THE Murree declaration signed by Mr Asif Ali Zardari and Mian Nawaz Sharif finally paved the way for the restoration of the judges who were illegally and forcibly deposed on Nov 3, 2007. Both leaders deserve praise for their vision and leadership.

Although the Murree declaration has set the process of restoration in motion, critics inside Musharraf’s camp as well as others have expressed some reservations.

The most common reservation is that Musharraf’s action of deposing the judges on Nov 3, 2007 has been upheld and declared to be a past and closed transaction by the Supreme Court of Pakistan. Therefore nothing short of a constitutional amendment passed by a two-thirds majority in each house of parliament can undo this, and thus neither a parliamentary resolution nor executive action can legally restore the judges.

The argument is simple and superficially attractive but when examined in depth it loses its appeal. First the contention is self-contradictory. On the one hand it is argued that the judges’ dismissal is a past and closed transaction which cannot be reopened, yet it is also conceded that it can be reversed by a two-thirds majority. In the present context, a past and closed transaction would only be something that is irreversible no matter what method is invoked to reverse it. Surely the removal of judges can hardly be described as irreversible. The victims questioned it from day one. Now the perpetrator wants to repent and retract.

As to the argument that there is a Supreme Court decision which has upheld the removal of judges and declared it a past and closed transaction, it is submitted that this can be addressed at two different levels. One at a higher level of principle and jurisprudence and the other at the practical level. Taking the latter first, it must be kept in mind that a judgment only binds the parties and not those who are not before the court. It is also a settled principle of law that the issue of a judge’s appointment cannot be raised collaterally in proceedings where some other issue or question is adjudicated upon. The appointment or removal of judges must be the core issue.

In the case of Tikka Mohammad Iqbal vs Gen Pervez Musharraf, a seven-member bench of the Supreme Court upheld the PCO and actions taken thereunder. The court also observed that the chief justices and judges of the superior courts who were not given and had not taken oath under the Oath of Office (Judges) Order 2007 had ceased to hold their respective offices and their cases could not be reopened in the light of the doctrine of past and closed transactions.

Neither the question of removal of judges was directly at issue nor were the affected judges party to the proceedings. It is respectfully submitted that the issue of removal of judges arose collaterally and the observations of the Supreme Court are not part of the ratio of the judgment. Even if it is assumed that the judgment is binding, it may be argued that it is binding only to the extent that one party to the transaction — i.e. the deposed judges — could not unilaterally insist on being treated as judges insofar as the courts and other public authorities are concerned. This was the effect of the judgment.

However, this does not prevent the other party to the transaction, the federal government, from retracting or revoking its actions which in retrospect it admits to be illegal and unwarranted. An analogy may be drawn from service law. A number of public-sector employees were removed during Zia’s martial law and their removal was upheld by the superior courts. With the restoration of democracy their cases were reconsidered by the appointing authority and they were restored in service.There is no principle of law which prevents revocation of an illegal, mala fide and indeed patently unconstitutional action such as the one under consideration. The doctrine of past and closed transactions has never been applied to illegal or unconstitutional actions.

It is also true that a judgment pronounced by a competent court cannot be nullified or watered down by executive action or a parliamentary resolution. However, that principle only applies where the competent court interprets a provision of the Constitution or a valid law. The PCO was, as admitted by Mr Musharraf himself, an unconstitutional action and remains so as, unlike past constitutional deviations, it has not been protected or validated by a subsequent constitutional amendment.

Can a judgment interpreting an instrument which at the time of its promulgation was contrary to the provisions of the Constitution and has not even been validated subsequently as per articles 238 and 239 of the Constitution really be treated as a binding precedent?

There is yet another problem with the judgment. The court allowed Musharraf the limited power to make amendments to the Constitution which could have been made under the Constitution but without affecting its salient features, including independence of the judiciary. Then the court upheld the Oath of Office (Judges) Order 2007 whereby the judges were removed.

With profound respect, the Oath of Office (Judges) Order 2007 is an order which could not have been passed even by parliament under the Constitution. Indeed it is completely destructive of a salient feature of the Constitution, namely independence of the judiciary. Yet it has been upheld by the court in the same breath in which it had restricted Musharraf’s power to amend the Constitution. This striking contradiction in the judgment is very hard to explain or reconcile, let alone justify. Is this judgment really a precedent which must be defended and preserved for posterity and must require a two-thirds majority in parliament to be overturned?

There are other problems with the judgment on the basis of principle and jurisprudence. On Nov 3, 2007, a larger bench of the Supreme Court had passed an order restraining all from acting on the basis of the PCO. This order was binding on all under articles 189 and 190 of the Constitution. Thus all actions, including the appointment of judges to reconstitute the Supreme Court and the bench which upheld the PCO, were perforce taken in violation of the order of the Supreme Court passed on Nov 3.

The entire superstructure raised on the basis of actions which inevitably violated the order of the Supreme Court passed on Nov 3 must be considered as void and can have no sanctity in the eye of the law except for the limited application of a de facto doctrine.

We must not lose sight of the basic fact that Gen Musharraf’s action on Nov 3 was patently unconstitutional, unjust, mala fide and self-serving. Like all things destructive, it happened suddenly. Such destructive acts take generations to reverse. Fortuitously, we have been blessed with this rare opportunity to undo this damage through the democratic process.

The National Assembly resolution would reflect the wishes of the people. The government should immediately issue notifications rescinding earlier notifications removing the judges and it must ensure their restoration.

Keeping aside the legal debate, the fundamental issue is whether one man can be allowed to tamper with the basic law and play with our collective destiny.

IF we look carefully at the manifestos of the main political parties — an exercise that was done by the Lahore-based Institute of Public Policy and released a few days before the elections of Feb 18 — most of the attention of the leaders was on political development.

The parties taking part in the polls pledged to bring democracy to the country. This was to be done by giving executive authority to the prime minister and making him and his cabinet answerable to the legislature.

There was also the promise to make the judiciary autonomous, not subject to the whims and wishes of those who wielded political power. The focus, in other words, was on politics. There was an assumption that a sequential approach could be followed; the first order of business was to provide the country with a durable political system. Once that was done, policymakers could turn their attention to economic development.

There were two reasons why the sequential approach was adopted. The first was that even the parties opposed to President Pervez Musharraf had bought the argument the previous administration had made about the country’s economic progress. According to this Pakistan had been placed on a trajectory of growth that would see the economy expand year after year at a rate of 7-8 per cent. The only quarrel with the government’s claim was that the growth it had produced in the economy had done little to help the poor or to improve income and regional wealth distributions.

Some of us had argued that even the claim of having achieved a sustainable rate of growth was not correct and that the structural rate of GDP increase was considerably less than 7-8 per cent, perhaps about 4-5 per cent.

I had suggested in this space on a number of occasions that the high rates of growth were largely the result of a combination of a number of happy circumstances. The government needed to do much more before it could claim that the economy had climbed on to a higher plateau. This debate should have been reflected in the party manifestos. It wasn’t. The political parties did not address the issues of the sustainability of growth and the structural changes that were needed to bring it about.

The other reason was that the country’s economic problems were not considered to be as urgent as those it faced in the political field. The fact that the president had concentrated so much power in his hands that the checks and balances built into the system were almost totally lost concerned the opposition much more than economic issues.

This assumption was also not correct. As political scientists and economists who study the developing world have come to appreciate, politics cannot be separated from economics. What happens in economics has profound implications for politics; what occurs in politics affects economics. Societies must progress in both areas at the same time.

It appears that Pakistan may be getting ready to turn the corner in so far as political development is concerned. The two parties that obtained the most seats in the National Assembly have agreed to form a coalition. They have also indicated that the judges who lost their positions because of the constitutional amendments made by President Musharraf on and after Nov 3, 2007 would be brought back into the system. They are still debating as to how that can be done. These are important decisions and if fully implemented they may help to erect a democratic structure in the country. However, will these changes in the way Pakistan has been managed help the country’s economic development?

Development economists have reached a degree of consensus on what is the broad strategy that needs to be followed to bring economies out of backwardness and set them on trajectories of growth that would, over time, bring the incidence of poverty to reasonable levels. They also believe that there is a great deal developing countries can learn from one another.

In this context it is legitimate to ask as to what extent Pakistan can learn from India, especially when new administrations are getting ready to assume power in Islamabad and the four provincial capitals.

There are three areas in which policymakers in Pakistan can derive some useful lessons from the Indian experience. In two of them, India is a couple of steps ahead of Pakistan and in the third it is a step or two behind. The first area where India has done better than its neighbour is to marshal domestic resources for investment, to reduce the reliance on external capital flows to produce high levels of GDP growth. The Indian savings rate is higher than that of Pakistan as is the tax-to-GDP ratio.

The Indians have fared better as their political structure has allowed them to tax the rich a bit more than has been possible in Pakistan. They were also able to introduce land reforms soon after they achieved independence. Pakistan, having struggled with this issue in the sixties and seventies, has all but abandoned reflecting on it. In its case, the domination of the propertied class in the political field has meant that distributional and fiscal policies could not be used either to raise domestic resources for development or to redistribute income and wealth from the very rich to the very poor.

The second area where India has made much greater progress than Pakistan is in devolving greater development authority to its states. This is a surprising development since the Indians originally conceived their political system to be unitary rather than federal. In Pakistan, the 1973 Constitution went for a federal structure with a number of powers placed in the provincial domain.

That did not happen largely because those who governed form the centre chose to centralise power rather than distribute it among the provinces. This was done not only by the military rulers who, because of their tradition and training, believed in a centralised command structure. Even the civilian rulers found it difficult to let go of power and share it with the chief executives of the provinces.

The only area where Pakistan has done better than India is in reducing the power of the bureaucracy. Like India, Pakistan inherited a system of bureaucratic management that gave enormous amount of executive authority to a small number of civil servants who represented the state at the local level — in the districts and divisions into which the country was divided.

In India these functionaries of the state belonged to the Indian Administrative Service, the successor to the powerful Indian Civil Service that was once described as the “steel frame” which supported the British in the subcontinent. In Pakistan the Civil Service of Pakistan was the successor service.

However, in 1974 Prime Minister Zulfikar Ali Bhutto disbanded the CSP and made the civil servants responsive to their political bosses. The government of President Pervez Musharraf went a step further and made the civil servant working in the districts responsive, at least in theory, to elected representatives of the people.

Given the economic challenges the new government will face and given some of the lessons Pakistan can learn from other developing countries, what are the few things that need to be done in the first hundred days after the assumption of power by the new administrations in Islamabad and the provincial capitals? I will begin to answer this question with the article next week.

IT is generally believed that the US is continuously and persistently supporting President Pervez Musharraf to sustain him in office. This is untrue. America did support Musharraf as long as the US perceived that its interests were actively being served by him and Pakistan. The situation has changed over the last couple of years.

At one stage, the US wanted a change in the government in Islamabad but the incumbent president successfully clung to power and resisted American pressure effectively. Several intrigues have been witnessed in recent years, the most significant being the conspiracy involving the assassination of Benazir Bhutto. Pakistan survived this subversion. Support from the US recently started dwindling as our services to them went counter to the emerging national interests of Pakistan.

Considering their experience of the longstanding American domination over Pakistan’s internal and external affairs, most Pakistanis believe that President Musharraf is still Washington’s blue-eyed boy. Actually, the situation has been changing in the last three years and Pakistan has begun to act more independently. It has become relatively independent and the US does not approve of Pakistan’s new stance. Countries in the region also recognise Pakistan’s new-found importance.

Pakistan’s changed policy vis-à-vis the US and the region is not spontaneous. Nor is it a reaction to developments taking place here. The Pakistan government has learnt from its long history of chequered relations with the US and South Asian neighbours that the country’s interests are better served by cultivating strong relations with regional powers.

In the context of this newly acquired insight, Pakistan has tacitly changed its policy towards the United Sates. Accordingly, the US has also changed its stance substantially towards Pakistan in the last couple of years. As a result, the US no longer supports President Musharraf any more.The changed stance is evident from Washington’s decision to halt payments to Pakistan for its military services to the US. The Americans do not like Pakistan’s preference for reinforcing its ties with its neighbours, which has adverse implications for US interests. The sovereign behaviour of Pakistan is evident from the fact that CNN (a powerful television network) once reported that Gen Kayani was ‘handpicked’ by Musharraf. If Gen Kayani had been made the chief of the army staff with prior approval of the US, they would not have labelled him as ‘handpicked’.

International relations are greatly influenced by economic relations and the accruing mutual benefits. Pakistan has turned to the region and has leased Gwadar Port to Singapore, which is more under the influence of China. This move was not well received by the US. The expensive and highly technical Neelam-Jhelum hydropower project with a multibillion-dollar construction tag has been recently awarded to China. As things stood earlier, such a project would have normally gone to a US-allied European company.

Pakistan’s assertive behaviour is not approved by the Americans who would wish to re-tame Pakistan. However, this is not possible any more as the region has emerged as a force to be reckoned with in international politics. Pakistan is now acting as a strong regional player, not a lone player. This assertion of its sovereignty by the region as manifested by Pakistan’s changing stance is frowned upon by the US. Accordingly, the question arises: would the US like to support President Musharraf in these circumstances? The answer is: definitely not.

Various surveys and observational impressions show that a vast majority of the people in Pakistan do not like American interference and whoever sides with the US is not liked by the public. Whenever a statement of support for President Musharraf appears in the media, it intensifies the negative feelings voiced by the public for Musharraf. This is a catch-22 situation for the US. People must understand its complexity, otherwise this country will keep suffering at the hands of global politics.

We need to understand this and gain confidence in ourselves and our leaders. The government on its part should demonstrate its ability to act in Pakistan’s interest. This is a new reality which must be understood by all.

The writer is director, Institute of Social & Cultural Studies, University of Punjab, Lahore.
drmhafeez@wol.net.pk