It's the primary task was to undo the mischief of Gen Pervez Musharraf's Nov 3, 2007, Emergency, PCO and media gagging laws. The record includes five former Chief Justices of Pakistan and 22 Supreme Court judges that termed Musharraf's Nov 3 actions as unconstitutional and illegal, and thus void in law. These can be undone by a government notification. Certain lawyers linked to Musharraf opposed such restoration through executive order because whatever Musharraf had done on Nov 3 was legal and valid by the validation by the new Supreme Court thus constituted. This is said to make the measures a part of the Constitution to undo which a constitutional amendment is required. This court comprised judges who took oath under Musharraf's second PCO, and had to validate Musharraf's actions. The PPP sticks to this and has let the coalition with the PML-N go.
It is now a political matter requiring adjudication by the common citizenry. Do the people think that Gen Musharraf acted rightly on Nov 3? It is the community's consensus that defines what law is. Pakistanis have done it by massively demonstrating for the cause of Mr Justice Iftikhar Muhammad Chaudhry and the lawyers' movement. That was Mr Justice Chaudhry's recognition as the de jure Chief Justice of Pakistan; the present CJP lacks sanctity. Secondly, the people voted by waking for the stand taken by Fakhruddin G Ebrahim, Aitzaz Ahsan and other leading lawyers. This was further sanctified by the people through the Feb 18 election.
How did they do that? They mostly voted for two parties: the PPP and the PML-N. The PPP's rhetoric of sacrifices for democracy and resistance against dictatorship was decisive. Political realities were different: the second return of Benazir Bhutto on Oct 18 was as a result of a compromise with Musharraf through the US and British mediation. The PPP is fulfilling it now. The rhetoric of sacrifices is only partly true: in terms of the 2007 deal, the PPP's purpose in coming back was to from a government that would strengthen the hands of Gen Musharraf, who would, thanks to America, become Mr Musharraf and lead the War on Terror. The PPP's assigned role was to support Musharraf's leadership in the War on Terror.
The second-largest party, the PML-N, became the darling of Punjab voters because of Nawaz Sharif's unflinching support to the lawyers' causes, including unconditional restoration of the sacked judges. How? Because important changes have occurred in Punjab: the rise of a new middle class that needs more political space than what the feudal-dominated elite used to give them. Now Mian Saheb has risked his share in power at the centre and the control of the Punjab government.
The PPP and PML-N leaders could not agree in Murree, Islamabad, Dubai and in London; first they threw the ball to a committee of jurists that had full representation of the PPP and of President Musharraf. The committee virtually broke up with Justice Ebrahim's walking out and indications from Aitzaz Ahsan that he also agrees. Aitzaz Ahsan's staying quiet for long is being noted by his admirers to his disadvantage.
The PPP stands to lose much popular support if it does not deliver the unconditional restoration of judges. Doubtless, the PPP is replacing the PML-Q's role until the Feb 18 elections of supporting President Musharraf and letting Pakistan be run in accordance with the United States' priorities, especially on the War on Terror. There is confusion and chagrin on the faces of most PPP supporters. The PPP may have shot itself in the foot for short-term benefits through an alternative coalition to include the PML-Q, but dropping the PML-N from the central government.
What will PPP-Musharraf do with the provincial government dominated by the PML-N, one does not know. But fears include that they might be foolish enough to repeat what the establishment did in East Pakistan in 1955 when the Centre dismissed the Jugto Front ministry. Alas! Pakistan's establishment never learnt lessons from its past mistakes.
The bus Pakistanis have missed is of democracy, because the election results of Feb 18 were a historic opportunity. The people had decisively rejected Musharraf and all his works. All his prominent ministers lost badly, many losing deposits. What was needed was a clear understanding of the situation and to realise how pregnant that moment was. However, it is no use crying over spilt milk. That moment has passed. Others facts of life have asserted themselves. Within a few days western powers could have heard respectfully what the PPP and PML-N had to say. Musharraf is stronger today than he was on Nov 3. Why?
Pakistan remains in the control of the "establishment" – call it a permanent or invisible government. It never goes out of office. It comprises the top civil and military bureaucracy, led by the generals, and has the support of all social and economic elites: the majority of the feudals, bankers, industrialists, contractors, the conmen and the conscienceless sharp lawyers are with him. Importantly the US still stands behind Mr Musharraf.
NATO is opposing the peace line taken by Pakistan's new government. The Army has, for the first time, sought support from Asfandyar Wali Khan as its interlocutor in Washington for diverging from the American line. That is now almost an imperative for any Pakistani government. But another fact of life must be remembered.
The Pakistani economy is floundering; it is threatened with insolvency. The money it needs is not available from Pakistan's elites or the poor taxpayers. The taxpayers have been taxed to the limit indirectly. Pakistan's military establishment requires a minimum of half a billion dollars a year to keep it ticking over. But the establishment is additionally running a full-blooded arms race with India in the conventional and atomic spheres. This requires big money that the Pakistani economy cannot provide. Americans were quite generous but they have a big price tag on their aid.
That price seems to require the Pakistani Army being virtually under American orders; it dare not diverge too much from what the Americans want it to do. Anyway, Pakistan is virtually a satellite of the US. The possibilities that presented themselves to Pakistan on Feb 18 were left alone as mere possibilities. No one dared to interpret the election results the way they should have been. If the restoration of the judges had been done together with their release, ordered by the new prime minister, it would have happened. The rest will have followed the reversion of the Supreme Court to its Nov 2 status as a matter of course. Now it will take a long and bruising struggle by all, not merely the lawyers.
When will Pakistan have another cheerful opportunity? The judges' issue is likely to stay for sometime. The Gilani government pettifogs about independence of the judiciary is more important than some personages. The events of the year 2007 showed that independence of judiciary comes from independent judges who would stand up to bullying rulers and command respect from the people. Today, independence of the judiciary requires these 60-odd judges' restoration without conditions and sending home those who took oath under the second PCO of Musharraf.
The kind of restoration the government is planning is to pack the top court with all sorts of judges: a few who are honoured and the rest who found no difficulty in owning allegiance to an anti-democratic individual. This kind of restoration will force the sacked judges, including the CJP, to consult their conscience: Would they like to sit with Musharraf's appointees who owe allegiance to him, and be and be a minority? Certain mischievous conditions are also likely to be attached to their reinstatement about tenures and jurisdictions. These make the whole thing a cruel joke.
The writer is a veteran journalist and freelance columnist. Email: mbnaqvi@cyber.net.pk