Once bitten, twice shy

The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School

The Islamabad communiqué has given this nation hope once again. The general who mutilated our sacred Constitution twice will be impeached, we are told. His illegal actions of Nov 3 will be reversed, the judiciary of Nov 2 will be restored through an executive order, the amendments made to the Constitution under the barrel of a gun will be revoked, and the coalition of democratic forces will stay intact and work in unison to rid the people of the many miseries challenging their lives. These are all worthy goals. If the general is impeached and removed, as he should be, this event will go a long way in strengthening rule of law and constitutionalism in Pakistan. But sincerity of purpose is always subject to proof.

There are at least three ways of analysing the significant announcement of Thursday. The optimists have reason to be jubilant. A coalition government that initially gave the nation immense hope for a better future but quickly stumbled towards a collapse threatening to undermine the prospect of democracy itself in the country seems to have found its feet again. After careful deliberations, the PPP-led coalition has announced the resolve to impeach Gen Musharraf. According to the communiqué, the first step in the journey towards impeachment will be a resolution passed by each provincial assembly expressing lack of confidence in the general. A National Assembly passing its own resolution requiring the general to seek a vote of confidence from the Parliament will follow suit.

The no-confidence motions passed by all the constituent units of the president’s electoral college would be aimed at creating a legitimacy-deficit for the general and provide him with time and encouragement to resign, instead of being removed. Should the general remain obdurate and refuse to see the writing on the wall, Parliament would impeach and remove him as a measure of last resort. This strategy and time consumed in going through the provincial and N ational Assembly resolutions would enable the coalition partners to ascertain with certainty whether they have the required votes to remove the general. It would also provide an opportunity to gauge the reaction of non-representative (domestic and foreign) faceless forces that are believed to be augmenting the general’s mojo. Once the general is out of the way, all hurdles to the restoration of the Nov 2 judiciary and cleanup of the Constitution would automatically stand removed.

Realists or skeptics would obviously disagree with this rosy assessment. Their story would go like this: once upon a time there was an agreement inked with much fanfare in the pleasing hills of Bhurban, called the Murree Declaration, that promised to restore all deposed judges through an executive order within 30 days of the formation of the PPP-led federal government. But despite the unequivocal commitment, Mr Zardari reneged and justified his about-face by claiming that political commitments weren’t carved in stone and were thus not binding at all. Why, then, should anyone put any faith in the Islamabad Communiqué, which is also a political statement of intent and not words from any revered scripture? Dearth of credibility is the biggest problem of the Zardari-led PPP at the moment, but not the only one.

Skeptics would argue that the intentions expressed in the Islamabad Communiqué simply do not add up. First of all, the Constitution does not require a sitting president to seek a vote of confidence from his electoral college or the Parliament. Thus the contrived scheme requiring the provincial assemblies and the parliament to question the legitimacy of the president is merely a bid to gain more time and wriggle room and make our current state of listless uncertainty linger, without taking any concrete action to remove the general. After all, with the nation giving an overwhelming rebuff to the general and his cronies on Feb. 18, with his approval ratings almost in single digits and a majority of the country waiting to relish his ouster, is there need for additional cosmetic steps establishing his unpopularity?

Skeptics would further point to the Zardari-Naek determination to sabotage the lawyers’ movement as most recently manifested by the reappointment of eight judges of the Sindh High Court and contrast it with the benevolent intent enshrined in the Islamabad Communiqué to restore the Nov 2 judiciary in consonance with the Murree Declaration. That declaration sought to restore the judges within 30 days of the formation of the federal government. Instead Mr Zardari elected to spare no opportunity to chide the self-accepted countdown to restoration apart from embarrassing the PML-N that had entered into a coalition with the PPP on the one-point agenda of restoration.

Later the Zardari-led PPP also backtracked on the agreed upon modality of restoration – i.e., through an executive order – and insisted that a constitutional amendment was required to undo the general’s illegal removal of the judges. Acting upon its changed stance, Farooq Naek announced a day before the commencement of the talks with PML-N that led up to the Islamabad Communiqué that judges seeking restoration must swear a fresh oath under the Constitution. In line with this stated policy, the PPP-run law ministry proposed the reappointment of Sindh High Court judges, while also promising them the seniority that they enjoyed on Nov 3. The appointments have been made in accordance with the requirements of Articles 193 and 197 of the Constitution, and thus even if their notification has been withheld, the appointments cannot be reversed.

Yet, if the appointments are "fresh appointments," they amount to acknowledging the legality of the general’s actions of Nov 3, on the basis of which the PPP now seeks to impeach the president. Also, under no circumstances can fresh appointees be accorded seniority under the Constitution, which is calculated from the date of appointment (as any halfwit lawyer would know, and so should Mr Naek). In the event that the move aims to "restore" selected deposed judges to their previous seniority and judicial office, it undermines the PPP’s fervently defended claim that the deposed judges can only be restored through a constitutional amendment and not by virtue of an executive order. But now the communiqué contradicts the PPP’s existing policy and reiterates that all deposed judges would be restored to their Nov 2 mantle in accordance with the Murree Declaration once the general stands impeached. Are the skeptics to be faulted for their lack of faith?

And, lastly, there is the idealistic view of what was missing, not only in the immediate aftermath of Feb 18 but also on the eve of Aug 7: candour in the declaration of intent, the conviction to carry it out and the basic integrity of the argument being made. The Islamabad Communiqué need not have been a longwinded document that lacks clarity of purpose. It could simply have said that by ravaging the Constitution on Nov 3 the general committed a cardinal sin that caused irreparable loss to the country and this nation. That the elected representatives of the people of Pakistan have sworn an oath to preserve, protect and defend the Constitution of Pakistan, and consequently it is their solemn duty to hold the general accountable for molesting the fundamental law of the land.

Further, in honouring the trust reposed in them by the people of Pakistan, our elected representatives will impeach the general for his crimes against the Constitution and for his gross misconduct. Through the communiqué they should have sought the support and guidance of the people to strengthen their hand in defending the Constitution and completing the transformation of this country from rule of men to rule of law. And to the extent that they had agreed – for whatever reason – that restoration of the judges’ will follow the removal of the president, they should have explained that once the impeachment motion succeeds on the basis that the actions of Nov 3 were unconstitutional, the Parliament will be duty-bound to undo the general’s illegal actions, starting with the restoration of the judges.

Today, the people of Pakistan want to believe in the Islamabad Communiqué. But the PPP’s performance over the last four months has given them little reason to. The supporters of democracy in Pakistan--whether they are supporters of the PPP or the PML-N or any another democratic party--wish for the PPP-led coalition government to succeed. For in the success of our elected government lies the future of democracy in Pakistan. The coalition government has not lived up to public expectations so far. But it is still not too late to learn from the mistakes of the past few months and take corrective action without faltering.

John F Kennedy could have been speaking of Pakistan’s present state when he said: "The times are too grave, the challenge too urgent, and the stakes to high--to permit the customary passions of political debate. We are not here to curse the darkness, but to light the candle that can guide us through that darkness to a safe and sane future."



Email: sattar@post.harvard.edu