Doing it right, or doing it now!: Farahnaz Ispahani

Doing it right, or doing it now!: Farahnaz Ispahani
The News, Tuesday, April 29, 2008

On the 19th of February when election results started pouring in from every corner of Pakistan, my friends in the print and electronic media immediately started saying that "the reason the PPP did not take Punjab was because it's stance had not been clear on the judges' issue." This seemed very illogical to me because Shaheed Mohtarma Benazir Bhutto – the leader of the Pakistan People's Party, and the Manifesto that she had approved in her lifetime – was crystal clear on this score.

The Manifesto stated that Pakistan has to mature and grow beyond its reliance on individuals to save the day and instead concentrate on institution building. It further clarified that the need of the hour was to carve out rules, regulations and laws and traditions to bring Pakistan back on a democratic path and to ensure the very survival of our nation. Without that being the main agenda of any newly and democratically elected government there will be no future for us.

She had articulated her point of view numerous times with the main thrust of her argument being that Pakistan needed to safeguard its institutions from any future eventuality of their falling into the hands of individuals and the regressive forces in our permanent establishment. Bibi Shaheed was loud and clear on this – we must allow the laws of necessity to die, once and for all.

However, once the Pakistan People's Party actually started working to implement its manifesto and the vision of its leader, the party and its co-chairman Mr Asif Ali Zardari started being attacked by the media and some sections of civil society. Their previous argument was reversed with a new theme that the reason that the PPP garnered the majority of votes in this last election (some three million more than the nearest rival) was mainly due to the judges' issue/judicial crisis, and any minute wasted in restoring the judiciary to the Nov 2, 2007, position would be a breach of trust.

The coalition government led by the PPP is now being asked to pass a resolution in the National Assembly to be followed by an executive order to be precise. But no one is ready to consider that each executive order must have a legal basis to be issued. They also forget that an executive order will be immediately taken up by the same PCO judiciary that is holding court now and could suspend such an order with immediate effect. The truth of the matter is that the constitutional and legal mayhem created through the force of guns (October 1999 and November 2007) is not easy to clean up. There are layers and layers of legal complexities that surround the whole crisis. And we also need to consider that some of the judges that are going to be restored did play some part in bringing things to this pass. So, once again, I reiterate, this is about the system not one or 100 individuals – be they angels or devils!

The question that we need to ask ourselves is whether it is important to follow a so-called "deadline" or go about the process of restoration in a manner that is legal and constitutional. We need to contemplate whether we want to head towards another constitutional crisis, assisting the very same forces of negativity and regression who wield absolute power under the current state of our institutions. With the present Constitution so heavily tilted in favour of the office of the president, any misstep could lead to the coming to a halt of the entire constitutional machinery and hence "facilitating" the use of 58 (2) (b) again. Unfortunately, we can already see that some regressive forces have joined the ranks of civil society, lawyers and political parties and they are actively working to destabilise this hard won democratic order.

One proposal that has been the cause of the PPP-bashing with abandon is the fixing of the tenure of the chief justice of Pakistan.

The tenure of the chief justice was fixed for a five-year term according to the Constitution as it stood on July 5, 1977. It was a military dictator, Gen Zia-ul-Haq, who did away with the fixed tenure. Are we today arguing that Gen Zia's tinkering with the Constitution was justified? And that a political party that has won the majority of the seats and has the mandate of the people of Pakistan, has no right to propose amendments to the Constitution? When the Charter of Democracy was signed by the two major political parties – the PPP and the PML-N and seconded by all the democratic forces, including the JUI, the MMA and the ANP – it was agreed that the need of the hour was the restoration of the 1973 Constitution. It is ironic that the PPP's position that constitutional amendments are required to restore the original balance between the executive, judiciary and the legislature is so badly misunderstood.

The Charter of Democracy also talked about the need for changing the procedure of judicial appointment and putting in a mechanism that can enable the judiciary to become independent. For those who have forgotten – the COD also talked about not accepting PCO judges, and some of the honourable judges to be restored never bothered to take allegiance to the Constitution of Pakistan and remained under oath to protect and preserve a PCO.

The drawing-room classes and civil society which have been the most visible advocates for the restoration of Justice Iftikhar Chaudhry have little idea what actually lies in our Constitution, or what exactly has been our constitutional history. What they are focused on is restoration of some individuals. With all respect to those individuals and their brave stand against injustice, the fact is that in the end they remain individuals and the institutions they represent are far greater than their individual capacity or genuine sufferings. If we don't strengthen the institution, it will, and can, happen again and again.

It would have been very easy for the Pakistan People's Party to surrender to emotionalism and go with the flow. After all, it could win media support, civil society's favour and accolades from the lawyers' movement. However, the leadership of the Pakistan People's Party refuses to lower the ideals expressed by Mohtarma Benazir Bhutto and to play politics with these objectives in focus. Statecraft is far beyond mere point-scoring and political expediency.

We must first debate the principles that must guide us towards a more democratic and constitutional governance. If those principles can be decided, then we can talk about individuals. If we continue to manipulate principles for the sake of individuals, we won't be able to move forward as a society.

We have to trust the parliament and the elected representatives to come up with a solution. The thirty-day period according to the Bhurban Declaration was the expression of the wish of the two political parties' leaders and they have assigned their legal and political teams to work on that. If during the consultation process some questions, concerns or suggestions emerge, those need to be discussed and debated, instead of rushing through things. In the end what matters is restoring the judiciary with dignity, not some self-imposed deadline.

The PPP remains committed to its manifesto and that manifesto promises supremacy of the parliament, an independent judiciary and institutional governance. Beyond that it has to respond to the needs of its electorate. Pakistan suffers from very low human development indicators, and these need immediate redress. The PPP, as the majority party in the coalition, will continue to work on a broader national consensus and reconciliation, but it will also be focused on fulfilling the promises it has made to its voters.

The writer is an MNA and a member of the PPP media team. Email: fispahani@gmail.com