Good result, bad process

by Shafqat Mahmood

All card players know that it is easy to play a strong hand well. The real test is making the best of a weak hand. By getting the chief justice to come over to his house, Prime Minister Gilani has demonstrated that he is a very astute political player indeed.

The basics are obvious. The government had absolutely no case. One can quibble over who should have the right to appoint judges, but as the Constitution stands today, the advice of the chief justice is binding. By going against it, the president and the government had put themselves in a very awkward position.

It was also obvious to Gilani, if not to the president and his incompetent legal advisers, that if these notifications are not reversed, a clash with the Supreme Court was inevitable. And if that happened, the government, and perhaps even the democratic system, would be in jeopardy.

This is as weak a position as it can get, but this is where Gilani’s sharp political mind came into play. On Monday, he deliberately made an unusually hard-hitting speech in the National Assembly. Those who know him well were surprised at its tone and the threats that he hurled at the judiciary.

But this was all calibrated. He wanted to raise the ante, harden his position, so that when he gives in, it floors the other party. It is not clear whether any preliminary softening up was done by Aitzaz Ahsan or not, but when the prime minister decided to publicly eat the humble pie and gatecrash the judicial dinner, it had an enormous impact on the chief justice.

This was obvious from the visuals of this meeting. The chief justice was the most gracious of hosts. His beaming smile and ritual words of welcome made the prime minister feel completely at home. It was then that Gilani played the masterstroke. He invited the chief justice to the Prime Minister’s House for tea the next day. The chief justice was presumably so overwhelmed by the prime minister’s unexpected, uninvited and non-egotistical entry that he could not say no.

This invitation was a sharp, crafty, almost wily, move, because the ruling party had already decided to withdraw the notifications of Justice Khwaja Sharif and Justice Saqib Nisar. It had also decided to give in to the chief justice’s recommendations regarding judicial appointments. A face-saver was all that was needed. This was provided by the chief justice going over to the Prime Minister’s House.

This was not the only success. There was another, much deeper and hidden, agenda. It was to reduce the stature of the Honourable Chief Justice among the legal community and the public.

Let us not forget that the main strength of this judiciary has been the wide support it has among the people. This came about not because of the personal charisma of any one individual. In fact, on a personal level, not everything was perfect. The admiration was only due to the courage shown by the chief justice and his colleagues for not bowing before a military dictator.

This raised the stature of the entire institution and reinforced its image of independence. It also made it stand apart from political wheeling-dealing and reversed the judiciary’s historical trend of mixing up with the executive. More importantly, it put the chief justice and the judges on a pedestal far above conniving politicians.

This anointed the entire institution with a sanctity that was a throwback to earlier times, when the judges would not be seen or heard and only spoke through their judgments. The oft-repeated story of a chief justice in the 50s refusing the prime minister’s invitation because the government was a party in cases before the Supreme Court, illustrated this.

Unfortunately, the chief justice’s three-hour tea party with the prime minister has dealt a blow to this image. It looked like unseemly bargaining, a negotiated give-and-take. Par for the course as far as politicians are concerned, not particularly appropriate for the chief justice.

And Gilani is too shrewd a person not to have known this. That is why the way he has played his cards is a masterstroke. He got an honourable face-saver to reverse a bad decision and save his government from further troubles. He was also able to bring the chief justice to the level of a mere mortal, who got what he wanted, but at a cost.

Let there be no mistake. It is good that the government has finally given in to the Constitution and rule of law. It is also a relief that a full-blown crisis has been averted. The only way forward for Pakistan and its democracy is that all institutions work within their assigned spheres.

It is also true that this storm was of the government’s creation. It has repeatedly shown an ability to wade into trouble and then run back helter-skelter. But the process through which this particular crisis has been resolved leaves a bad taste in the mouth.

I so wish that the person for whom I have the highest regard, Mr Justice Khalil-ur-Rehman Ramday, had refused an additional year as an ad hoc judge of the Supreme Court. I know that he was very reluctant and has been persuaded against his will, but this was one time where he should have transcended his innate politeness.

There is much speculation about what was discussed during this long meeting between the prime minister and the chief justice. It is not difficult to guess that Mr Gilani would have talked about his concerns, and he has many. Over two months have gone by and the NRO judgement of the Supreme Court has not been implemented. A possible contempt of the court hangs over his head. Did he give his point of view?

The very fact that this is being mentioned suggests what was wrong with this meeting. The government is a party in a number of cases before the court. In some of them, the prime minister himself is being challenged, such as the promotion of civil servants and implementation of the NRO decision. There may be others. It would thus be fair to presume that judicial appointments was not the only thing discussed over three long hours.

Democracy is a process, not an end that is suddenly reached. There is thus a need to show flexibility and give latitude to the principals involved. But now all eyes would be on the Supreme Court. After having its primacy affirmed on judicial appointments, will it go easy on other matters before it?

In particular, the implementation of the Dec 16 NRO judgment becomes a test case. This is said not because there is a desire for another clash between the government and the court. Only that the credibility of the apex court is at stake. It should either review its earlier decision or insist on its implementation.