Shortly before Musharraf’s unceremonious ouster from the presidency last August, some PML-Q leaders suggested to him that he should cancel the NRO and restore the deposed judges before resigning. This advice was given not because these politicians wanted him to undo his vandalisation of the constitution before being booted out of office but in order to create difficulties for his successor and the new government. If Chief Justice Iftikhar Chaudhry was restored, they told Musharraf, he would become a problem for Zardari. Musharraf, who played by the same Machiavellian code as these politicians, decided not to follow this advice because, as he said afterwards, Zardari would not restore Iftikhar Chaudhry and Musharraf’s “enemies” (Zardari and Nawaz Sharif) would start fighting on this issue. And if Iftikhar Chaudhry was restored, Musharraf reasoned, he would not spare Zardari.
Musharraf was of course speaking from personal experience. In March last year, he concluded that an independent and impartial judiciary headed by a bold and upright chief justice like Iftikhar Chaudhry might stymie his plans for election as president for another five-year term. Therefore, he decided to remove the chief justice. In the first attempt, he tried to remain within the bounds of the constitution and failed disastrously. So, the second time around, he decided to scrap the constitution.
Zardari is now in a similar situation to that of Musharraf and is behaving similarly. Like Musharraf, he is afraid that an independent judiciary under Iftikhar Chaudhry might not “spare” him, to borrow Musharraf’s term. For Musharraf, the threat was that the judiciary might disqualify him for election, as he was still holding the office of army chief. Zardari’s fear is that the NRO might be annulled, resurrecting the dozen or so accountability cases against him for alleged graft. To guard against being dragged before the courts, he chose to go for the job of president rather than prime minister because the president enjoys immunity from criminal proceedings while the prime minister does not. But that might not be enough to protect him as an independent judiciary could hold him to be ineligible for the office of president on the ground that he is not a “graduate,” as the constitution requires. To stay in office, Zardari therefore needs a pliant judiciary and what could be better than the Dogar court which cleared his path to the presidency by first upholding the NRO and then declaring the “graduation” condition to be invalid?
When Musharraf was confronted last year with the prospect that the judiciary might hold his “election” as president to be invalid, he decided to remove the recalcitrant judges and appoint a hand-picked lot in their place, who then duly proceeded to uphold his scrapping of the constitution and his “election”. After Musharraf’s ouster, the new government was under the constitutional obligation, reinforced by their oath of office, to undo and rectify the illegal actions of Musharraf, the most glaring of which was his assault on the judiciary. The government not only failed to do that but instead tried to validate the purge of the judiciary through a “constitutional package” and when that failed, through a selective “reappointment” – for which there is no constitutional basis – of some hand-picked judges.
The Zardari government is now awaiting the triennial election to the Senate next March to push through a constitutional amendment of its liking. The expectation is that the PPP and parties allied to it will win about 40 of the 50 seats due for election, giving them the numbers needed in the upper house. In the National Assembly, the PPP is trying to win over the PML-Q to its side through offers of ministerial posts and other inducements.
Constitutional niceties have never stopped our rulers from doing their own thing and this government is no exception. Past governments have been getting away with it because the judges of the superior courts, who are supposed to be the guardians of the constitution, have usually sided with the government in order to keep their jobs. The judgement given by the Dogar court validating Musharraf’s second coup speaks volumes. The “extra-constitutional steps” taken by the then army chief were valid, the learned judges declared, because a situation had arisen “in which the running of the government in accordance with the constitution became impossible [and] for which the Constitution provided no remedy or satisfactory solution.” It somehow escaped the notice of the learned judges that the main reason for the 2007 coup was Musharraf’s fear that the Supreme Court was on the verge of invalidating his “election” as President.
Even by our low standards of constitutional propriety, the present situation is scandalous. Each member of the superior judiciary has been selected for political dependability and loyalty to the government and most of them, including the top man, have betrayed their oath to uphold the constitution. All important decisions having a political bearing are taken on cue from the government. Never was the standing and respect in which the judiciary is held as low in Pakistan’s history as it is now. They are rejected by almost the entire body of lawyers and the civil society. The name of the occupant of the highest judicial office in the country has become a byword for subservience and pliability. There is no impartial judicial instance to which an individual can turn in case the government beaches a constitutional provision. Yet, Zardari claims that there is no judicial crisis in the country, “except for a few judges delivering political speeches.” He is clearly showing the early symptoms of the same combination of hubris and detachment from reality which led to Musharraf’s downfall.
Woodrow Wilson, an American president in the last century, said that he would rather fail in a cause that will ultimately succeed than succeed in a cause that will ultimately fail. Those deposed judges who have now accepted reappointment obviously think differently. But the steadfastness and resolve shown by Iftikhar Chaudhry augurs well for the success of the cause.
The reinstatement of Iftikhar Chaudhry as chief justice is necessary not simply because his removal from office was wrongful or even because his restoration is essential to guarantee an independent judiciary. Even more important, it is needed to bury the misconceived notion, through which the Dogar court sought to validate Musharraf’s coup of 3 November, that an army chief may trash the Constitution whenever he feels that the situation demands such an “extra-constitutional” step.
Some of the lawyers have recently expressed their disappointment at the lukewarm support being extended to their movement by the PML-N. The recent role of this party has indeed been less than stellar. Nawaz Sharif seems to have been persuaded by his talented brother that holding on to power in Punjab is more important than working for the restoration of the judges. Moreover, Nawaz Sharif is himself more focussed at present on getting a favourable verdict on his candidature for the National Assembly. It has yet to dawn on him that if he continues on this path, his party will before long be out of power in Punjab and he will stay out of the National Assembly
The movement for the restoration of the judges has so far not achieved its objective because of the misconception that if Zardari is assured that the NRO will not be touched, he will agree to their reinstatement. Concession after concession has been made to him in the hope that he will be moved to do the right thing. The major bar associations have even shied away from holding Zardari personally responsible for the current imbroglio and instead blamed his minions, Farook Naek and Latif Khosa. They have been debarred from entry on the premises of the bar association, although their only sin is that they are trying to serve their master loyally.
The parliamentary elections in February and Musharraf’s ouster in August gave the country a unique opportunity to make a new political beginning under a civilian democratic dispensation in which the government, parliament and the judiciary each plays its part within its defined ambit. But the Zardari government’s effort to keep a pliant judiciary in order to protect the NRO has weakened the institutional structure of the state and deepened political divisions. This poses a threat to the viability of the political system and complicates the task of tackling the multiple accumulated economic and security problems bequeathed by nine years of military dictatorship.
The writer is a former member of the Pakistan Foreign Service.
Source: The News, 30/10/2008