Jun 082008

By Anwar Syed

MAULANA Fazlur Rahman said at a press conference on May 26 that General Musharraf’s actions of Nov 3, 2007, including the dismissal of certain judges, could not be undone by the adoption of a National Assembly resolution and the issuance of an executive order.
If that were feasible, he added, we might ask for his coup of Oct 12, 1999, also to be undone and Mr Nawaz Sharif’s government restored.

The procedure for reinstating the deposed judges has become controversial. One group of jurists has maintained that a resolution of the National Assembly requiring reinstatement, followed by an executive order, would be sufficient. Others contend that a constitutional amendment is needed to open the way for their reinstatement. Maulana Fazlur Rahman, though by no means an expert in these matters, has chosen to side with this latter group.

Let us suppose that the National Assembly passes the resolution under reference and the prime minister issues an executive order to implement it. What happens then? An interested party will probably file a writ in the Supreme Court, challenging the legality of the resolution and the executive order. The present court, largely the outcome of Gen Musharraf’s proclamation of emergency and the PCO of Nov 3, has already validated these actions of his along with the dismissal of certain judges and appointment of others to replace them. The likelihood is that it will hold the Assembly’s resolution to be unlawful, null and void.

It is argued, on the other hand, that General Musharraf’s imposition of emergency rule was unlawful and so were the actions he took under its authority, including the appointment of judges to replace the ones he had removed. This school of thought argues further that the present court lacks legitimacy and cannot be regarded as a properly constituted organ of the state. Its verdicts are therefore of no consequence.

A distinction has to be made here between de jure and de facto. The present court may not meet the test of legitimacy but it is de facto supreme: it is hearing cases and its decisions are to be enforced. For practical purposes the constitution, as amended by Gen Musharraf, is the law of the land. This situation will not change until a constitutional amendment is passed, which revokes the PCO and certain specified actions taken under its authority, including the dismissal of judges, and repeals the Seventeenth Amendment.

In the aforementioned press conference Maulana Fazlur Rahman also stated that the PPP and PML-N did not see eye to eye on issues relating to the judges (a fact now well known). Mr Zardari says he will provide for their reinstatement in a constitutional amendment (consisting of 80 items) that will be moved in parliament on an undetermined date. Mr Sharif wants a National Assembly resolution requiring reinstatement now.

Mr Zardari does not want to go Mr Sharif’s way. He may be apprehensive that the reinstated judges will invalidate the National Reconciliation Ordinance (NRO), which allowed the withdrawal of criminal cases pending against him. If that does come to pass, these cases might come back to haunt him.

The Assembly resolution would mollify Mr Zardari’s coalition partners. But it may turn out that the desired resolution will not do and a constitutional amendment is, after all, needed. To be on the safe side, an amendment dealing only with the judges may be moved at the same time that the resolution is. Still another amendment to protect the NRO and implement all the other 79 items in Mr Zardari’s bag may be introduced at some appropriate time.

Nawaz Sharif has threatened to join the lawyers’ long march if the resolution he wants is not moved in the Assembly very soon. It is possible that Mr Zardari will yield. The greater likelihood is that he will keep up his preference for dealing with the judges by way of his 80-item constitutional package. It will have to be taken to the Assembly after the budget has been passed. Let us see what kind of a time frame that will require.

If the prescribed rules of procedure are followed, the budget will go to a committee, which will apportion segments of it to sub-committees, each dealing with the estimates of a specific department. It will go over its package item by item, consult with departmental officials, and make recommendations.

These segments, with each sub-committee’s recommendations, will eventually reach the parent committee, which, after some additional work, will send the document to the ministry of finance. The latter will finalise its proposals and bring them back to parliament. The Houses will debate and vote. All of this will easily take a couple of months.

A PPP spokesman has recently said that the budget, to be presented on June 11, will be passed by the end of the month, that is, in less than three weeks. If this is how the PPP government proceeds, parliamentary consideration of the budget will have been perfunctory, meaning that parliament will not have taken its most important function seriously enough. It will also mean that the PPP’s constant talk of the sovereignty of parliament is gibberish, merely ritualistic sloganeering.

After the budget session, members of parliament will probably go home to take care of their other obligations. They will return a few weeks, possibly months, later to do more work. If the judges’ issue is presented to them as part of an 80-item package, it is hard to say how much of the document they will accept and how long they will take to reach a decision. If parliament follows its own rules of procedure, the process could take months to complete.

Unless Mr Zardari and his associates are enthusiastic and have a sense of urgency about the package (which they may or may not have), the proposed amendment may fall short of a two-thirds majority support in the Senate (if not in both Houses) and fail, in which case the deposed judges will stay deposed. This outcome will suit Mr Zardari well.

It is possible that all of this has been a part of his design all along. He is emerging as an expert in killing projects with a blunt and rusty knife one side of which is indecision and the other inaction. Knowing that time can be a silent erosive, he may have been expecting that the powerful tide of public opinion in favour of the judges will one day subside and the issue of their reinstatement will eventually go away.

The writer, professor emeritus at the University of Massachusetts, was until recently a visiting professor at the Lahore School of Economics.


Source: Daily Dawn, 8/6/2008

 Posted by at 11:54 am

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