“As for the others, their life, so far as they knew, was as it had always been. They were generally hungry, they slept on straw, they drank from the pool, they laboured in the field; in winter they were troubled by the cold, and in summer by the flies… Sometimes the older ones among them racked their dim memories and tried to determine whether in the early days of the Rebellion…things had been better or worse than now. They could not remember… Only old Benjamin professed to remember every detail of his long life and to know that things never had been, nor ever could be, much better or much worse – hunger, hardship and disappointment being, so he said, the unalterable law of life.”
The above quote from George Orwell’s Animal Farm, a brilliant satire on the Russian Revolution and its aftermath, seems to be singularly and painfully true of the state in which the people of Pakistan find themselves today. Irrespective of which ruler remains in power, who leaves it and who takes over, the lives of millions continue to be plagued by want, hunger, fear and despair. An autocratic ruler gets replaced by a megalomaniac and the latter by another dictator. The more things change, the more they eerily remain the same!
Pakistanis were allowed a brief glimpse of sunshine before their jubilation and rejoicing were rudely interrupted by the gathering clouds of yet more uncertainty, political wrangling, power plays and coalition infighting. Once again iron-clad promises were broken as hopes and dreams shattered on the proverbial shores of ‘reality’, ‘pragmatism’, ‘reconciliation’ and realpolitik! The judges were not to be restored as the curtain fell on the obstinate dictator who was to be given ‘safe passage’, an ‘honourable exit’ and indemnity. The brief revelling came to an abrupt end as public aspirations were drowned in the cacophony of new sounds about the next president. The looming danger of another catastrophic decision by the motley crew, now drunk with power, became real with frantic moves to install a controversial figure in the presidency. There seems to be little respite for Pakistanis reeling under the blows of high inflation, terrorism and the hard to arrest economic downslide.
The quick restoration of the deposed judiciary after Musharraf’s much-celebrated exit would have injected some hope into a depressed polity. It would have continued the momentum gained by forcing Musharraf to call it a day. The sense of victory that it would have generated may have helped people experience some mirth in the midst of the daily burdens of existence in the face of terror attacks and bread and butter issues. But the much-awaited restoration was once again mired in controversy, disagreement and became a victim of backtracking, dithering and vacillation. The minus-one, minus-two formulas began to be floated reflecting the PPP’s inveterate aversion to the restoration of Iftikhar Chaudhary. Independent judges are a threat not merely for dictators. They are also unacceptable to elected leaders because of the proclivity to challenge those in power over breaking the rules, violating the constitution and providing protection to high-level criminals and crimes.
To preclude the possibility of the return of Justice Iftikhar, the PPP has invented the idea of “politicised” and “non-politicised” judges in the constitutional package floated by its legal experts. The proposed changes in Article 209 show that while the package offers no definition of “politicised” or “non-politicised”, it seems that the intention is to paint Iftikhar Chaudhary as “politicised” since he can boast of the support of specific political parties that are either rivals of or opposed to the PPP. On the other hand, the judges who validated the unconstitutional acts of November 3, 2007 are not accused of being “politicised”, despite their capitulation to the dictator’s demands, and a great deal of energy has been expended on the effort to retain them. Judges who support the PPP and the erstwhile dictator are seldom branded as “politicised”; on the other hand, judges who took a stand and pronounced the November 3, 2007 actions as illegal and unconstitutional have been accused of being “politicised” because of their alleged support to the PML-N. This reflects double standards on the part of the ruling party which could either define both sets of judges as “politicised”, or neither group should have been labelled in this vague and discriminatory manner.
By proposing the insertion of Article 270CC in the constitution, the government plans to indemnify Musharraf’s illegal removal of the judges, for the package refers to the deposed judges as those who had ceased to hold office as a result of the Oath of Office (Judges) Order of 2007. Since the COAS was not authorised to remove the judges they cannot be deemed to have been removed and therefore never ceased to hold office. They merely require assistance in returning unimpeded to their official duties through an executive order overriding the previous illegal one. Furthermore, amendments proposed in Article 184, which empowers the SC to take notice of questions of public importance with reference to the enforcement of fundamental rights, appear to be designed to prevent the Chief Justice from taking actions to protect public interest, especially in the light of the deposed CJ’s propensity to take suo moto actions to ensure the accountability of powerful public figures. Similarly, clause 2 of Article 179 seems tailor-made to exclude Iftikhar Chaudhary from restitution as it purports to limit the CJ’s term (possibly to three years) and is applicable retrospectively. A weakened, tamed and subordinated judiciary seems to be in the making to enhance executive control of the judiciary.
The space of public discourse is also awash with talk of indemnity to Musharraf’s unconstitutional acts. According to the proposed insertion of Article 270AAA “…the Ordinances, except those specified in the Sixth Schedule, made between the 12th day of July, 2007 and the 15th day of December, 2007 (both days inclusive) and actions taken there under shall be deemed to have been validly made and taken by the competent authority notwithstanding the expiry of period of four months specified in Article 89 and notwithstanding anything contained in the constitution shall not be called in question in any court or forum on any ground whatsoever.” The period specified here covers the National Reconciliation Ordinance passed on October 5, 2007 and the PCO of November 3, 2007. This indemnification would wipe clean not only Musharraf’s slate but also absolve Asif Zardari of all acts committed before October 12, 1999. It is a classic case of ‘you scratch my back, I will scratch yours’. An independent judiciary could potentially have struck down such an amendment for being contrary to the fundamental rights section of the constitution. Hence, such a watchdog is best eliminated.
A number of bewildering proposed amendments in the constitutional package now make sense with the announcement of Asif Zardari as the PPP’s candidate for the presidency. If Article 45 were to be changed as envisaged, the president would have the power to “indemnify any acts whatsoever”. The new president could in effect do anything he liked and indemnify it himself without the help of the courts or parliament. Similarly, the change envisioned in Article 243 which pertains to the appointment of services chiefs would remove the condition of consultation with the prime minister. The president would be able to appoint military chiefs of his choice without the necessary input by the PM. In the same vein, a critical change in Article 177 would mean that the president would no longer need to consult the sitting chief justice in making appointments to the superior judiciary. This further empowerment of the president, unencumbered by the restraints from an independent judiciary, would pave the way for civilian authoritarianism and autocracy.
We seem to have come full circle and back to square one. The rays of hope that shone exactly six months after the February 18 elections, in the departure of the abhorred dictator, are now dimmed and gone. One can only hope that our rulers would desist from mimicking praetorian rulers by making the prophetic Orwell’s last lines in Animal Farm come true: “The creatures outside looked from pig to man, and from man to pig, and from pig to man again: but already it was impossible to say which was which.”
The writer is an independent researcher on social development. Email: email@example.com
Source: The News, 28/8/2008