This was inevitable. The confrontation had been building up and it was a matter of time before the executive and the judiciary would start defying each other publicly. They are now close to a collision, and the situation could deteriorate further if the politicians and, more importantly, the powerful military command don’t do some fence-mending.
President Asif Ali Zardari and his government had been forced to reinstate Chief Justice Iftikhar Muhammad Chaudhry and his brother judges as a result of public pressure mounted by political forces led by Nawaz Sharif and the indefatigable lawyers’ community, backed by the civil society and the media. The president’s supporters then crudely tried to take credit for the reinstatement of the 60 or so judges of the superior courts.
The more recent confrontation between the executive and the judiciary started when it became obvious that the PPP-led government wasn’t ready to implement the Supreme Court’s Dec 16 judgment scrapping the controversial National Reconciliation Ordinance (NRO). Despite public commitments by Prime Minister Syed Yusuf Raza Gilani and his ministers that the court verdict would be implemented, no concrete steps were taken for the purpose and instead delaying tactics were used. Certain PPP leaders were heard saying how could their government initiate action against Mr Zardari, the party’s co-chairman who also happens to be president of Pakistan, by writing to the Swiss courts as directed by the Supreme Court to reopen the cases against him. This, indeed, would have been unprecedented and embarrassing for Pakistan’s largest and, in better times, the most anti-establishment political party.
Though government ministers and leaders started appearing in the courts as a consequence of the Supreme Court’s NRO verdict to face the reopened cases of misuse of power and corruption, none resigned or was asked to resign. This should have been part of the natural course of events as ministers and advisers facing such serious charges should have stepped down and cleared their names.
Sadly enough, we in Pakistan were never able to set good precedents. Besides, ministers and lesser minions cannot be expected to resign when their top leaders refuse to quit or even acknowledge that charges against them are serious enough to dent their credibility and render them unfit for holding a high public office. In the case of Mr Zardari, it is clear that he couldn’t become credible in the eyes of most Pakistanis despite managing to seek election as president of Pakistan through a democratic process, after cleverly making opportunistic alliances with political parties having diverse agendas.
While the issue of the Supreme Court judgment on the NRO was unresolved and hanging fire, another one was being created due to the differences between the executive and the judiciary on the appointment of new judges in the superior courts. There are so many vacancies in the superior courts that must be filled to offer some respite to the litigants and remove the backlog. It is a pity that differences between the two pillars of the state are delaying appointment of judges and making the public suffer.
It was also obvious that the Zardari administration, like every past government, wanted its nominees to be inducted into the high courts and promoted to the Supreme Court, in the hope that they would take its side in times of crisis. Chief Justice Iftikhar Muhammad Chaudhry, who was twice restored to his rightful position after being sent home for defying Gen Pervez Musharraf and as a consequence feels stronger, cannot be expected to allow encroachment on his constitutional authority to recommend the appointment of judges. If he could defy a uniformed ruler and stage an unlikely comeback with the support of the people, it would be wrong on the part of a weak government to conclude that it could overrule Chief Justice Iftikhar Chaudhry.
It was a miscalculation by President Zardari, Prime Minister Gilani and their advisers to reject the chief justice’s recommendation regarding elevation of Justice Saqib Nisar, the senior-most judge at the Lahore High Court, as judge of the Supreme Court. The presidential order elevating Lahore High Court chief justice Khwaja Muhammad Sharif as judge of the Supreme Court and replacing him with Justice Saqib Nisar was declared unconstitutional, and suspended by a three-member bench of the apex court that hastily met late in the evening of Feb 13 within hours of the issuance of the two notifications by President Zardari.
It was a stinging rebuke to the president, and one more instance of the failure of his efforts to bring the apex court under his control. The late-evening sitting of the Supreme Court bench, headed by Justice Shakirullah Jan and including Justice Raja Fayyaz Ahmed and Justice Jawad S Khwaja, reminded one of the Nov 3, 2007, judgment of the apex court under Chief Justice Iftikhar Chaudhry against President Musharraf’s declaration of emergency and removal of the top judges. The only difference was that Gen Musharraf, as army chief, refused to accept the Supreme Court’s verdict and instead assembled judges of his choice in the apex court to do his bidding.
This time we have a democratic government in place and, despite its clumsy efforts to take control of the judiciary, it isn’t planning to sack judges it doesn’t like. Prime Minister Gilani, whose main job seems to be damage-control whenever things go wrong due to President Zardari’s impulsive actions, has publicly said that governments do make wrong decisions, but remedial measures could be taken and the judiciary’s verdict on the appointment of judges would be deemed final despite differences over interpretation of the Constitution. One cannot expect such a reconciliatory stand from a military dictator as the nation found out and suffered due to Gen Musharraf’s reckless style of decision-making.
However, the prime minister seems to be playing down the threat to the democratic system by insisting that there is no clash between the constitutional institutions and that things would be sorted out. The situation could be calmed down once, or a few times, but there is no guarantee that the crisis would be overcome after every misadventure by someone like President Zardari, who seems to panic at any challenge to his authority.
There must be something inherently wrong with our democracy that top opposition leader Nawaz Sharif now considers President Zardari as the biggest threat to Pakistan’s fragile democratic system. The democratically-elected president of the country should be the strongest defender of its democratic setup, but we are caught in a strange situation in which the president’s actions are deemed a threat to democracy.
President Zardari’s case now appears hopeless in view of his tainted reputation and non-fulfilment of publicly made promises, but he could still try to make amends by giving up his position as head of the Pakistan People’s Party in an attempt to gain acceptance as president of the country rather than the leader of a particular political party.
It is true that Chief Justice Iftikhar Chaudhry is presently enjoying the trust of his fellow judges. The attempts by the government to create divisions in the judiciary have failed, as we saw Justice Saqib Nisar refusing to take oath as acting chief justice of the Lahore High Court and declaring that he would abide by Chief Justice Iftikhar Chaudhry’s instructions.
However, the chief justice must remember that most judges of the superior courts had in the end abandoned him the last time and some had turned hostile to him. The tables on him could turn if the power equation were to undergo a change. Besides, there must a satisfactory answer to the question agitating the minds of many Pakistanis as to why Justice Khwaja Sharif, the chief justice of the Lahore High Court, isn’t being elevated as judge of the Supreme Court even if Chief Justice Iftikhar Chaudhry is within his constitutional powers to keep him in Lahore, and instead elevate Justice Saqib Nisar to the apex court.
Many people feel that the principle of elevating the top judge of the high court to the Supreme Court should be followed in letter and spirit and this issue shouldn’t be made hostage to other considerations. A serious effort ought to be made to clarify and explain this point as it is creating divisions in the ranks of lawyers, causing confusion among political workers and the general public and increasing animosity between the PPP and PML-N and their allies.
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