Published in the 03 May 2008 issue of the Daily Times
http://www.dailytimes.com.pk/default.asp?page=2008%5C05%5C03%5Cstory_3-5-2008_pg3_5
Taimur Malik
The electoral results are a warning to the political forces that if they don’t deliver on their promises this time their fate won’t be any different from that of the PMLQThe suspension of Chief Justice Iftikhar Muhammad Chaudhry by President General Pervez Musharraf on March 9, 2007 started what has come to be popularly termed Pakistan’s black revolution. To quote eminent legal scholar Anne-Marie Slaughter, “in a world of colour revolutions, Pakistan’s was clothed in the sober hues of the law”.
The lawyer’s movement across the country and a courtroom battle led to Justice Chaudhry’s reinstatement as the chief justice on July 20, 2007. However, the fear of the unknown led to the imposition of emergency on November 3, 2007, heralded by the sacking of the majority of the superior judiciary, including the chief justice. The reasons for this may be many and varied but the general public believes only one: avoidance of unfavourable decisions by the presidency in important cases pending before the supreme court of Pakistan.
Nawaz Sharif’s PMLN made the restoration of the judiciary its main agenda point for the general elections and emerged as the second largest political force in the parliament. It joined hands with the single-largest party, the PPP, to form a coalition government and announced that judges would be restored within 30 days of the formation of the federal government. The self-imposed 30-day deadline passed on April 30, with no restoration in sight and the fate of the coalition government in doubt.
One of the most contentious issues being deliberated among the coalition partners is the demand by some political actors that the tenure of the chief justice be fixed for a certain number of years. The PMLN and the legal fraternity are not willing to discuss this issue at the moment as any such move would be seen as a presidency-led conspiracy to shorten Justice Chaudhry’s stay as the chief justice and will be hugely unpopular.
Moreover, there is also discussion of a minus x formula under which the restoration of the judiciary would be subject to the exclusion of certain judges from the new judicial set-up.
Important questions also remain regarding the fate of the judges appointed since November 3 to fill the vacancies created by the departure of the deposed judges. Will they remain judges of the superior judiciary and work alongside the restored judges? And how will the incumbent chief justice and his judges respond to any attempt by the government to reinstate the deposed judges?
However, the most complex issue concerns the mechanism to be adopted for the restoration of the judiciary. Many believe that a mere executive order by the prime minister is enough; others argue that a constitutional amendment, which requires a two-thirds majority vote in the parliament, is essential for undoing the effects of November 3.
In the eventuality of a deadlock between the PPP and the PMLN on this issue, the PMLN is likely to make the politically correct move of leaving the coalition government and could even show courage to sit on the opposition benches. In this scenario, the PPP may work with other parties including the MQM, JUIF, ANP and even the Musharraf-backed PMLQ to ensure its stay in power.
However, political pundits are already predicting that such an arrangement would not last very long and any fresh general elections would see a huge increase in the political strength of the PMLN and its allies.
From the legal fraternity’s perspective, the restoration of the judiciary is essential for strengthening the rule of law and attaining independence of the judiciary in Pakistan. Even otherwise Asif Zardari and his PPP don’t have a choice. They have to agree on the restoration of the judiciary to save their political future, with the wheat shortage, electricity crisis and fuel price hike remaining big political challenges.
Moreover, in the absence of the restoration of the judiciary and the departure of the PMLN from the treasury benches, Pakistan may not be patient enough to wait to appreciate the results of the government’s policies for economic betterment and development in the long run.
Nevertheless, in an ideal outcome, the PMLN may agree to support the PPP with respect to a constitutional package on judicial reform in return for its agreement to restore the judiciary in the first stage before introducing the constitutional package in the parliament.
There are two fundamental questions. First, can a president who is also a serving chief of army staff, as Musharraf was then, suspend the chief justice of Pakistan without affording him due process?
Second, can a chief of army staff who is also a presidential candidate defending his candidature before the supreme court of Pakistan, while awaiting final judgment from the apex court, impose emergency in the country, sack a majority of the superior judiciary and detain the chief justice and his family at their residence for many months?
The results of February’s national elections present a clear referendum on both these points and represent the popular opinion that this is not acceptable. The electoral results are also a warning to the political forces that if they don’t deliver on their promises this time their fate won’t be any different from that of the PMLQ.
Sharif seems to acknowledge this reality. Pakistan will be better off if the PPP also recognises the writing on the wall.