A purposeless package

THE constitutional package handed by the PPP to its coalition partners claims modestly that it is not a sacrosanct document. As if the constitution itself is! Ziaul Haq’s Eighth Amendment made in it no less than 40 changes.

Pervez Musharraf’s Seventeenth Amendment fell somewhat short of that number but was equally radical. More damaging, however, was his extra constitutional assault on the administrative system of the country.

Before Zia, the very parliament which had adopted the constitution amended it seven times: Mohammad Khan Junejo once; Benazir attempted once for the women’s sake but didn’t succeed; Nawaz Sharif made five amendments — the nation was lucky to have escaped his sixth attempt (Fifteenth Amendment) that was to make Sharia the country’s supreme law.

All these amendments added little to the worth of the constitution, and some even curbed fundamental rights. The changes now being proposed by Asif Zardari through his Eighteenth Amendment far exceed the combined number of all amendments made so far. Though numbered 80 in the draft text, the changes proposed are more numerous. The exact count would be a tedious undertaking.

The constitution, thus, has been more of a hobby horse for generals and politicians and not an inviolable code, embodying the basic law of the country and reflecting the aspirations of its people. Ziaul Haq wished to make Pakistan a fortress of Islam and Musharraf to turn it into a model of enlightened moderation. Bhutto and Nawaz Sharif, too, apparently, acted in the cause of democracy and religion but the motive was to entrench themselves in power. The exertions of all four spread over 34 years have made the country a cesspool of violence, extremism and bigotry.

The package now prepared by Asif Zardari, the self-proclaimed soon-to-be founder of a new order, might, in fact, land the country in greater chaos. Its provisions relating to the judiciary have been rejected outright by the lawyers. It would be nothing short of a miracle if they and their civil society companions, call them political agitators if you will, led by Justice Iftikhar Chaudhry and marching in the blazing sun, are able to keep their cool even if they intend to.

The necessity and merit of the amending plethora aside, it is surely going to make the revised constitution more cumbersome and difficult to understand and interpret. Already with its multiple footnotes the constitution makes for exasperating reading.

Take the example of Article 58-2(b) — the scourge of politicians and the pet of the generals. Ziaul Haq added clause 2(b) to the original Article 58, Nawaz Sharif omitted it, Musharraf reinstated it with some changes in the wording. It is again being deleted. The intention is clear but the text is not. Another footnote will have to be added to the five that are there.

Instead of amending so many articles which have already suffered amendments more than once it would make greater sense to rewrite the whole constitution. In any case even with all the amendments incorporated, the constitution is not going to satisfy every political group, province and community as it does not address the more vexatious long-lingering issues of provincial autonomy, status of the tribal areas, security of civil servants and bringing fundamental rights clauses in conformity with Pakistan’s international commitments.

With all these and some other basic and burning issues going unaddressed there can be no new order emerging from Zardari’s dream or deception. Discontent among the provinces, communities, tribes and people as a whole would persist, perhaps even worsen. The feeling is that Asif Zardari’s career in politics is going to be short-lived. The knives are already out. He can become a leader in his own right, and not by mere default (the tragic death of his wife) or by virtue of Musharraf’s reconciliation order, only if he genuinely fulfills his promise of a new order that is also equitable.

The constitutional package, even if the whole of it were to be approved, would not herald a new order; a new constitution adopted after free debate might. Empowering the prime minister and reducing the president to a figurehead more powerless than Chaudhry Fazal Elahi and Rafiq Tarar would satisfy no one.

The package focuses only on the powers of persons. The people expect the institutions of the state from top to bottom to be responsive to their needs. They are not concerned with who gives jobs, plots and loans but that they receive them justly. No government has ever done that, whether the executive authority has been vested in the president or the prime minister. Though it is still struggling to stand on its feet, this government is also embroiled in the fight over jobs and spoils.

That said, the instant thought is one of sympathy for the committee which is to consider the package. It is complex, confusing in parts and at places sloppy in language. Take just one instance. There is a proposal to replace the existing Supreme Judicial Council with a Judicial Commission which would comprise a ‘non-politicised’ retired chief justice of Pakistan, two retired judges of the Supreme Court and two of a high court who are also non-politicised. How will it be determined, and by whom, whether a retired judge is politicised or not?

To an extent every citizen is and in these times even some sitting judges are. And how many retired chief justices would be still around to offer a choice? A rational approach would be to lay down the standards and procedure by which a judge is to be judged and let the existing Supreme Judicial Council do it.

The package does not resolve the judicial crisis nor does it have the making of a new order. It is thus purposeless. Discussions revolving around it will be a waste of time and deepen rifts as hopelessness spreads wider. A straight recourse to parliament is the only answer. A consensus may emerge in the joint committees of the National Assembly and the Senate — when it appears all but impossible emerging out of the party caucuses. Our politicians must not forget that they lose credibility faster than the generals. This time round it is going to be faster still.

kunwaridris@hotmail.com

Zardari and the judges

MAULANA Fazlur Rahman said at a press conference on May 26 that General Musharraf’s actions of Nov 3, 2007, including the dismissal of certain judges, could not be undone by the adoption of a National Assembly resolution and the issuance of an executive order.

If that were feasible, he added, we might ask for his coup of Oct 12, 1999, also to be undone and Mr Nawaz Sharif’s government restored.

The procedure for reinstating the deposed judges has become controversial. One group of jurists has maintained that a resolution of the National Assembly requiring reinstatement, followed by an executive order, would be sufficient. Others contend that a constitutional amendment is needed to open the way for their reinstatement. Maulana Fazlur Rahman, though by no means an expert in these matters, has chosen to side with this latter group.

Let us suppose that the National Assembly passes the resolution under reference and the prime minister issues an executive order to implement it. What happens then? An interested party will probably file a writ in the Supreme Court, challenging the legality of the resolution and the executive order. The present court, largely the outcome of Gen Musharraf’s proclamation of emergency and the PCO of Nov 3, has already validated these actions of his along with the dismissal of certain judges and appointment of others to replace them. The likelihood is that it will hold the Assembly’s resolution to be unlawful, null and void.

It is argued, on the other hand, that General Musharraf’s imposition of emergency rule was unlawful and so were the actions he took under its authority, including the appointment of judges to replace the ones he had removed. This school of thought argues further that the present court lacks legitimacy and cannot be regarded as a properly constituted organ of the state. Its verdicts are therefore of no consequence.

A distinction has to be made here between de jure and de facto. The present court may not meet the test of legitimacy but it is de facto supreme: it is hearing cases and its decisions are to be enforced. For practical purposes the constitution, as amended by Gen Musharraf, is the law of the land. This situation will not change until a constitutional amendment is passed, which revokes the PCO and certain specified actions taken under its authority, including the dismissal of judges, and repeals the Seventeenth Amendment.

In the aforementioned press conference Maulana Fazlur Rahman also stated that the PPP and PML-N did not see eye to eye on issues relating to the judges (a fact now well known). Mr Zardari says he will provide for their reinstatement in a constitutional amendment (consisting of 80 items) that will be moved in parliament on an undetermined date. Mr Sharif wants a National Assembly resolution requiring reinstatement now.

Mr Zardari does not want to go Mr Sharif’s way. He may be apprehensive that the reinstated judges will invalidate the National Reconciliation Ordinance (NRO), which allowed the withdrawal of criminal cases pending against him. If that does come to pass, these cases might come back to haunt him.

The Assembly resolution would mollify Mr Zardari’s coalition partners. But it may turn out that the desired resolution will not do and a constitutional amendment is, after all, needed. To be on the safe side, an amendment dealing only with the judges may be moved at the same time that the resolution is. Still another amendment to protect the NRO and implement all the other 79 items in Mr Zardari’s bag may be introduced at some appropriate time.

Nawaz Sharif has threatened to join the lawyers’ long march if the resolution he wants is not moved in the Assembly very soon. It is possible that Mr Zardari will yield. The greater likelihood is that he will keep up his preference for dealing with the judges by way of his 80-item constitutional package. It will have to be taken to the Assembly after the budget has been passed. Let us see what kind of a time frame that will require.

If the prescribed rules of procedure are followed, the budget will go to a committee, which will apportion segments of it to sub-committees, each dealing with the estimates of a specific department. It will go over its package item by item, consult with departmental officials, and make recommendations.

These segments, with each sub-committee’s recommendations, will eventually reach the parent committee, which, after some additional work, will send the document to the ministry of finance. The latter will finalise its proposals and bring them back to parliament. The Houses will debate and vote. All of this will easily take a couple of months.

A PPP spokesman has recently said that the budget, to be presented on June 11, will be passed by the end of the month, that is, in less than three weeks. If this is how the PPP government proceeds, parliamentary consideration of the budget will have been perfunctory, meaning that parliament will not have taken its most important function seriously enough. It will also mean that the PPP’s constant talk of the sovereignty of parliament is gibberish, merely ritualistic sloganeering.

After the budget session, members of parliament will probably go home to take care of their other obligations. They will return a few weeks, possibly months, later to do more work. If the judges’ issue is presented to them as part of an 80-item package, it is hard to say how much of the document they will accept and how long they will take to reach a decision. If parliament follows its own rules of procedure, the process could take months to complete.

Unless Mr Zardari and his associates are enthusiastic and have a sense of urgency about the package (which they may or may not have), the proposed amendment may fall short of a two-thirds majority support in the Senate (if not in both Houses) and fail, in which case the deposed judges will stay deposed. This outcome will suit Mr Zardari well.

It is possible that all of this has been a part of his design all along. He is emerging as an expert in killing projects with a blunt and rusty knife one side of which is indecision and the other inaction. Knowing that time can be a silent erosive, he may have been expecting that the powerful tide of public opinion in favour of the judges will one day subside and the issue of their reinstatement will eventually go away.

The writer, professor emeritus at the University of Massachusetts, was until recently a visiting professor at the Lahore School of Economics.

anwarsyed@cox.net

Inmates go their separate ways

“THROUGH this executive summary, I order that all deposed judges be restored to the positions they occupied on Nov 2, 2007.” — Syed Yusuf Raza Gilani, Prime Minister of Pakistan, Prime Minister House, Islamabad, 00:02 hrs, June 1, 2008

Simple, as the pro-restoration caravan has been suggesting for so long … except that, among the other things that we are lacking these days, we did not have 00:02 hours on June 1 this year.

The Zardarian guile, which has been so transparently flaunted before the people ever since the election on Feb 18, predicts such a trick any moment. Everything that the PPP co-chairman has done over the last few months has been diligently and meticulously painted as being part of some conspiracy.

He plotted the sidelining of the party’s ‘chosen’ candidate for prime minister and eliminated challenges from a few able men to sneak in his own choice for the post. He has been proudly introducing one important appointee after another as ‘my jail companion’. The refrain led the nation into believing that he was talking about the future until someone did some research and concluded that he was actually talking about incarcerations of the past.

Sure, some others have also been privileged to spend time in jail, but to their misfortune either they didn’t belong to the period specified by Asif Zardari or they didn’t belong to the party he now spearheads. For instance, he doesn’t appear to view with due empathy the case of the judges who were imprisoned in their homes after March 9, 2007, along with their families.

Aitzaz Ahsan keeps highlighting the point, but his protestations about the judges make as little impact on his party’s chief as do his frequent references to the long nights he has spent in police lockups in the company of terror and a few diehard PPP workers. What is noticed, instead, and on an international scale, are words that he says he had never uttered to a reporter.

Javed Hashmi, one inmate in Zardari’s time zone but quite outside the party, recently suggested that it was beyond him to comprehend the politics perfected by the PPP co-chairman. Mr Hashmi did, indeed, leave the most discerning of observers envious, with his humble submission that he was the one who understood the politics of Zulfikar Ali Bhutto and Benazir Bhutto.

And since he belongs to a veritable group of agitators who cannot set a foot wrong, with this analysis of his he caused ear-to-ear smiles all around. People like him and the other faces in his camp. They can be allowed to proceed with no pressing questions asked and no explanations sought. The only answer that is demanded of the pro-justice campaigners is the answer we all know: that there shall be no deal on the restoration of the judges.

A reported statement in which Mian Mohammad Nawaz Sharif had seemed to agree to a compromise which protected the Nov 3 PCO judges is either not mentioned or summarily dismissed as a minor aberration. Much more important, the impossibility of impeaching as president a man that you do not recognise as constitutional president is never discussed. It can perhaps be argued that an impeachment is as big a proof of a legal president as is an indemnification, yet the campaign that pursues the just ideal of a free judiciary has no time to be bogged down in details such as these.

Mian Nawaz Sharif wants to go over the man whereas Asif Zardari has been saying he prefers to go around him. This is understandable given the old feeling that the individual who may have facilitated the PPP’s coming to power is the one who has for eight long years stood between the PML-N and the establishment. It is in the course of a comparison of the short-term and the long-term that Mr Zardari risks losing ground — especially in Punjab — to his friend Mr Sharif.

The PPP leader was under no moral pressure to restore the judges as his party had emerged as the single largest entity in the Assembly after the Feb 18 polls. The party was not committed to a restoration of the judiciary and it did not raise the slogan of restoration in its poll campaign. But didn’t things change after he had signed the Bhurbhan declaration with Mian Nawaz Sharif in March this year? It was after he had made this commitment that he realised that it was imprudent to give a timeframe for accomplishing a job as complicated as this.

There is no doubt that in the midst of so many big issues confronting the government, its distance from the free-judiciary procession is costing the PPP in terms of popular support. All mistakes and errors committed by other politicians pale before this very visible flaw in Mr Zardari’s politics. As Pakistan watches, the people are finding it hard to toe the party line.