The constitutional package worked out by Farook Naek — under the “guidance” of Zardari, as the law minister never tires of pointing out over and over again — has still not been made public. The text of its 62 clauses was not provided even to the PPP Central Executive Committee at its meeting on 24 May, though that did not stop the CEC from giving its approval.
The PPP co-chairman and the law minister have so far only selectively revealed to the public those parts of the package on which there is broad national consensus, like a cut in the president’s powers; or those which can ensure wider parliamentary support, like the proposal to rename the NWFP Pakhtunkhwa, as demanded by ANP. The country, however, has been kept in the dark on the proposals made in the package on the three main issues of public concern: the restoration of the deposed judges, the question as to whether Musharraf will get indemnity for the unconstitutional steps he took on Nov 3, and the fate of the NRO, which completed its four-month life on Feb 5 and therefore stood repealed from that day under Article 89 of the Constitution.
For Zardari, the main point of the constitutional package is that the NRO should become permanent law and should be placed beyond judicial review. This can best be achieved if amendments made to the Constitution under the PCO (in particular Article 270AAA, which declared that all ordinances like the NRO in force on the date of the withdrawal of the emergency will remain in force until repealed), and the judgements given by the PCO judges are validated and Chief Justice Iftikhar Chaudhry is either kept out or his powers and tenure are curtailed. This is unacceptable to the PML-N as it would amount to giving legitimacy to Musharraf’s second coup and his “election” last October. There is little meeting point between these two positions and both the PPP leadership and PML-N should be aware by now that an agreement between them on a constitutional package and a restoration of the judges is not achievable. Yet they are going through the motions of a dialogue, as neither side wants, for the present, to be blamed for the final break-up of their coalition.
On the other hand, there is plenty of common ground on constitutional issues between the PPP leadership (though not necessarily the party as a whole), the PML-Q and the MQM. They are all in favour of indemnity for Musharraf (for the PPP leadership a fair price for saving the NRO) and against a restoration of the pre-Nov 3 judiciary. They should have no difficulty in agreeing on the text of a constitutional amendment under which Musharraf gets indemnity, Zardari gets constitutional protection for the NRO and the PCO judges keep their jobs, while Iftikhar Chaudhry is kept out in the cold. With the support of the PML-Q, the MQM, the ANP and the JUI, such a bill would also be able to muster the two-thirds majority in both houses of Parliament that is needed for its passage.
The only problem is that such a law would be deeply unpopular and the matter would not end there. Musharraf is probably the most hated political figure in Pakistan’s history. The demand for the restoration of the judges, the chief justice in particular, was never stronger. And a more obnoxious and discriminatory law than the NRO is hard to imagine. The PPP leadership must be aware that it has already lost public support because of its “working relationship” with Musharraf and its obstructionist tactics on the restoration of the judges. It certainly knows also that validating Musharraf’s second coup and his “election” would be extremely unpopular and could even split the party. To make the indemnity palatable to the public, it is therefore being combined with a cut in the president’s powers. Zardari has recently also been forced to take some other steps to limit the damage done to the party’s standing by his stonewalling on the judges’ issue. His warning to Musharraf that he could be impeached was one such step. Another purpose of this statement was probably to get Musharraf on board by sending him a signal that if he does not accept a cut in his powers, there could be worse in store for him.
If the aim of presenting the constitutional package was to divert attention from the public demand for the restoration of the judges, the move has backfired. Far from consigning this issue to the backburner, as the PPP leadership had hoped, the outrage at the attempt to foist the Dogar court permanently on the nation has made the restoration of the judges the most urgent item on the national political agenda and galvanised the lawyers’ movement and civil society. It is now abundantly clear that without the restoration of the judges, the government will not be able to focus on the other pressing political and economic challenges facing the nation.
After Zardari’s somersaults on the judges’ issue, it is clearer than ever that the main purpose of the constitutional package is to save the NRO. The crux of the matter is that the NRO can only survive if the PCO is validated, as the PCO judges have done. That is why Zardari has been insisting on a constitutional package that will give indemnity to Musharraf (which is really another word for validation of the PCO) and confirm the PCO judges. As long as Zardari gets what he claims as his pound of flesh (i.e., the NRO), he does not care at what cost, because that price, in the form of a permanent weakening of the judiciary and other state institutions, will be paid by others, in this case the Pakistani nation. When the PPP says that it would like to have the constitutional package adopted before deciding what to do about Musharraf, what it really means is that it wants to have the NRO under the belt first and then it would be ready to talk about (or forget about) Musharraf.
It is significant that after the PPP’s reneging on the Murree Declaration, the civil society is now increasingly demanding not only that the deposed judges be restored but also that Dogar and the other PCO judges must go and be made accountable for taking oath under the PCO and upholding Musharraf’s second coup. Chief Justice Iftikhar Chaudhry has publicly expressed his confidence that these judges would be punished. However, the PPP leadership continues to coddle them. To protect them from the charge of high treason under Article 6, Farook Naek’s constitutional package includes a clause that only future judges who validate an abrogation of the Constitution would be guilty of this crime, but the present violators of their oath would not be held answerable.
Article 6 of the Constitution made it an act of high treason for any person to abrogate the Constitution. Since it was adopted, the country has gone through three military coups d’état but this article has remained a dead letter because twice the military dictators got their actions indemnified by Parliament. The Eighth Amendment (1985) gave indemnity to Zia-ul-Haq and the last Parliament did the same for Musharraf’s October 1999 coup in the Seventeenth Amendment (2003).
Our newly elected Parliament will shortly be called on to take a decision to indemnify Musharraf for his second coup. On the previous two occasions when military takeovers were indemnified, the judiciary had already validated the actions of the military dictators. This time, it is different. The judges have shown the way by standing up to an army chief who behaved like a gunman who has run amok. They refused to do his bidding and stood by their oath to preserve, protect and defend the Constitution. Honourable members of the Senate and National Assembly of Pakistan, the nation expects you to do no less. Your task is much easier than that of the judges because Musharraf no longer wields the gun. Those of you who belong to the PPP will have to choose between you loyalty to Pakistan and to the party co-chairman. Choose Pakistan. If you give Musharraf indemnity or safe passage, you will be considered his accomplices and the judgement of history will be very harsh. Make no mistake about it.
The writer is a former member of the Foreign Service of Pakistan
The News, 3/6/2008