Restoring the Judiciary - An impending clash between President and the Parliament?
Has the moment arrived? By Imtiaz Alam
The News, March 11, 2008
Asif Ali Zardari and Mian Nawaz Sharif have made history by entering into a grand coalition of national reconciliation and with their decision to restore the deposed judges through a parliamentary resolution within 30 days of the formation of their combined government. This ought to be non-indemnification of the extra-constitutional measures taken by the COAS-president on Nov 3. Aren't we asking too much of a divided judiciary to play the catalyst in reversing civil-military relations?
The most reassuring aspect of the historic development is that despite their differences the PPP and the PML-N have agreed to forge the unity of opposites in mainstream politics. Responding to the mandate that necessitated the unity of all democratic forces against authoritarian forces, they had no option but to unite their forces to turn a hung parliament into a strong sovereign body. With the support of over 52 per cent of the electorate and two-thirds of National Assembly seats, the PPP-PMLN-ANP alliance will provide a rock-bed for a grand rainbow coalition against the king's parties, the PML-Q and the MQM (23 per cent and 7.4 per cent of votes, respectively). The JUI and independents have decided to join this coalition while the MQM may be joining it soon.
The fact of the matter is that by bulldozing his illegitimate election through the outgoing assemblies and his Nov 3 action, Mr Musharraf left no choice for a democratic opposition. No parliament worth its salt could imagine to indemnify his Nov 3 PCO-emergency and demolition of the superior judiciary.
Realising the sensitivities of transition and the limitation of its mandate, the PPP was inclined to play it cool while remaining firm on its principled democratic agenda driven by the charter of democracy. It rightly focused on forging unity among the major democratic and regional forces, even though if it were to bring changes in its tactical plan. The PPP's preference was first to consolidate the coalition and cover the flanks of a vulnerable parliament and then take a step–by-step course of transformation--i.e., transfer of power from the presidency to the cabinet and making parliament sovereign vis-a-vis the establishment and, subsequently, allowing the judiciary the independence it deserved. But things don't happen as you wish.
There are many questions that will arise before the revived Supreme Court under Chief Justice Iftikhar Chaudhry can pass a judgement on the destiny of Musharraf. Say, (i) if the Supreme Court under Justice Dogar throws that out; (ii) even if the Supreme Court as it existed on Nov 2 starts its work where it had left, what is the guarantee that it will do the needful? As two vacancies have to be filled, and despite showing the door to the judges who filled the vacancies, a majority of the Supreme Court will still be in the hands of those who validated Nov 3. Above all, where will the armed forces stand when the Supreme Court decide Musharraf's fate?
No doubt, the restoration of the judiciary will help rectify a highhanded, shameful act and redeem the honour of the deposed judges. They may seal the fate of Musharraf. The more important question of independence of the judiciary, eclipsed by the auxiliary issue of restoration of the judges to honour juridical independence, will have to be addressed according to the charter of democracy. The CoD visualises a high-powered commission, not to be headed by a chief justice who took oath under a PCO, to recruit judges through a bipartisan process that is going to bypass all the current senior judges who took oath under one PCO or the other.
Although the decision to restore the judges will further enhance the credibility and rating of the next parliament, it is still a digression from the principal contradiction--i.e., between parliament and the presidency-cum-GHQ or the establishment. The presidency has been a tool in the hands of the establishment as a check on the elected representatives of the people or, to be precise, against the elected prime minister. The 1973 Constitution could not be abrogated by the coup-makers and they, in complicity with the judiciary, had to bring 58-2(b) to keep the parliament at the mercy of the president who watched the interests of the civil and military bureaucracy during the civilian rules of the 90s. The troika of president, prime minister and COAS formed an inherently conflicting power structure under which each prime minister became a victim of the establishment through the presidency.
The CoD quite elaborately focuses on the transformation of civil and military relations. It brings the armed forces, the intelligence agencies, their budgets and the nuclear command under the control of the cabinet's committee on defence and security under the prime minister, not the president. It means that the "national command" to which General Kayani referred in his address to the recent corps commander meeting for adherence is already under question. The grand coalition contemplates a national command under the prime minister, not the president. Is this parliament destined to accomplish this great task amid an ongoing war against terrorism? Is parliament being pushed to an adventurous course? Or the moment has come to say enough is enough?
The writer is editor current affairs, The News, and editor South Asian Journal. Email: firstname.lastname@example.org
For an Alternative viewpoint, see
Politics of revenge - By Ahmed Quraishi, The News
Image from: Pakistaniat.com