proposed constitutional package. If the constitutional package had been limited to the issues concerning judiciary or to the matters already agreed between the two parties in the Charter of Democracy, it could be hoped that the matter could be amicably resolved. However, the PPP appears to have adopted a different approach. Instead of settling the delicate constitutional issues one by one, it has restricted itself neither to the Bhurban Accord nor to the Charter of Democracy but has taken upon itself the self-imposed ‘divine duty’ of clearing all the constitutional mess of past thirty-four years in less than thirty-four days and that too without any effective consultation with its known and unknown allies. Federal Law Minister Farooq H Naek has kept no secret of the fact that he has reviewed, if not revised, almost every article of the Constitution starting from article 6 to the Seventh Schedule. According to him, he did this job single-handedly without any input from anyone else, except the guidance provided by his co-chairman Asif Ali Zardari. He supposedly started this job after negotiations between PPP and PMLN for the restoration of the judges finally collapsed on 12th May 2008 and was able to accomplish this task within a week by 19th May 2008. In these seven days, he was able to read, consider, review and revise as many as seven schedules and 280 articles, plus over fifty articles which are not numbered separately. He made all these changes in accordance with the guideline provided by his co-chairman which may or may not be acceptable to other stakeholders. The 1973 Constitution came into force on 14th August 1973. Since its enforcement, it has been amended almost seventeen times. Two of these amendments namely the Eighth Amendment and the Seventeenth Amendment, which were coerced by General Ziaulhaq in 1985 and General Pervez Musharraf in 2002 amended as many as sixty-three and twenty-nine articles, respectively. Therefore, the restoration of the 1973 Constitution to its original form is undoubtedly a difficult task. It will be even more difficult to obtain consensus of all political parties on the proposed constitutional package. Even if the Constitutional Package has a smooth sailing in the National Assembly, it cannot get through the Parliament unless PMLQ, MMA and MQM support the amendment bill. Even if they accept the package, it cannot become a law until it is approved by President Musharraf. Mian Nawaz Sharif’s slogan was ‘restoration of judges’. Asif Zardari joined him in raising this slogan by signing the Bhurban Accord on 9th March 2008. In return for his ‘goodwill’ gesture, he made Nawaz Sharif to nominate his ministers in the federal cabinet so that they can take oath from President Musharraf accepting him as ‘constitutional’ head of state. After the PMLN ministers took oaths from the President on 31st March 2008 their countdown began to which I had referred to in my article “Musharraf’s Sinister Smile” published in these columns on 2nd April 2008. It is after that date that the PPP leaders started interpreting the Bhurban Accord in their own way. Therefore, what happened between Zardari and Sharif from 27th April to 12th May was nothing more than giving a decent ‘burial’ to the Bhurban Accord in the name of sorting out their differences. The Bhurban Accord is now dead for all practical purposes. Those who continue to believe that the inactive judges will still be restored to the position of 2nd November 2007 as envisaged in the Bhurban Accord are too innocent to understand the principles of our unprincipled politics. On the demolished edifice of Bhurban Accord, Zardari first promised to build a mausoleum of the ‘independence of the judiciary’. Soon he drifted away from this statement, like he had shifted from his stance on the Bhurban Accord, and made the restoration of the 1973 Constitution his new goal. He may have a noble heart and a pious intention behind this shift in his stand but the fact is that he has cleverly changed his position from restoration of the judiciary to the restoration of the 1973 Constitution. It will not be surprising if we see yet another shift in his stand in the coming days. All political parties have been demanding restoration of the 1973 Constitution to its original form with certain reservations from time to time. However, this issue is not that simple. In fact, our constitutional history reflects quite the opposite. Pakistan’s First Constituent Assembly took as many as seven years to resolve differences on the basic constitutional issues. When it was finally able to resolve these differences and the Draft Constitution was ready to be approved on 27th October 1954, Governor General Ghulam Muhammad dissolved the Assembly because he did not agree with the draft. Although the Second Constituent Assembly was able to produce the 1956 Constitution but it was not entirely acceptable to President Major General (Retired) Iskander Miraz. Therefore, he abrogated the 1956 Constitution and imposed martial law in the country on 7th October 1956. The basic constitutional issues which arose soon after the creation of Pakistan on 14th August 1947 were never resolved in the Islamic Republic of Pakistan. Therefore, when General Muhammad Ayub Khan enforced his Constitution on 1st February 1962, his successor Commander-in-Chief was ‘pleased’ to abrogate this constitution on 25th March 1969. Those who have studied Pakistan’s constitutional and political history know it very well that General Yahya Khan was about to ‘bless’ the Pakistani nation with his own Constitution when East Pakistan fell to India on 16th December 1971. Therefore, soon after taking over as President and Chief Martial Law Administrator on 20th December 1971 Zulfiqar Ali Bhutto embarked upon preparing his interim constitution which was approved by the National Assembly on 19th April 1972 on ‘take it or leave it’ basis. It took Zulfiqar Ali Bhutto and others over a year to prepare and approve the 1973 Constitution. However, Farooq H Naek, under the valued guidance of his co-chairman, has been able to reverse the Seventeen Amendments made in the Constitution during the past thirty-four years in just seven days. This is a big achievement for which he deserves appreciation. Nonetheless, it is hard to imagine that his constitutional package will be acceptable to PMLN and other parties. Apparently, PMLN will be given the choice either to accept the constitutional package or to let the deposed judges stay at their homes with full pay until they reach their ages of retirement. If PMLN accepts the package it will get the blame of legitimising Musharraf’s illegitimate acts of 3rd November. If it does not accept, the deposed judges’ issue will continue to be unresolved like the Kashmir issue. Mian Nawaz Sharif had not still forgotten the wounds of 12th October 1999 when President Musharraf has inflicted new injuries on him on 3rd November 2007. Therefore, despite their deals or otherwise, both Sharif and Musharraf are once again at dragger’s drawn. The role that Zardari is playing between the two can at the best be said to be a balancing act. If Mian Nawaz Sharif is standing on the East, President Pervez Musharraf is standing on the West. Making Sharif and Musharraf meet on the same constitutional package will be like making East and West meet on the same point. Although both Zardari and Naek may argue that they can make East and West meet but the famous British poet Rudyard Kipling (1865-1936) does not think so. He pondered on the issue and came up with his conclusion in his poem ‘The Ballad of East and West’ over hundred years ago. According to him: “Oh, East is East, and West is West, and never the twain shall meet, Till Earth and Sky stand presently at God’s great Judgment Seat”

Courtesy: The Frontier Post, 22/5/2008

 Posted by at 10:10 pm

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