The “dissociation” of the PML-N from the government’s proposal in the Finance Bill to increase the number of Supreme Court judges from the present 16 to 29 will not be enough to remove all the misgivings engendered by reports that several PML-N stalwarts are in favour of an expansion of the Court to accommodate the PCO judges. Ishaq Dar himself is said to have been the author of this proposal.
Nawaz Sharif could have set all doubts at rest by a clear rejection of the proposal but has instead chosen to maintain a studied silence on the issue. All this has given rise to fears that after the repudiation of the Murree Declaration by Zardari, the PML-N too may be poised to go back on its promise to the nation on the restoration of the judiciary as it was on Nov 2.
The confused stance of the PML-N is in keeping with the pattern of vacillation it has manifested from the beginning in its negotiations with the PPP on the judges’ issue. While Zardari has hardly budged from his position, the PML-N has been making all the concessions. First, it agreed to give constitutional protection to the NRO, although the party president himself had challenged the Ordinance in the Supreme Court last October. Second, the PML-N agreed that the restoration of the judges should be through a parliamentary resolution rather than a simple executive order. Now, there are reports indicating that at least some in the PML-N may even be agreeable to restoring the judges through a constitutional amendment. Third, the PML-N said at first that it would accept those appointed after Nov 3 as ad hoc, not permanent, judges. But now the party has gone along with a piece of legislation whose only purpose is to retain all of them as permanent judges.
The PML-N is also wavering on the question of what to do with Musharraf. Its position until recently had been that he must be impeached and tried for high treason under Article 6. But, strangely, the party has not reacted to those parts of Naek’s constitutional package which seek to indemnify Musharraf and amount to validating the PCO. This too is disquieting for those who have taken Nawaz Sharif’s public statements on bringing Musharraf to justice at face value.
In his remarks before the media on June 22, Farook Naek has now publicly confirmed what should have been plain from the beginning. The constitutional package, he said, would give “recognition” to the judgements given by the PCO judges. These judgments, if anyone has forgotten, include those validating the PCO (Nov 6 and Feb 14), declaring Musharraf’s election as president to have been in accordance with the Constitution (Nov 19) and upholding the NRO (Feb 26). In other words, the constitutional package would confirm Musharraf in the Presidency for five years and knock the bottom out of the case for his impeachment. If your legal team did not tell you about it, Nawaz Sharif, fire them. If they did, change your political advisers.
Zardari’s game plan is simple enough. He wants a constitutional amendment to give protection not only to the NRO but also to the judges who upheld the NRO. To get the necessary two-thirds parliamentary majority, the PPP needs the support of other political parties. The MQM is already with the PPP, and the ANP and the JUI (F) will also go along. But that will not be enough. For passage through the Senate, the votes of the PML-Q would be required. To get their support and that of the Musharraf camp, the constitutional package offers indemnity for Musharraf and the implicit validation of the PCO. With the PML-Q’s backing, the bill would also get a two-thirds majority in the National Assembly, even without the PML-N’s support.
The challenge facing the country is twofold: (a) to rebuild the institutions of the State badly mauled by eight years of the Musharraf dictatorship; and (b) to ensure, as far as possible, that no future adventurer dares to overthrow the Constitution at gunpoint. This requires the removal of Musharraf from the Presidency, transfer of executive power from the president to the prime minister, the establishment of an independent judiciary and the implementation of Article 6 of the Constitution. That means bringing to justice not only Musharraf but also those who abetted his subversion of the Constitution by upholding the PCO. By protecting Musharraf from impeachment and stalling on the restoration of the deposed judges, Zardari has become the main impediment to the achievement of both these goals.
When it comes to dissing Chief Justice Iftikhar Chaudhry, Zardari is now not far behind Musharraf. They both get away with it because, as a judge, Iftikhar Chaudhry does not respond to their mudslinging. Zardari claims that listening to the poor masses he can hear that their cry is for bread, not for bringing Iftikhar Chaudhry back. The choice, dear Zardari, is not between bread and Iftikhar Chaudhry. You know as well as anyone else that it is between an independent judiciary under Iftikhar Chaudhry and a subservient one led by Hameed Dogar. You want Dogar because he upheld the NRO (although he took care to do it only after the PPP had won the election); because he summarily removed the “graduation” condition for election to Parliament so that you do not have to go through the humiliation – understandable for a person of your wealth – of sitting for a degree examination to become prime minister; and because he is prepared to be your willing tool, now that you are the country’s new chief honcho.
No institution has received a more severe battering from Musharraf than the judiciary, or is in more dire need of repair. The deplorable state to which the PCO judges have brought the judiciary is obvious from their decision on June 23 to disqualify Nawaz Sharif for election to the National Assembly. Yet Zardari is hell-bent on perpetuating the puppet judiciary that Musharraf has installed. The bloated 30-member Supreme Court that the amendment in the Supreme Court Act now provides for will be an obscene monstrosity: a monstrosity because it will have a size unmatched by any other country of the world, and obscene because of its composition. Moreover, because the retirement age for Supreme Court judges is to be raised to a doddering sixty-eight years – to enable Dogar to have a full stint as chief justice – the country will have to put up with this Court long after Musharraf is gone.
After Naek’s statement that the constitutional package will give recognition to the judgements of the Dogar court, there should be no doubt that Zardari and Musharraf are working on a common agenda. By joining the coalition, the PML-N has not brought about the restoration of the judges, as was the aim when it teamed up with the PPP last March. The PPP can do without the PML-N’s support to stay in power and to pass the constitutional package. Its continuing to sit on the treasury benches therefore does not generate any pressure on Zardari to restore the judges or to impeach Musharraf. It only raises questions about the PML-N’s commitment to the restoration of the judiciary. If you, Nawaz Sharif, want the PML-N to regain the credibility it has lost because of its dithering on the judges’ issue, you should serve notice that if they are not restored in accordance with the Murree Declaration by a given date, the party will move to the opposition benches.
Here is some more unsolicited advice for you, Nawaz Sharif. First, if you really consider the PCO judges to be “naqli (impostor) judges” and a “tauhin (disgrace)” to the judiciary, as you have declared, then you must announce in unambiguous terms that you will not accept them in any capacity, ad hoc or permanent. Second, do not agree to any constitutional protection for the NRO. This ordinance lapsed in February and if Zardari wants it renewed, he should ask the government to present it as a bill for approval in our new “sovereign” Parliament.
The lawyers too should give up the pretence that the main source of the conspiracies against the restoration of the judges is Musharraf. The destination of the next march, long or short, should be Zardari House.
The writer is a former member of the Pakistan Foreign Service. Email: email@example.com
The News, 1/7/2008