Pakistan’s bizarre drama
by
Javed Hafiz |
After an unusually long dry spell, Pakistan recently received the much awaited winter rains and snowfall. And the rains were widespread. In some parts of the northern areas snow broke previous records. This brought some cheer to the farmers in particular and the citizens in general. For some days, Islamabad was chilly. However, the political temperature suddenly shot up when President Zardari appointed two judges to the apex court, against the recommendations of the chief justice. This decision of the president, contrary to the constitutional provisions, had to be reversed within days. The government in general, the president and the prime minister in particular, had to eat humble pie. However, it was a clear victory for the constitutional rule.
Pakistanis were on tenterhooks for four days. TV channels only focused on this issue. Overall expert and media opinion was against presidential decision. Effigies of Zardari and Nawaz Sharif were burnt by their opponents. Curiously, the two major political parties at the centre of this melodrama, remained coalition partners in Punjab. And while this coalition was intact, Sharif called Zardari the biggest threat to democracy. But why did the government create such hype and then beat a hasty retreat? Following lines will attempt to explain this riddle.
There were more than 70 vacancies to be filled in the superior judiciary. More than 20 vacant seats were in Punjab and this was the bone of contention. After the landmark judgment on the National Reconciliation Ordinance(NRO), the government was rudely reminded that an independent judiciary could indeed be very problematic. This strengthened its hidden desire to appoint some judges of its own choice. While consultation with the Chief Justice is mandatory under the constitution, the presidential advisers misguided their leader. The law minister, himself facing corruption charges, naturally would not feel comfortable with independent minded judges.
Advice given to the president was that consultation had been made mandatory under the 17th amendment, which itself was controversial. What the advisers chose to ignore was that the amendment will remain part of the constitution till it is abrogated. Then the prime minister said on the floor of the National Assembly that the judges had been restored under an executive order which had not yet been endorsed by the parliament. Now the fact of the matter is that according to the 31st July 2007 Supreme Court decision, the restored judges were never deemed to have been dismissed. They were merely stopped from performing their functions and that too illegally. So the prime minister’s veiled threat to the judges was devoid of any legal basis. He too was getting poor advice, it seems.
President’s decision to elevate Khawaja Sharif, the incumbent Chief Justice of the Punjab High Court, to the apex court was based on the criterion of seniority. This however is not mandatory under the constitution. The government circles thought that in case Khawaja Sharif did not assume charge of his new position, he would lose it. In case he took charge, the government could proudly say that its insistence on seniority had prevailed. Meanwhile, Justice Saqib Nisar, appointed Chief Justice Punjab by the President, would assume charge as for all high court judges that remains a coveted position. Chief Justice Nisar would then be requested to forward new names for filling the vacancies in his court.The government, it would appear, was not comfortable with the names sent by Chief Justice Khawaja Sharif. Justice Sharif enjoys good reputation of being independent and fair minded.
The Supreme Court threw a big spanner in the government works by declaring the official notification null and void. Chief Justice Sharif and Justice Nisar expressed full solidarity with the Supreme Court decision and stayed put in their positions.The government was flabbergasted by the public reaction, judges’solidarity and the media opposition. At this stage , a clearly embarrassed Prime Minister declared that anyone could make a mistake and that all mistakes could be rectified.
One political leader who kept his cool during this bizarre drama was Aitzaz Ahson.He told the president and the prime minister that they had been misled by their advisers. He then played the crucial role of a bridge between the two sides which appeared on the verge of a clash. He advised the Prime Minister to see Chief Justice Choudhry urgently even if it meant gate crashing into a dinner he was hosting that evening. The ice had started melting and political temperature started coming down. A nervous nation heaved sigh of relief.
Has the executive-judiciary row come to an end? I do not think so. Those who know Chief Justice Choudhry well are of the opinion that he will go to any extent to have the judgment in NRO case implemented. This is bound to create fresh tension.
Pakistani political leadership has yet to learn a lot. It must realise that delivery and performance are much more important than half cleaver moves . It should also realise that corruption has emerged as a real issue in Pakistan. A corrupt person may not, in future, be able to hide behind presidential immunity. The government has made a laughing stock of itself yet again. It should now focus on real issues of inflation and employment. People of Pakistan deserve a better deal. And three cheers for barrister Aitzaz Ahson, a sane voice in the ruling Peoples’ Party.
(Javed Hafiz is Pakistan’s former ambassador to the Sultanate)
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