The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law S
ByBabar Sattar
March 07, 2009
The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School
The withdrawal of the Mobile Courts Ordinance was a sensible move. But the prime minister, while announcing his decision to withdraw the law because it undermined sovereignty of the parliament, did not explain why his cabinet approved the law to be promulgated as an Ordinance in the first place. After all, the procedure for executive approval of a law to be introduced by the government as a legislative bill or an ordinance is the same: it needs to be approved by the cabinet for onward submission to the legislature or the president. If the prime minister earnestly believes that timing the issuance of ordinances under Article 89 to sidestep the legislature is an abuse of presidential powers and a pernicious encroachment over the legislative domain of the parliament, why has the baleful practice continued during his tenure?
Several inferences can be drawn from the sordid affair of the promulgation and withdrawal of this maleficent piece of legislation. One, either the prime minister and the president are deliberately orchestrating a good-cop-bad-cop routine for the nation's amusement and to create elbow room to retreat from really rotten party decisions or the spinelessness of our popularly elected head of government is seriously worrisome. Let us remember that despite the 17th Amendment (and remnants of the 8th Amendment) that continues to blemish our Constitution, the president is presently vested with no legal authority to interfere with the decisions of the federal government. The president has powers (i) under Article 58(2)(b) to sack the National Assembly and (ii) to make the most powerful executive appointments in the state (governors, chief election commissioner, army chief etc.) in his discretion.
But despite the molested state of our Constitution at present, the president has no power to instruct or summon even a secretary heading a division of the federal government. The only reason why the president is able to run the federal government from the presidency is because the prime minister has abdicated his constitutional authority and mandate to the president. The practice of separating power from constitutional authority and responsibility in statecraft has been a contrivance of our succeeding dictators. It is shocking that our elected governments insist on imitating the crooked practice. Let us understand that Mr. Zardari's ability to control and influence our system of governance does not spring from the Constitution and the law; but from his stranglehold over the PPP and the pusillanimity of the pygmies surrounding him who simply lack the courage or dread the consequences of candidly speaking their minds.
The other messages of the Mobile Courts episode are that (a) the Zardari-led PPP has no appreciation, regard or patience for procedural due process, and as it views law as a means to pursue its agenda and perpetuate itself in power it cannot afford to have an independent judiciary that is constitutionally mandated to function as a check on malfeasant exercise of executive authority in the state, and (b) the ruling regime has no understanding of or interest in addressing the core problems that are responsible for the plunder of our justice system: the dwindling capacity, ability, independence and integrity of the guardians of law.
Mr. Zardari (which is probably the pen-name Ambassador Hussain Haqqani uses to write for US press these days) had the audacity to state in a Wall Street Journal Op-ed this week that the Sharif disqualification decision was evidence of "an independent judiciary" and because the "overwhelming majority of superior court judges dismissed under the previous government's emergency rule has returned to the court, the judiciary of Pakistan has been restored and is independent." That an intellectually and morally corrupt Zardari-led regime would make this argument to confuse public opinion regarding the imperative of unconditional restoration of the Nov 2nd judiciary was one of the reasons why even pragmatists in the lawyers' movement opposed the unprincipled return of judges deposed on Nov 3, 2007, upon swearing a fresh oath.
On a side note, Ambassador Haqqani is a smart man. But he unfortunately succumbs to the inexplicable temptation of making 'cute' arguments – that are not logically consistent or intellectually appealing – in what becomes a failed attempt to embellish his benefactor. For example, in the Zardari WSJ article – and incidentally also in an article written by Farahnaz Ispahani (Mrs. Haqqani) for The News a couple of days ago – the Bush v. Gore ruling of the US Supreme Court has been compared with the Sharif eligibility case to make the point that political parties, and the nation as a whole, should simply accept court rulings notwithstanding their content and move on with life. This is a false argument for three reasons.
One, the Bush v. Gore forms part of the sorry history of the US Supreme Court where the court ruled along partisan lines, held, probably for the first time, that the judgment will not be a precedent for any other case, and consequently lowered itself in public eye as well as its own. Justice Stevens, who was in the minority in Bush v. Gore, had poignantly stated at the time that, "We may never know with certainty the winner of this year's presidential election. The identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law".
Two, the Sharif ineligibility case could have been comparable to Bush v. Gore if the Supreme Court had been appointed or sustained extra-constitutionally by President Bush and then it ruled in favour of Bush, as happened in our case where the Sharifs' threatened to emerge as the nemesis of the PCO-ridden Dogar Court that continues to exist due to the unprincipled support of an incorrigible PPP. And finally, if Zardari-led PPP has suddenly woken up to the need for unconditionally accepting all court rulings, however unjust, what is even the argument in favour of keeping Chief Justice Iftikhar Chaudhary out? Why not bring him back and faithfully accept whatever judicial decisions the Supreme Court renders under his leadership?
The diminished number of judges that still await restitution is irrelevant and doesn't dilute the principle that underlies the demand for restoration: that Musharraf's actions of Nov 3rd, 2007, were unconstitutional and cannot be validated by anyone as was done by the compromised Dogar Court in the Tikka Iqbal Mohammad Khan case; the Constitution can never be suspended, notwithstanding how disenchanted the ruling regime, an army chief or president is with the decisions of a constitutionally appointed judiciary; judges cannot be removed except pursuant to the process laid out in the Constitution and; the Constitution will not be fully revived and the judiciary restored unless the wrong done on Nov 3rd, 2007, is remedied in a principled manner.
Restoration of Chief Justice Iftikhar Chaudhary, Justice Ramday, Justice Khawaja Sharif and other deposed judges is not the be-all and end-all of an independent judiciary. But it is the crucial first step without which Nov 3 cannot be undone, the sanctity of judicial office and the constitutional security of tenure cannot be restored, and an earnest message cannot be disseminated that the era of executive cherry picking favourable judges is over and that the power of judging has irreversibly been separated from the executive and legislative powers of the state as mandated by the Constitution. Restoring the still-deposed judges is the litmus test for Mr. Zardari's commitment to judicial independence precisely for the reason that Justices Chaudhary, Ramday and Khwaja Sharif are perceived by the Zardari-PPP as unfriendly. Security of tenure is a mandatory precondition if an independent judiciary is to be assembled in Pakistan, which can discharge judicial functions without considerations of fear or favour.
Mr. Zardari refuses to restore judges removed illegitimately by General Musharraf due to the content of their judicial decisions despite ironclad constitutional guarantee of tenure; his regime continues to consider twisted ways to extend the tenure of Justice Dogar, inspired by his unconditional allegiance to the agenda of the ruling regime as reflected in his judicial decisions since Nov. 3rd, 2007 and; yet Mr. Zardari pays lip-service to the cause of judicial independence in his Wall Street Journal piece while beseeching Americans to disregard the enigmatic lawyers' movement and the outrage of his nation over unjust court rulings. Does Mr. Zardari not realize that his constituency is the people of Pakistan and not subscribers of Wall Street Journal? Why has our ruling political elite become so psychologically disempowered and morally bankrupt that it finds the need to seek the blessings of successive US administrations more pressing than courting public opinion in Pakistan and abiding by the wishes and aspirations of citizens it pretends to represent?
