HOW are the mighty fallen, we used to say. Now we turn it round. How did the fallen become mighty again? Remember the “mad dog of the Middle East” — Reagan’s stupid cliché — the “terrorist” sponsor who even sent a shipload of guns to the IRA?

A certain Moammar Qhazafi — there are 17 different ways of spelling his name in Latin script — was the crazed leader of Libya who wrote a mind-numbingly boring volume of pseudo philosophy called The Green Book and who wanted to mock the White House by calling his own palace the Green House until someone tipped him off that this would mean he would look even more of a cabbage than he already was.

Then suddenly, he gave up some imaginary weapons of mass destruction and Anthony Blair, now the commercial director of World Faith, went out to fawn over him in Tripoli and he was called “statesmanlike” by the absurd Jack Straw and then he was invited to Paris by the even more absurd Nicolas Sarkozy where he right royally made the French president look like a twat by behaving in an extremely unstatesmanlike way.

And now — bingo — Sarkozy has done it again. This time it’s Bashar al-Assad, another presumed “sponsor of world terror” — this twaddle comes from Washington, of course — who will (if he accepts the invitation francaise) be in Paris on Bastille Day to take his place in the reviewing stand at the end of the Champs Elysees. The man whom millions of Lebanese believe plotted the murder of former Lebanese prime minister Rafiq Hariri in Beirut on 14 February 2005 will thus be receiving one of France’s highest honours: to stand beside the French president as he reviews his military forces.

Le Canard Enchaine, my favourite French newspaper, carried a wonderful cartoon this week in which an extremely good likeness of Bashar asks Sarkozy and the gorgeous Carla: “What is it exactly, your 14 July?” And Carla replies: “It’s the end of a tyrant.” And Sarkozy, almost lost for words, then adds: “Er — a king.” Well quite. And both apply to Bashar, whose succession after his father’s death in 2000 did rather suggest that Syria was now a caliphate (as Egypt will become if Uncle Hosni is succeeded by his son Gamal Mubarak). But seriously, how did Bashar, a hate-figure of the United States and an adjunct to Bush’s crazed notion of the “axis of evil”, get on the guest list? Sure he’s been asked to attend France’s spanking new “Union of the Mediterranean” (along with Ehud Olmert), but there’s more to it than that.

For one thing, both he and Sarkozy smell American failure. The American disaster in Iraq — and in Afghanistan (a movie coming to your local cinema soon) — and its total failure to produce a peace between Israel and the Palestinians and the loss of Lebanon as its protege (now that the pro-Syrian Hezbollah can veto America’s friends in the parliamentary majority once there’s a cabinet) means that France can move in among the wreckage for a second crack at le mandat francaise.

The tribunal to judge Hariri’s murderers still does not exist and even Walid Jumblatt, my favourite Druze nihilist, has been in Saudi Arabia to ask the king to keep pushing for the court. He did the same in Washington, chatting to Bush and Gates and the rest along the same lines. But the United States has failed in the Middle East.

Bashar is thus to be allowed back into the civilised West, which Jacques Chirac once encouraged him to visit before feeling betrayed after Syria’s apparent involvement in Hariri’s murder. My own suspicion is that Baath party security was involved in the mass assasination, but not Bashar.

Either way, it’s only 17 months since Chirac’s foreign minister, Philippe Douste-Blazy turned up in Beirut for the funeral of young Pierre Gemayel (assassinated, the usual fingers pointing towards Syria yet again) to announce that Chirac was “the best defender on earth of Lebanon’s sovereignty”. Now, it seems, Sarkozy is the best defender on earth of Syria’s sovereignty. And of Bashar.

Of course, all this is presented in what I call the politics of candlelight. Olmert may meet Bashar al-Assad, the French tell us, and thus further their indirect peace talks. It’s time to bring Syria in from the cold — which is why two of Sarkozy’s top henchmen have been in Damascus, buttering up the Syrian president in the hope he won’t turn down the trip. France will be able to encourage Bashar to behave in Lebanon, open an embassy in Beirut, delineate the Lebanese-Syrian border, blah, blah, blah. It’s a reward, too, for Bashar’s support for the Doha conference which ended — up to a point — Lebanon’s latest bout of sectarian sickness, albeit to the advantage of Sister Syria herself.

Now the Lebanese parliamentary majority is groaning about Bashar’s visit. So is France’s largest Jewish organisation, although not very successfully; last time the Syrian president visited Paris, it symbolically blamed him for the Nazi Holocaust of Europe’s Jews, which ended well over a decade before Bashar was born. Now even that elegant old butterfly from Libya is objecting to the “Union of the Mediterranean”. Yes, the “statesmanlike” panjandrum Qadhafi denounced the whole shebang with the immortal words:

“We are not dogs to whom they throw bones.” Sarkozy should have guessed.

This was, after all, the same Qadhafi who turned up at a non-aligned summit in old Yugoslavia — this from a former Serbian diplomat friend of mine — with a camel and a white horse, the first to provide milk, the second to ride through the streets of Belgrade en route to the conference. He got to keep the camel. The horse was banned.

But that’s how things go when you see yourself as a “guide” — Qadhafi’s description of himself; oddly the very same term used by A Hitler — and there really is no knowing what happens to wayward folk when they climb on our wheel of fortune. We gave Kurt Waldheim an honourary knighthood, then withdrew it when we found out he had a dodgy Second World War past. We took away Ceausescu’s knighthood when he was executed on Christmas Day. We loved Saddam when he tortured and killed all his communists — when mayor of Paris, Chirac fawned over him too — and when he invaded Iran, then hated him when he invaded Kuwait and were happy to see him hanged 17 years later.

Fear not, such a fate will not await Bashar. He will honour the downfall of the tyrant-king and he will no doubt receive economic help from France. And thus his people will not have to eat cake.— © The Independent

AGAINST the background of a constitutional commitment to fully secure the independence of the judiciary and separate it from the executive, the question of the true meaning and effect of the expression ‘consultation’ came up before the Supreme Court in the famous case of Al-Jihad Trust vs Federation of Pakistan (PLD 1996 SC 324).

After considering the constitutional provisions of India and Pakistan, relevant precedent from the Indian Supreme Court, certain principles of Islamic law and other material, the court held that the question of appointment of superior court judges was inextricably linked with the independence of the judiciary.

The consultative process laid down in the constitution was mandatory and was intended to be effective, meaningful and purpose oriented i.e. to select the best possible person to hold a responsible office, with a high degree of competence and unimpeachable integrity and is capable of dispensing justice free from all biases. In this context, it was held that while the chief justices may be most suitable to speak about the competence or fitness of a candidate, appropriate information regarding his character or general reputation may be more accessible to the executive and a consensus oriented consultation is required. The court, however, further held that the opinion of the Chief Justice of Pakistan ought to be accorded primacy and could only be ignored for recorded reasons which would be justiceable.

Since some parts of the judgment in Al-Jihad case did give rise to a political controversy in some quarters, it may also be appropriate to refer to the approach of the Supreme Court of India on this aspect of the matter. The preamble to the Indian constitution also speaks of securing the independence of the judiciary which provides a similar scheme of consultation with the chief justices in the appointment of judges though separation of the judiciary from the executive is not an operative provision but merely a directive principle of state policy.

In Supreme Court AOR’s Association vs Union of India 1993 SCC 441 their Lordships laid down the following precepts:

(i) When the constitution was being drafted it was realised that the independence of the judiciary had to be safeguarded not merely by providing security of tenure and other conditions of service after appointment but also by preventing the influence of political consideration in making the appointment if left to the absolute discretion of the executive as the appointing authority.

(ii) If the selectee to a judicial office carries a particular stamp for the purpose of changing the cause of his decision then the independence of the judiciary cannot be secured….

(iii) The concept of separation of the judiciary from the executive cannot be confined only to the subordinate judiciary totally discarding the higher judiciary.

(iv) To safeguard the will of the people enshrined in the constitution it is necessary to keep the judiciary truly distinct from both legislature and the executive. The independence of the judiciary is the basic feature of the constitution which is inextricably linked with the constitutional process of appointment of judges of the higher judiciary. To expect a judiciary to be independent when the power of appointment of judges vests in the executive is illogical.

The provisions relating to appointment of judges in the proposed constitutional package, apart from several others relating to the judiciary, betray a conscious intention to destroy the very concept of the independence of the judiciary, which has been recognised to be an essential feature of the constitutional fabric of Pakistan. The last word in all judicial appointments, be those of the chief justices or of judges, is sought to be given to the political executive throwing overboard constitutionally recognised principles of seniority respecting chief justices and meaningful consultation relating to judges.

The concept of consultation in relation to all judicial appointments is sought to be completely done away with. Instead commissions are sought to be established to propose two names for appointment to each vacancy in the offices of the chief justices or judges of superior courts. The chief executive of the federation or the province in his sole discretion will pick one of them who will be appointed after confirmation by a joint parliamentary board.

For the appointment of high court judges, the proposed Article 193-A stipulates a four-member commission, comprising the Chief Justice of Pakistan, the Chief Justice of the High Court, and the federal and the provincial law ministers. They must nominate at least two candidates for each vacancy. It means that if the two ministers agree on one, he has to be nominated even if both chief justices find him entirely unsuitable. The chief minister, in all likelihood, will approve the ministers’ nominee by way of final choice. The joint parliamentary board, in terms of the Charter of Democracy, is only required to confirm the solitary nominee of the chief minister. It has no role to play in the selection process.

The commission for appointments to the Supreme Court is required to comprise the Chief Justice of Pakistan, the chief justices of all high courts and the federal law minister. In the first instance, it is incomprehensible how judges of lower courts, i.e. high court, rather than the incumbents in the Supreme Court itself are found more competent to advise on the capability of a person to be appointed to the apex court, particularly when some of them might themselves be legitimately aspiring for elevation. The only ostensible logic in such dispensation could be that being potential candidates themselves, they could possibly be more amenable to the influence of the law minister as compared to sitting judges of the Supreme Court.

When the office of the Chief Justice of Pakistan becomes vacant, the federal law minister and the five high court chief justices will constitute the commission to propose two names for consideration to the prime minister. Since the concept of disqualification of a prospective candidate would have been done away with and the seniority principle abandoned, what would prevent the members of the commission from proposing two from amongst themselves only, consciously ignoring all competent senior judges of the Supreme Court?

To be continued