THE recent reports in the media point to another conflict between the judiciary and the Zardari government. In the history of Pakistan, there is nothing new about it. The Supreme Court and Chief Justice are usually accused of ‘judicial activism’ and especially of targeting the ruling party. During Nawaz Sharif rule, the Supreme Court was raided by his supporters. Under Zardari, a protest strike was held in Sindh a week ago with consequent rioting against the ‘Punjabi’ conspiracy to reject the nominee of the regime as chief of NAB. Chief Justice Iftikhar Muhammad Chaudhry has no constituency in Punjab but that is not the point of the protest.
There is a variety of issues of contention between Supreme Court and the government. For convenience I will focus on three of them: the role of the parliamentary committee in the appointment of judges; the appointment of chief of National Accountability Bureau (NAB); and the constitutionality of holding two offices by President. Each of these issues has put the senior judiciary in the spot as each of them has both constitutional and political ramifications. There is an unspoken phrase lurking behind all this tension and that is the shadow of NRO. The Prime Minster Yousaf Raza Gilani assures us, however, that there is no confrontation between the judiciary and his government. He nevertheless emphasises that in our trichotomous system every institution has to remain in its own domain.
Whether or not the constitution provides for a trichotomous system is a debatable issue. Obviously, the prime minister is pointing a finger at the Supreme Court. There is an important link between the national assembly and the senate, and the executive originates and grows under the prime minister who is elected by the parliament. The legislature and the judiciary supplement each other, but the constitution is not a detailed codification underlying all the possible scenarios of policies to be pursued by the government. This job of interpretation is done by the Supreme Court, in line with the well-established convention in all democracies.
The US system of government used to be referred to as trichotomous, with the directly elected president playing an active role in decision-making and with the elected bicameral senate and the house working as the legislature. There is of course inter-dependence among the three, and as those who specialise in the system maintain, the supreme court has gradually become an arbiter of the constitution.
When the 18th and the 19th Amendments to the constitution for the appointment of judges were approved many observers were apprehensive about the role of the parliamentary committee in this regard and, as expected, the committee has become a controversial innovation. The procedures for appointment of judges vary among parliamentary democracies, both at federal and provincial (state) levels. For senior appointments, for example, the range is from prime minister with approval of his cabinet (Canada) to ‘hegemony’ of Supreme Court judges (India) making recommendations to the head of the state.
For Pakistan, the recent procedures established by the 18th Amendment provide for a judicial committee to approve the recommendations of the chief justice. This committee consists of chief justice, senior judges, attorney general, a senior advocate of the Supreme Court, as well as the minister of law and justice. There is then a variety of opinions in which the minister of law and justice has no crucial role except that his views on behalf of the executive will be duly noted.
The above procedure accommodates a greater interaction than in other democracies. Whether it is necessary is a different issue. The question then is why was a need felt to have an additional layer in judicial appointments, the parliamentary committee. This question has never been clearly answered. The closest we get to an explanation is from some commentators suggesting that this gives an opportunity to a bipartisan committee of the parliament to make its decisions on behalf of the people. Then why not include representation from the people directly in the judicial commission for a member from the professions, as it has been done in Britain. Why another level of screening the appointments when other democracies seem to manage the task quite well without it?
The current stand-off between the Supreme Court of Pakistan and the parliamentary committee gives us far too small a sample to make a meaningful conclusion. But it is possible to contend that the main objective of putting this additional layer of committee is to make sure for the appointment of ‘safe’ judges, safe in political terms, because the members of the committee may not be qualified to evaluator judicial competence. With the passage of time then the parliamentary committee will become more controversial.
Coming to accountability, Pakistan has never been lucky to have a strong, viable and independent process of accountability, even though corruption has been a serious problem penetrating in all walks of life in the country since 1950s, according to studies made on the subject. The developed countries enjoy a low of index of corruption, not necessarily because they are free from this evil, but it is because they realise that dealing with corruption is a constant challenge. During the so-called decade of democracy, there was a chance to streamline the process. Instead, it was thoroughly politicised, especially in the Nawaz Sharif regimes.
When Zardari government was established after the 2008 elections, it soon became obvious that the senior staff that was pursuing the documentary evidence about the Swiss accounts cases against Mr Zardari and cases against some of his cronies were transferred or retired. The shadows of NRO had to be controlled. It is in this context that the proposal to appoint Justice (retd) Syed Deedar Hussain Shah as chairman of the Bureau should be examined.
Surely, after having cleared the deck, so to speak, Mr Zardari is not planning to appoint a person who would open up the NRO files once again. In this regard, Mr Zardari has a conflict of interest. One cannot concomitantly challenge the integrity and honesty of Justice Deedar Hussain, because he may be of the view that the NRO is no longer relevant in order to move forward in pursuit of the prevalent corrupt practices.
It then boils down to the main question whether NRO is still a live issue. If the answer is in the affirmative, then, as National Assembly Opposition Leader Chaudhry Nisar Ali Khan contends, Justice Deedar is an unsuitable candidate for the position. In the context of this controversy, there is a legal paradox which cannot be easily ignored, according to many constitutional experts. The NRO was issued by General Pervez Musharraf under his self-proclaimed authority which was rejected by the Supreme Court as unconstitutional, and which put Pakistan on track for democracy once again. The orders and ordinances issued under this authority must then be declared null and void, unless they are made ‘regular’ by an act of Parliament.
That is the option that was offered to Mr Zardari concerning NRO. This option was not followed up. The blame for acting upon the matter now is being put on the ‘anti-Sindhi’ Supreme Court. And some senior leaders in the legal community accuse the Supreme Court of pursuing the suicide course, music to the ears of Mr Zardari, but does not resolve the paradox.
The third issue, about Mr Zardari holding chairmanship of the PPP chairmanship concurrent with his office as President of Pakistan, is at present under consideration of the Lahore High Court, which will decide whether it is acceptable under the constitution. There is a serious political question concerning this dual office problem, however.
In the Westminster parliamentary system the role of the president is defined as ceremonial and as a symbol of unity of the nation. In some other European models, president plays an active role in decision-making. In the former system the president is elected by an indirect constituency and in the latter, he receives the mandate in a general election. But Zardari contradicts both models.
The dual office, furthermore, leads to centralisation of power, with no checks and balances, if the party he represents happens to be the ruling party. This is the arrangement Mr Zardari has established for himself, and he does not hesitate, in his presidential activities, to act as a Sindhi. It does not harbinger well for democracy, and will open the door to future leaders as a precedent.
The writer is a retired professor.
izzud-din.pal@videotron.ca