The final countdown
Saturday, May 17, 2008
The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School
Asif Zardari asserts that judges cannot be restored through an executive order for (a) the Dogar Court can stay such order thus creating a constitutional
crisis and (b) removing the midnight appointees of General Musharraf through an executive order would be wrong, just like removing the constitutional judges
was wrong, and that two wrongs don’t make a right. The arguments don’t really wash. It has been asserted in this space before that if a stay order issued
by the existing court is a real deterrent, then this entire debate is redundant. For the Dogar Court has already validated all the Nov 3 actions of the
general, including that of dismissing judges. Second, the rationale for restoring the Nov 2 judges is that the tenure of constitutionally appointed judges
is protected and they can only be removed pursuant to Article 209 proceedings, on the advice of the Supreme Judicial Council.
The deposed judges have been unlawfully restrained from performing duty as the mandatory removal process was not followed in ousting them. Thus they are
still judges and can be allowed to resume duty with an executive order acknowledging the same. The Article 209 protection doesn’t apply to the general’s
post-Nov 3 appointees, because they are not constitutionally appointed judges. The PPP, under the leadership of Mr Zardari, has refused to abide by this
majority opinion of the legal fraternity. Is it a coincident that the PPP has chosen to follow a minority and largely discredited legal opinion on the
proper mode of restoring judges pandered by the likes of Sharifuddin Pirzada and Hafiz Pirzada who are responsible in large part for our convoluted constitutional
jurisprudence? According to this opinion the general’s unconstitutional actions cannot be undone without a constitutional amendment or else we will set
a legal precedent that will have horrendous consequences for the nation.
What consequences are we talking about? If Hafiz Pirzada’s advice is adhered to, the precedent we are setting is that any unlawful changes made to the
constitution by a dictator by use of force will automatically attract the protection of the constitution, and can only be undone by meeting the high threshold
set to amend the constitution. The idea that if judges are restored through an executive order, the executive will in future be able to do all sorts of
crazy things through executive orders is simply preposterous. The executive order will simply be reiterating the twin constitutional principles that that
under no circumstance can (i) the constitution be amended without a two-thirds parliamentary majority required by Article 239 of the constitution, and
(ii) constitutionally-appointed judges be removed without following the process mandated by Article 209.
It is hard to believe that despite being counseled by Fakharudin G Ebrahim, Aitzaz Ahsan, Raza Rabbani and the legal opinion of sixteen judges including
almost all former chief justices, the PPP is still genuinely confused about the legal issues underlying this debate. Why then is this popular national
party jeopardizing its mandate by flip-flopping on the judges’ issue? A few explanations come to mind.
First, the negotiations between General Musharraf and Benazir Bhutto came to fruition in Dubai in the backdrop where the general was feeling the heat due
to the lawyers’ movement and wanted some respite. It is possible that some explicit promises with regard to the PPP supporting the general against Chief
Justice Iftikhar Chaudhary were made part of this deal. As this deal was brokered by the general’s western allies and supported by the UAE rulers — and
Mr Zardari duly credited the US for getting the general to shun his uniform on BB’s insistence — PPP’s current leadership might be convinced that reneging
on a promise made to the US and PPP’s other foreign sponsors will carry more political cost than backtracking on a popular domestic issue and breaking
a promise made to the people of Pakistan.
Second, there is a structural change underway in the composition of the establishment at the moment. Traditionally, the judiciary as an institution was
part of the establishment, and the PML-N and its successor political forces comprised the establishment’s B-team. And the PPP might have a point when it
complains that the judiciary has in the past applied the constitution more enthusiastically when the outcome favoured the PML-N as opposed to the PPP.
After March 9, 2007, however, the judiciary reluctantly decided to confront the egregiousness of the establishment and their divorce was finalized on Nov
3, 2007. Simultaneously, having learnt lessons from its time in exile and from suffering persecution at the hands of the Musharraf regime since Oct 12,
1999, the PML-N has also emerged as an anti-establishment party for the first time since its inception.
These two happenings have created a vacuum that the establishment wishes to fill by (i) resurrecting a court (that includes its post-Nov 3 midnight appointees)
committed to the status-quo, and (ii) co-opting a ‘reconciliation-seeking’ PPP that can function as the political ally of the establishment and will be
allowed to rule in return within the four corners of policy areas delegated to political governments during democratic times. This is certainly not another
grand conspiracy theory. We can replace the word ‘establishment’ with the term ‘status-quo forces’. The point being made is that the polity is undergoing
a structural transformation and the traditional actors that functioned as agents of status quo have opted to become forces of change.
Consequently it is extremely tempting for the PPP — which has ruled for a maximum of five years over the last three decades despite being the largest
political party of the country — to fill the pro-status quo slots that have opened up due to the coup of the judiciary and the PML-N, in return for being
treated as the favoured political entity by the establishment and overtly supported by the Dogar Court. The fact that the current PPP leadership is dominated
by individuals who have no popular roots in the masses and don’t seem beholden to Bhuttoism or the ideology of ‘roti, kapra aur makan’ — which by definition
is pro-people and anti-establishment — exacerbates the danger of the PPP chewing on this bate. Would it not be a grave tragedy if the predominant lessons
that the PPP has learnt in its 40-year existence turns out to be that (i) the desires of the US administration must trump wishes of Pakistani people when
the two are in conflict, and (ii) not getting on the wrong side of the establishment even at the cost of compromising principles makes for better politics?
The judges’ issue is one that has stirred the collective conscience of our nation like none other in recent history. What is at stake foremost is whether
we as a nation will side with rule of law or politics of expediency. The return of judges will not function as elixir for all the maladies afflicting Pakistan.
But if we squander this opportunity it will take at least a decade to raise another breed of judges who might muster the courage to stand and fight to
liberate the judiciary from the crutches of the establishment.
Second, many of Pakistan’s problems spring from the imbalance in the distribution of state authority between civil and military institutions. This is a
time in our history when the military needs to demonstrate its neutrality toward politics due to political compulsions and to protect its own institutional
interests. If our political elites fail to regain some of the lost ground in these circumstances, we might have to suffer another reckless dictator to
create overwhelming public support for such change.
And third, the restoration of judges brought about by dint of a freedom movement supported by the nation will be tremendously emancipating psychologically.
For too long have we given too much credit (or discredit) to the ‘forces that be’ for controlling our fate. But returning our judges against the wishes
of the establishment and its foreign patrons, we could prove to ourselves that we are not puppets but a sovereign people who have control over our present
and our future.
The issue of restoration isn’t merely a political dispute but one of individual and collective choices that is defining the personal identity and moral
standing of the actors involved. The lawyers’ movement has been advocating that the promise and practice of law must be brought into closer alignment and
this modest goal resonates will many around the country. The judges should be restored and can be restored but not without a forceful street movement that
forces our ruling political elite to acknowledge that people are not willing to allow the country to recede into another round of musical chairs between
conviction-less politicians and generals.
And to achieve that the lawyers must boycott all courts – not just higher courts — for at least a few weeks to bring the judicial system to a grinding
halt. It is time to move from the go-slow phase to the pens-down phase at this decisive stage of this historic movement. Without this and a forceful street
movement the deposed judges might be history.