Editorial
Much has been written about how ill-advised the executive was in issuing the two notifications, about the appointments concerning two Lahore High Court judges, that ignored the advice of the chief justice of Pakistan and the furore that followed. The matter has, since then, been amicably resolved. Or has it?

overview
Another judges' case
Perhaps, a less cumbersome process than the one suggested in the Charter of Democracy could be helpful in resolving the issue
By I A Rehman
The two-day storm raised by a Presidential howler regarding the appointment of judges of the superior courts ended the way it had to end, because the President had been misled into launching an expedition he had no chance of winning.

"It was a failed attempt to divide the judiciary"
-- Hamid Khan, former president, SCBA, and a prominent leader of the lawyers' movement
By Waqar Gillani
The News on Sunday: There are different interpretations of different Al-Jihad cases. Don't you think Al-Jihad cases and the SCBA case of 2002 have defined the rule of seniority clearly enough?
Hamid Khan: The first Al-Jihad case goes back to the year 1996. It was on the appointment of the chief justices of the high court that the senior most judge of the high court has the legitimate expectancy to become the chief justice. Another thing that was decided was that you cannot appoint ad hoc judges of the SC against a permanent vacant seat in the SC.

"We may be headed for another crisis"
-- Raja Zafarul Haq, senior PML-N leader
By Shaiq Hussain
The News on Sunday: Suppose the government approaches the PML-N on Charter of Democracy (CoD), what will possibly be the leaguers' response?
Raja Zafarul Haq: First of all, let me say the level of mistrust on both sides is very high and it is increasing by the day. We will have to see what the government comes up with and whether it means business.

on the contrary
Perception and legality
The executive may appear to have conceded but not without gaining some moral ground
By Farah Zia
The government has conceded to the Supreme Court and one no longer has to wait for the verdict of the five-member bench that was supposed to hear the government's view about its recommended nominees. For now, the chief justice has complete control over the appointments and his advice is binding. As a matter of fact, it never was under question. As per the seventeenth amendment of the constitution, the advice of the chief justice has primacy and he is the supreme consultee in matters of appointment of judges in the superior judiciary.

"There ought to be wider consultation"
-- Asma Jahangir, noted lawyer and Chairperson, Human Rights Commission of Pakistan (HRCP)
The News on Sunday: How do you view the matter of appointment of judges, legally speaking?
Asma Jahangir: There are three issues. The first is the chief justice's request or summary for the appointment of an ad-hoc judge in the Supreme Court. It's clear that it will only be done by the president. Second is the appointment of Khwaja Sharif to the Supreme Court. Now, in the original Al-Jihad judgment they talk about the principle of seniority being respected which is a good practice all over the world. However, in 2002, during Musharraf's government, judges were appointed out of turn and Al-jihad judgment was revisited. An illegality that was made was covered by a judgement which I consider the same as the judgment of law of necessity. Now this seniority principle that the judges are now relying upon is from the 2002 judgment in the Supreme Court Bar Association case.

'Shadow' government
In all the political crises that have emerged in the past two years, the PML-N seems to be have been pivotal in deciding the outcomes
By Adnan Rehmat
The latest political crisis that the Pakistan People's Party government found itself in, over the jurisdiction of appointment of judges, and which it managed to extricate itself out of just when everything seemed to be going under, has managed to highlight what has come to seem like a familiar pattern over the past two years: the government makes a foolish (but major) mistake, the opposition moves in for the kill, the media ups the ante and the government buckles.

 

 

 

Editorial

Much has been written about how ill-advised the executive was in issuing the two notifications, about the appointments concerning two Lahore High Court judges, that ignored the advice of the chief justice of Pakistan and the furore that followed. The matter has, since then, been amicably resolved. Or has it?

That the government is not exactly happy with the legality of appointment procedure is amply clear. As Asma Jahangir suggests in her interview this is essentially a political question. She has suggested that the government lacks a strategy which she thinks would involve building alliances with opposition and judiciary. What she did not mention was public opinion which I.A.Rehman thinks is crucial in matters related to judiciary.

Interestingly, the public opinion that was on the side of judiciary has seen some new thoughts emerging after the issuance of the first notification by the government. The people want to know if the spirit of the constitution is in favour of appointments to the superior judiciary by the judges themselves. If the stated legal position, as of now, precludes the executive from any role in appointments, why did the two major parties disagree with the framework in the Charter of Democracy? Where are the checks on the power of one state functionary whom none can question? And most importantly where lies the solution?

The thought of solution brings us back to politics which is divisive at the moment. The opposition seems to hold that the procedural reform which is being discussed under the auspices of constitutional reform committee should be left for the future. The Charter of Democracy is not just cumbersome it presupposes non-PCO judges. Therefore the new appointments should be made according to the existing laws.

The government obviously disagrees but there is nothing it can do except bringing the opposition close to its point of view. The onus of devising a new procedure, therefore, rests with the parliament.

 

overview

Another judges' case

Perhaps, a less cumbersome process than the one suggested in the Charter of Democracy could be helpful in resolving the issue

By I A Rehman

The two-day storm raised by a Presidential howler regarding the appointment of judges of the superior courts ended the way it had to end, because the President had been misled into launching an expedition he had no chance of winning.

To begin with, the constitutional position was not in the executive's favour. Both Articles 177 and 193 of the constitution, that relate to the appointment of judges of the Supreme Court and the High Courts, require the President to consult the chief justice. The Supreme Court judgment of 1996 in the Al-Jihad Trust case decreed that the chief Justice's advice was virtually binding on the President. Further, an amendment to Article 260 of the constitution made by General Musharraf excluded matters relating to the appointment of judges from the cases in which consultation was not binding on the president. In the presence of these provisions it was not open to the President to disregard the chief justice's advice. That the chief justice may be guided by subjective considerations is another matter.

The government's advisors ignored the lesson distilled from human experience through ages that in many situations discretion is the better part of valour for all authorities, judicial as well as executive, and that they should avoid taking decisions they could not enforce or if they did not have the courage to stick to their decisions regardless of consequences.

Above all, the government failed to take into consideration the fact that public opinion was not on its side. The judiciary's record in Pakistan could have convinced anyone that the mood of the people in the streets has a decisive bearing on judges' choices of options in situations of conflict with the executive. Makhdoom Ali Khan highlighted this fact when in his introduction to the 1973 constitution he traced the Indian judiciary's transition to an activist role:

"The Supreme Court of India declined to examine the validity of a constitutional amendment in Sankari Prasad (1952), extended its jurisdiction while refusing review in Sajjan Singh (1965) and denied to Parliament the right to pass any law inconsistent with fundamental rights in Golak Nath (1967). From this extreme position it moved to the much more viable and logically sound theory of basic structure in Kesavnanda Bharti (1972) and while retreating in many areas during the Emergency stood firm on this ground and has continued to do so".

Throughout this period of transition the Supreme Court of India had its eyes on political currents in the country and the major swings in public opinion. Public opinion may not be in the right always but its weight matters.

That judges cannot remain unaffected by public movements has been aptly explained by a famous judge who declared that "the great tides and currents that engulf the rest of men do not turn aside in their course and pass the judges by".

It should not be forgotten that in both India and Pakistan the political authorities have provided openings, through their arbitrary actions and disregard for the judiciary's rights, to judges to assert their autonomy. By such policies the executive also alienated the people. In Pakistan the judiciary is still riding high on the crest of the sympathy wave generated by the lawyers' movement. While the need to revise the present formulation on judges' appointment cannot be denied, only a government enjoying full public support by virtue of its services to the people will be able to complete the task.

Unfortunately, matters relating to the division of powers in a democratic state have seldom been seriously debated in Pakistan. India is far ahead of Pakistan in this regard; they had their Judges Case earlier than us and the Indian Supreme Court has had to give rulings on appointment of judges more than once.

In 1993, while deciding a petition filed by an association of lawyers, the Court declared that the power to appoint judges lay with a collegium of judges consisting of the chief justice and two senior judges of the Supreme Court. Five years later, the Supreme Court was asked to give its opinion on a Presidential reference on the subject and on this occasion the court raised the strength of the collegium to five – the chief justice and four senior judges of the Supreme Court.

These decisions in the main are quite in accord with the spirit of the Indian constitution which says: "Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and the High Courts in the States as the President may deem necessary for the purpose….

"Provided that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted."

However, the National Commission to Review the Working of the Constitution has suggested that the power to appoint judges should be vested in a body that is independent and represents the government, the opposition and the judiciary.

Thanks to a climate of free discourse it is possible in India for a well-known writer to challenge the claim of the judiciary to have exclusive power to appoint judges, as evident from the following passage:

"What is the guarantee that independence of the judiciary shall remain safe if the final power of appointment of judges is vested in a collegium of judges? I do not know of any democratic country in which the power of appointing the judges vests in the judiciary itself. The judiciary should be independent but does it have to be completely autonomous in a democracy? Should judges not be accountable to someone? Why should the Court arrogate to itself the power to decide how judges should be appointed? Why should Parliament not legislate a constitutional amendment to lay down more objective procedures for appointment of judges? Judicial activism here amounted to judicial expansionism because the Court expanded its own powers. Under the guise of interpretation of the Constitution, can the Supreme Court change the basic structure of the Constitution? The basic structure consists of division of powers and functions between the Parliament, the executive, and the judiciary. The Court claimed a power to itself that the basic structure of the Constitution did not envisage."

In Pakistan, the late Justice Dorab Patel was among the first authorities to suggest a change in the process for the appointment of judges. He proposed that the country's chief justice should be chosen by the head of state in consultation with the leader of the house and the leader of opposition in the National Assembly. Recently, the issue was taken up by the late Benazir Bhutto and Mian Nawaz Sharif. The Charter of Democracy signed by them proposes a scheme of broad-based consultation for the appointment of judges. The parliamentary committee on constitutional reforms is reported to be working on this proposal.

Perhaps, a less cumbersome process than the one suggested in the Charter of Democracy could be helpful in resolving the issue. It is this direction that all those who believe in a fair separation of powers need to adopt, otherwise storms like last week's will continue to spoil the judiciary-executive relations, and possibly at the cost of justice.

 

"It was a failed attempt to divide the judiciary"

-- Hamid Khan, former president, SCBA, and a prominent leader of the lawyers' movement

By Waqar Gillani

The News on Sunday: There are different interpretations of different Al-Jihad cases. Don't you think Al-Jihad cases and the SCBA case of 2002 have defined the rule of seniority clearly enough?

Hamid Khan: The first Al-Jihad case goes back to the year 1996. It was on the appointment of the chief justices of the high court that the senior most judge of the high court has the legitimate expectancy to become the chief justice. Another thing that was decided was that you cannot appoint ad hoc judges of the SC against a permanent vacant seat in the SC.

The second Al-Jihad Trust case, 1997, was also called the presidential reference of 1996, too. In this case, it was decided as to who has the authority to appoint judges -- the president or the prime minister. It was said that the advice of the PM should be taken.

The third Al-Jihad case, 1998, also called Malik Asad Ali Case, held that it was the senior most judge who had the legitimate expectancy to become the CJ.

In the SCBA case, which I filed in the capacity of its president, we said that the seniority principle should be maintained in appointing SC judges. The SC five-member bench did not agree, saying that the seniority principle was not available in the appointment of the SC judges; it's available only for high court chief justices and Supreme Court chief justices. Because this is a fresh appointment and not a promotion and because this is not a convention in the past, this was not acceptable. Even today, I believe seniority should be kept in view.

TNS: How do you view the dispute on the elevation of Justice Saqib Nisar from LHC to SC?

HK: See, there is no good faith in the present situation. Appointments of junior judges in the SC from Sindh High Court have already been made. This has been done by the present government itself. In Sindh, number three judge, Arif Khilji has been appointed as SC judge. The government just wanted to create an issue. It was a failed attempt to divide the judiciary. Also, the government wanted to sweep the implementation of the NRO verdict under the carpet. It was a clear miscalculation on the part of the government. In fact, there was a mischief. The judiciary, remaining united, foiled the attempt.

TNS: What should be a fair and clear transparent procedure of the appointment of judges to superior courts?

HK: On behalf of the lawyers we have already given a draft of amendment in which we have proposed a national judicial commission which will consist of seven judges. Six lawyers and six parliamentarians is the body we have proposed. But for that you will have to introduce a constitutional amendment. In the Charter of Democracy (CoD), they accepted a portion of that proposal. But now they seem to be going for parliamentary committees which is not the agreeable thing, in my view.

There was a proposal in judicial commission that said that there would be a seven-member committee for the candidates' public hearing. Anybody can raise objections on the candidature. These are the proposed names and anybody can object and point at any professional misconduct. There is transparency in that proposal. But unless there is no new law, you cannot defy the current procedure.

TNS: There is a strong impression in the civil society that we are moving towards a judicial tyranny or a sort of a judicial dictatorship. What is your take on this?

HK: I have a question: why was the government/executive working against the law? It is harmful if the appointment of a judge is the sole discretion of the president or the prime minister. They will like to have a judge who is easy to influence.

TNS: There are reports in the press that the new appointments [of judges] have been made from groups that stood by the CJ, like your eminent group? Is it so?

HK: This impression is absurd; I am not a person to recommend anybody as judge. But, again, having political affiliations cannot disqualify a person if he is competent enough to be a judge and fulfils the criteria.

TNS: What is your take on the appointment of ad hoc judges? Do you think the demand for appointing Justice (r) Khalilur Rehman Ramday as ad hoc judge is justified?

HK: There have been judges who were appointed ad-hoc after retirement. The constitution provides for that. Article 182 clearly says that there can be ad-hoc judges who are appointed as judges within three years of their retirement by the president on the advice of the CJ through the prime minister. Justice (r) Ramday has been a good judge. Besides, Justice (r) Ghulam Rabbani is an ad hoc judge. There is nothing unconstitutional in it. But I am not going into the merits. If you ask me, I don't think Justice (r) Ramday should be appointed an ad-hoc judge only because he has become virtually a hero of the lawyers' movement and a man who has a big stature?

TNS: It seems bar has jumped into politics and is now divided?

HK: Bar's support to the judiciary is natural because independent judiciary and independent bar are must. Bar should support judiciary's independence. It is apolitical. Though its members may have political affiliations. A few members of People's Lawyers Forum (PLF) tried to disrupt the bar meetings. The PLF does not show the collective opinion of the bar.

 

"We may be headed for another crisis"

-- Raja Zafarul Haq, senior PML-N leader

By Shaiq Hussain

The News on Sunday: Suppose the government approaches the PML-N on Charter of Democracy (CoD), what will possibly be the leaguers' response?

Raja Zafarul Haq: First of all, let me say the level of mistrust on both sides is very high and it is increasing by the day. We will have to see what the government comes up with and whether it means business.

TNS: The CoD is all about non-PCO judges. Is the PML-N ready to dispense with the present lot of judges?

RZH: The CoD is all about future appointments and it has nothing to do with the present lot of judges.

TNS: Don't you think the judges' appointment was an issue to be sorted out by the executive, and the judiciary, which is now very much independent; the PML-N interference was uncalled for?

RZH: No, we didn't interfere or make an issue out of it. I'd rather say it was thanks to the efforts of the media, the civil society, the legal fraternity and political parties including PML-N that led to the restoration of judiciary.

TNS: Don't you think the resurfacing of differences between PPP and PML-N will take the country back to the 90s which will only strengthen non-democratic forces?

RZH: No, we are not heading back to the 90s which was a period of political confrontation. We only want the government to put an end to rampant corruption, end disrespect to institutions and work for good governance.

TNS: Is your party planning to launch an anti-Zardari campaign, on the pattern of the Long March? Are you looking for a mid-term election?

RZH: Any answer to this question now would be premature. Having said this, I'd ask the government to start addressing the real issues confronting the nation and work towards improving their lot.

TNS: What were the government's real motives behind the issuing of the judges' appointment notification, and what forced it to withdraw the same?

RZH: I believe there are certain elements within the government that won't give a competent advice. Either they don't have the required knowledge of constitutional matters or they simply suggest things that suit the wishes of the person being advised. These very people misled the President and the PM in the matter of the judges' appointment. But when the situation aggravated, the rulers had to retreat. In this connection, some part was played by Aitzaz Ahsan and the attorney general.

TNS: Now that the government has decided to appoint judges in line with the summaries moved by the higher courts, do you see any chances of implementation of the apex court verdict on NRO?

RZH: See, General (r) Pervez Musharraf was wrongly told that the present lot of judges would not support his candidacy for the President and so he tried to dispense with the judges he disliked. Similarly, the present rulers are convinced that the decision given by the Supreme Court on NRO would badly affect their interests. But it is saying it will respect the court verdict [on NRO], which I don't buy. Can it afford to show the door to its [NRO-tainted] ministers? We may be headed for another crisis in the next few days.

 

on the contrary

Perception and legality

The executive may appear to have conceded but not without gaining some moral ground

By Farah Zia

The government has conceded to the Supreme Court and one no longer has to wait for the verdict of the five-member bench that was supposed to hear the government's view about its recommended nominees. For now, the chief justice has complete control over the appointments and his advice is binding. As a matter of fact, it never was under question. As per the seventeenth amendment of the constitution, the advice of the chief justice has primacy and he is the supreme consultee in matters of appointment of judges in the superior judiciary.

The definition of consultation as laid down in the Al-Jihad case was incorporated in the constitution through amendment of its Article 260. If the executive disagrees on any appointments, it has to record its reasons, and those reasons are justiciable by a bench of the Supreme Court.

So, the executive knew it did not have a legal case. And yet it issued this notification regarding the elevation and appointment of two judges, both from the Lahore High Court. Many believe that the executive was ill-advised in doing what it did.

Imagine a scenario where the government had accepted the advice of the chief justice as final even in the most recent case of appointment. After all, it had been consistently conceding to the chief justice's advice in a little more than fifty appointments and elevations ever since the judiciary was restored in March 2009 (there were valid objections including violation of seniority principle regarding some of these but the executive let them pass). The matter would have settled silently like before and Khwaja Sharif would have stayed on as the chief justice Lahore High Court and Mian Saqib Nisar would have been elevated to the Supreme Court.

But, by issuing these two notifications, the executive has achieved something which it would not have been able to do otherwise. It has conveyed that there is a bigger moral and political issue involved here -- a certain imbalance in the system and an unaccounted-for power in the hands of the chief justice. It has raised this question that when an organ of state takes certain decisions, why is it not required to give reasons while other organs of the state are?

Precisely that the existing legal framework is not workable in its present shape. Already, alternate viewpoints have started emerging. Questions are being raised about the wisdom behind concentrating all powers in the hands of the person of the chief justice and the lack of transparency in the method of appointment. The right of people to know why particular choices are being made is also being emphasised.

In the absence of clearly laid down principles (the matter of "suitability" and "fitness" being entirely in the hands of chief justice who is not required to share the reasoning for the choices that he makes), the seniority principle is a legitimate consideration – and the 1996 Al-Jihad judgement lays that down. If that is not being followed, then people want to know the reasons and rightly so.

Even within the bar, there are concerns. There is a sense that in effect two tiers of judges is being created within the judiciary – those who took oath under the Dogar court and those who did not. By according a special treatment to those six judges who did not take oath, a system of reward and punishment is being instituted. Incidentally, the two judges who had been favoured – one to be retained as the chief justice of Lahore High Court and the other to be appointed as ad hoc judge of the Supreme Court -- happened to be those who stood by the chief justice. On the other hand, the judge who has been denied the chance to become chief justice falls in the second tier.

Since the procedure of appointments lacks transparency, people in the bar feel that wrong signals are being sent to the judiciary which may compromise its independence.

The legal standpoint draws sustenance from the various judgements that have appeared regarding appointment of judges in the last fourteen years. Beyond the contradictory views that these judgements carried, there stands Article 177 as it originally appeared in the constitution of 1973 and merits another reading.

"The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the President after consultation with the Chief Justice". The will of the framers of the constitution is amply clear even if a little vague. The rest is all interpretation by the courts where the judges decided to keep all powers to themselves with obviously no input by the elected members of the people.

Consequently, we have come to a point where "consultation" does not mean what it should but that it is binding on the executive. The Al-Jihad case interpreted the word consultation contrary to the accepted principle of interpretation of statutes – that words should be taken to mean as they are ordinarily understood.

This case borrowed a lot from a controversial decision of the Indian Supreme Court also called the Judges Case where the word "consultation" has been interpreted to mean "concurrence".

Perhaps, it is wiser to again go back to what Dr Ambedkar, the chief architect of the Indian constitution, had to say on the matter. Soon after independence the constituent assembly in India discussed the issue of appointment of judges and some members thought it best to give this power to the chief justice. Dr Ambedkar disagreed and said:

"…who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgement. I personally feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointments of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day."

Therefore the government may have appeared to stand on a slippery ground when it issued the two "illegal" notifications, it did manage to take the debate ahead from where it stood, even if inadvertently. Now, the imbalance in the system is there for all to see. The political parties may decide to bring the matter before the parliament and shape up an alternate mechanism -- Charter of Democracy or an independent commission which is more inclusive and incorporates the principle of checks and balances.


"There ought to be wider consultation"

-- Asma Jahangir, noted lawyer and Chairperson, Human Rights Commission of Pakistan (HRCP)

The News on Sunday: How do you view the matter of appointment of judges, legally speaking?

Asma Jahangir: There are three issues. The first is the chief justice's request or summary for the appointment of an ad-hoc judge in the Supreme Court. It's clear that it will only be done by the president. Second is the appointment of Khwaja Sharif to the Supreme Court. Now, in the original Al-Jihad judgment they talk about the principle of seniority being respected which is a good practice all over the world. However, in 2002, during Musharraf's government, judges were appointed out of turn and Al-jihad judgment was revisited. An illegality that was made was covered by a judgement which I consider the same as the judgment of law of necessity. Now this seniority principle that the judges are now relying upon is from the 2002 judgment in the Supreme Court Bar Association case.

So, strictly speaking, it is legal that the chief justice can do it but surely chief justice does not have arbitrary power to do everything. There are certain fundamental principles of appointment of judges for the superior judiciary and traditions. The parallel that is drawn is with India but there they have wider consultations. It is a hybrid system where the executive and judiciary can do it together.

If the judges [here] argue it is simply their prerogative and nobody can question it, this amounts to judicial dictatorship. It unacceptable just like saying the executive should have more weightage in the appointment of judges. And this friction will carry on.

In our case, the issue of one single judge being blown out of proportion, when we are faced with so many catastrophes in this country, is because this is a fight for power turf which does not suit any judiciary. After all there is nothing wrong in elevating a senior-most judge because Supreme Court is not exactly a dumping ground, nor should the chief justices want to stay where they are. This doesn't go well even for independence of judiciary.

As for appointment of judges to the high courts, the chief justice's and judges' recommendations should have more weight The fact that the government sits on it without giving reasons is something illegal.

The issuance of two notifications is also problematic; asking a junior judge to become the chief justice when that seat is not vacant yet. This is a huge blunder made by the government which obviously does not have any sound legal advice. Now if the government wants to assert itself as a partner in the appointment of judges, it should have a strategy in mind because it is a political question. If it doesn't have alliance with opposition, GHQ or judiciary, what is it banking on?

TNS: What about the other democracies of the world where the executive is the appointing authority?

AJ: Everywhere it's either the executive or the legislature or together with the judiciary; even in the United States. Besides, our judicial history is also not so worthy that w can only say that the politicians are corrupt. No one is Mother Teresa here.

I would say that they should let the people have the confidence that there is going to be a wider and equal consultation. My second advice is that we have to get out of this impasse -- that all the recommendations made either by the chief justice or executive or together have to be made transparent.

I as a lawyer and a citizen would insist on two basic things. One is that the lawyers who are being recommended should have to show their reported cases and their tax returns. If a lawyer has given no tax on his income, he is not worth his salt to be elevated. After all judiciary is a service-oriented body and it has to serve the people and deliver justice. And justice is only possible if there is efficiency and capacity in the judiciary and of course impartiality.

TNS: Do you think in the present situation public has a right to know the reasons why the chief justice is not elevating a particular judge and should those reasons not be made public?

AJ: Yes, the public has every right to know why he is not being elevated. What are the special skills that Khwaja Sharif has suddenly developed that we as members of the bar actually never found out.

I believe if the judiciary wants to take on the executive on every issue then the matter is not going to end here. The whole concept of the judiciary acting as a union [is wrong]. It is supposed to be an institution of the people which is independent individually and then collectively.

TNS: There is this criticism in the bar that, after the recent round of appointments, there are now two tiers of judges and a system of rewards and punishment is being instituted?

AJ: It is very clear. The fact is that this government has made mistakes. This government retained Justice Dogar and we denounced the Dogar era with full might. Then this government sort of tried to divide the judiciary. But the fact remains that after the judiciary was restored, it sent all the PCO judges home. I would also like to say that the bar is also divided now despite the fact that there is a lot of influence of the judges on the bar. The bar members are terrified of saying anything against the judiciary particularly at this time when the judiciary has a populist appeal. Nevertheless there is a divide.

So rather than the judiciary becoming a more unified force and taking the system forward by definitely keeping the executive in check which is expected of it, they have become partisans themselves. It should have remained a neutral body that we wanted it to be so that we could have fought against the executive all the time.

TNS: People see a connection between the government's aggressive attitude and the NRO judgment?

AJ: I have talked extensively about the NRO judgement. The connection is in perception of people. People feel that there is constant firing from the Supreme Court, one after another, rightly or wrongly.

The NRO judgment issue is still alive. It's a bad law. It should have been struck down. By striking it down, in the meanwhile, SC gathered so much jurisdictions to itself that it virtually became a supra-constitutional body or legislative body. So I think if they are going to say what the legislature should do, see whether the legislators are within the domain of Articles 62 or 63, fix the price of sugar, run Kinnaird College, allow us to fly kites or play dolls, then they'd better take over.

(This interview was conducted prior to the second notification regarding the appointment of judges)

--Waqar Gillani and Farah Zia

 

'Shadow' government

In all the political crises that have emerged in the past two years, the PML-N seems to be have been pivotal in deciding the outcomes

By Adnan Rehmat

The latest political crisis that the Pakistan People's Party government found itself in, over the jurisdiction of appointment of judges, and which it managed to extricate itself out of just when everything seemed to be going under, has managed to highlight what has come to seem like a familiar pattern over the past two years: the government makes a foolish (but major) mistake, the opposition moves in for the kill, the media ups the ante and the government buckles.

The bit about the opposition in this pattern is almost synonymous with the Pakistan Muslim League-N of former prime minister Nawaz Sharif. True, what constitutes the political opposition is more than just the PML-N (such as in-parliament PML-Q of Shujaat Hussain and the noisy extra-parliamentary groups such as Munawar Hassan's Jamaat-e-Islami and Imran Khan's Tehrik-e-Insaf) but for all practical purposes the party of the Sharif brothers carries with itself two major strong points that makes it formidable: being the second-largest party in the National Assembly and being in government in the influential Punjab province.

These political advantages have afforded them a near invincible clout in influencing national events. More enviously, by playing their cards smartly, most of the time, the PML-N/Sharifs have found themselves the political beneficiary every few months not by dint of conscious effort but thanks to the sheer inefficiency of the PPP.

Patterns within patterns

Another pattern evolving within the larger pattern that has come about since the 2008 general elections is that it is usually an issue relating to a legal problem that snowballs into a major political crisis and before anyone can say Pakistan People's Party and Pakistan Muslim League-N in the same breath, the PML-N threatens a recourse to the superior courts, launches an attack on President Asif Zardari and for added emphasis the Sharif brothers threaten a long march to Islamabad to settle the crisis.

After the 2008 elections, the PML-N pressed the need to start implementing the Charter of Democracy signed by Sharif and assassinated former prime minister Benazir Bhutto. Of course, the PPP has never looked an enthusiastic supporter of implementing the Charter and it almost seems like it wishes the pact had died along with Benazir. The PML-N even agreed to co-habit the federal government in pursuance of the Charter, which was the surest way for the restoration of the eligibility of Sharif becoming the prime minister for a third time. The last thing that the PPP wanted was to make Sharif even more potent politically.

PPP's baulk-anisation

The pattern kicked off almost immediately after the 2008 general elections and the formation of governments in Islamabad and Lahore. The PML-N wanted immediate restoration of the large number of judges sacked by military dictator Pervez Musharraf through his quasi martial law in November 2007. The PPP first baulked then dilly-dallied. There were dark mutterings from Zardari and Prime Minister Yousaf Gilani about where were the courts to dispense justice to them when PPP leaders were in jails and facing a slew of charges.

Sharif and PML-N, on the other hand, had much to be grateful to the courts about (upholding the rights of citizens against being sent to forced exile and eligibility to run for 2008 elections, for instance). The PML-N launched an attack on Zardari for not keeping his promises despite inking them. When the government didn't budge, the PML-N quit the ruling federal coalition and invested in supporting and managing a long march to Islamabad. The strategy succeeded and the PPP government relented, restoring the judges, including Chief Justice Iftikhar Chaudhry.

Action replay

The pattern was repeated when PPP over-stretched itself by trying to do a Musharraf on the Sharifs by imposing governor rule in Punjab and disabling the PML-N government in the province and even supporting the contention that Shahbaz was ineligible to be chief minister. The Sharifs threatened another long march and mobilised the streets. They also lay recourse to the superior judiciary and got relief, and status quo ante on Takht Lahore was restored. The PPP beat a political retreat. Again.

A sense of déjà vu prevailed when the pattern was repeated again over the controversial NRO, a Musharraf-era temporary law that gave several PPP leaders amnesty against prosecution on a slew of corruption charges dating back a decade. Standard bungling on its legal and political defense (or the lack thereof) by PPP led to the inevitable typical cold war with the judiciary. When the NRO was virtually declared dead by the courts (asking it to get approved by parliament was a non-starter thanks to fierce opposition by PML-N), the PPP went into a great sulk again and responded by passive progress on implementation, which is to say it went nowhere with it.

PML-N pressure

The proverbial dust had not settled when the PPP decided to strike back in slow-motion against the judiciary in its by now familiar routine of non-action on the issue of appointment of dozens of judges to the Supreme Court and the high courts. As it sat for weeks on recommendations from the courts for new appointments, pressure grew, predictably, mainly from the PML-N for acceding to the judiciary's requests. Sharif's party, again predictably, applied to become party to petitions against the PPP government in the Supreme Court on the judges' appointment and threatened a long march to get vacancies on the bench filled up. Predictably, the PPP government offered bluster as a substitute for common sense and made appointments in disregard to the chief justice's recommendations. Sharif held a press conference and blasted Zardari for the umpteenth time. Unsurprisingly, PPP relented and acceded to the judiciary totally.

In all the political crises that have emerged in the past two years, the PML-N seems to be have been pivotal in deciding the outcomes. Agreed, the media, the judiciary and the military have been powerful players in this period but the PML-N seems to be operating as a shadow government, forcing alterations in policy courses, at times even dictating national agendas and all the while gaining strength and setting itself up as an alternative political force to take up the reins of governance in case PPP finally succeeds in shooting itself fatally (Zardari's party certainly can't be confused with lethargy on this count).

Waiting in the wings

While PPP at least has the political maturity to admit mistakes and move back from the brink when it matters, unlike the Musharraf dispensation, the PML-N is relishing the role of opposition and playing it almost as well as the PPP when it is in opposition.

What is also going right for PML-N is that at the national level it is in opposition and in Punjab it controls state resources to consolidate itself and neutralise any political threats to it. Come October 2010, when 10 years will have lapsed since Sharif was last time a legislator and the formal-informal bar on him for not holding a public office will expire, things can be expected to move into faster gear.

Make no mistake, the PML-N will continue to single out Zardari for attacks and keep Gilani under pressure on governance over most of 2010 and position itself to force early elections after the PPP finds itself embroiled under another crisis, predictably another legal wrangle – this time over the implementation of the verdict on NRO.

In the game of politics, the short-term loser certainly has been PPP despite the major sacrifices it has rendered to bring democracy back after Musharraf's weary reign of eight years. Being in government at a time when judicial activism and media activism are reaching new highs (in addition to the ubiquitously strong military) was always going to be tough. But it seems that the PPP is trying especially hard to give away the fruits of its labour to other forces who seem to be playing it much smarter than them. If only PPP was smart enough to team up with PML-N to both be winners and feed off each other's strengths. Now it seems PML-N is feeding itself off PPP's weaknesses and gaining strength. It should be an interesting 2010.

 

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