Midnight drama

The Pakistan People's Party government gets an opportunity to assert itself, thanks to a rumour in the media.

in Islamabad

FORCED into a 24x7 existence in defensive mode, the beleaguered federal government led by the Pakistan People's Party (PPP) believes the nation turned an important, humbling, introspective corner for the better over the week beginning October 14. Maybe it is die-hard optimism for the PPP to think so in a country where trysts with democracy have always been short-lived, but the government has its biggest critics in the media to thank for the breather.

Had a television channel not put out a story on October 14 alleging that the government was planning to withdraw the March 16, 2009, notification to restore the Chief Justice of Pakistan (CJP) and the entire superior judiciary, at the Supreme Court and in the High Courts, the current dispensation may not have got this chance to somewhat assert itself.

Given the credibility deficit that the government suffers from and its perceived uneasy relationship with the apex court, other television networks lapped it up unquestioningly and it generated enough alarm for the CJP, Iftikhar Muhammad Chaudhry, to convene a late night meeting of all the Supreme Court judges. At this meeting, it was decided that the 17-member Bench would look into the reports of a move to remove the higher judiciary. The hearing was posted for the following morning and notice was issued to the Attorney General past midnight by which time Prime Minister Syed Yusuf Raza Gilani had put out a statement describing the reports as baseless.

The statement issued by the Prime Minister's Office said: Certain elements are trying to create bad taste among the institutions but these conspiracies will fail. We respect judiciary. The government will take every possible step for strengthening of institutions. PPP leadership has sacrificed their lives for the independence of judiciary.

That the news reports ought to be denied at the highest level was a considered decision of the government, federal Law Minister Babar Awan revealed a few hours later. The government's stance was whether rumours should have been given more credence than the Prime Minister's words. And it refused to budge from that position even in the face of a directive from the Bench to furnish a written assurance that the government would not withdraw the executive order of March 16, 2009.

The night before the Attorney General was to return to court with the written assurance, Gilani addressed the nation and said: If the Prime Minister restores the judges verbally and it is accepted as such, similarly when he contradicts a news item, the sanctity of his position demands that it should be accepted at all fora. If a rumour and false news is given preference over the statement of the Prime Minister, it would tantamount to an insult to that august office.

Evidently unwilling to precipitate matters and with no evidence forthcoming on the veracity of the news reports, the court took a step back, stating that since the issue of reinstatement of judges was a settled matter as per its own judgment of July 31, 2009, in Sindh High Court Bar Association vs Federation of Pakistan, it is up to the concerned authorities/functionaries to submit the statement or not.

The court also accepted the government's contention that more time was needed to investigate the genesis of the news reports and adjourned the case until the completion of the inquiry. No timeline was set for the government to complete the inquiry, and the court has also left it open as to whether the matter would be pursued further.

In hindsight, questions are being asked about the court's reaction to unsubstantiated news reports. While the higher judiciary probably had no way to establish the credibility of the news reports and acted in self-defence, even bitter critics of the government concede that it would have been suicidal for the ruling dispensation even to contemplate such a move. How could a government so pushed to the wall and with so little credibility have ever survived the removal of the higher judiciary, especially in a country where the previous military regime had been removed by a popular movement on the very same issue?

Factually also, the withdrawal of the March 16, 2009, executive order would have affected only four judges from the 17-member Bench and they could have been easily restored by the court in such an eventuality. This surely was known to the Supreme Court judges. Then why the panic reaction, is the question that is being asked.

One assumption is that there could be a linkage with the Supreme Court Bar Association (SCBA) elections on October 27 in which the human rights activist Asma Jehangir is contesting with the aim to give the bar an independent voice. Her contention is that lawyers should not be subservient to judges and any such development would erode the integrity and honesty of the judicial system.

The Friday Times, in its editorial, hinted at this linkage when it said the midnight drama of October 14 had given rise to conspiracy theories that the judges' dramatic behaviour and desperate actions have critically served to bind the judges and lawyers together on the eve of two significant events: a judgment on the fate of the 18th Amendment on October 21 in which demonstration of unanimity rather than dissent will be important, and an election to the SCBA next week in which pro-SC versus independent lawyers groups are pitted.

Asma Jehangir's camp followers see a possible linkage. SCBA elections have acquired great significance because of the conflict between the government and the judiciary. Some judges are perceived to be acting to destabilise the government, attain sympathy and media attention, and make an impact on SCBA voters to ensure that a pro-Chief Justice candidate gets the upper hand and damage Asma's campaign by somehow putting her in a difficult situation where she takes a stand which is seen to be against the judiciary which some see as under attack by the executive', explains lawyer Asad Jamal.

But, he adds, a more plausible explanation is the 18th Amendment case specifically because of the powers taken away from the Chief Justice and the judiciary under 175A for the appointment of judges. The judicial institution is historically insecure. And, in the instant case the government and some important offices are under serious threat from the judiciary. By enacting the midnight drama the judges perhaps wanted to spread the impression that they are vulnerable to the executive's ploys so that they could hand out the kind of decision they did on October 21 in the 18th Amendment case.

Though over a score amendments have been challenged in the slew of petitions that have been clubbed together, most contest the insertion of Article 175A to ensure parliamentary oversight over the appointment of superior court judges. Avoiding the collision course as anticipated by the media, the court referred the amendment back to Parliament for reconsideration instead of striking it down.

Some lawyers have questioned the court's decision also to prescribe the manner in which Article 175A should be put in effect while Parliament reconsiders it. The short order does not make it clear how the court is empowered to prescribe the manner. Article 175A sought to make the appointments in a more participatory, democratic and transparent manner which the prescribed mode seeks to undo. Through the prescribed manner, the Chief Justice's office is being granted undue power to regulate' the meetings and affairs' of the Judicial Commission. In-camera proceedings will make the process less transparent and more vulnerable to behind-the-door dealings, says Jamal.

Though other lawyers such as Babar Sattar see the Supreme Court's decision to refer the amendment back to Parliament as an overture, there is a fear that burdening the collapsing legislature with the huge task at this juncture is a calculated move. Indeed, the spirit of reconciliation that was in full flow at the time of the passage of the 18th Amendment in April has given way to feverish politicking amid endless talk of regime change.

Sattar, however, maintains in his column in The News that if Parliament responds to the overture of the judiciary with poise and thoughtful action, the court may find no need to endorse any basic structure theory as a permanent vehicle to review and revise constitutional amendments or view the Parliamentary Committee [for Constitutional Reforms] as a partisan interference with judicial appointments.

Basic structure theory

In the wake of the short order in the 18th Amendment case, concern is being voiced about Pakistan going the Indian way and adopting the doctrine of judicial review. Time and again, the order quotes petitioners citing the basic structure theory. By prescribing the manner in which appointments should be made within the ambit of Article 175A, there is a view that the court may have, in effect, sent across the message that it has the power to strike down a constitutional amendment if the situation so warrants.

While the government has secured some elbow room in these two cases, its legal battles are far from over as a decision on implementation of the court order nullifying the National Reconciliation Ordinance which provides amnesty to a number of politicians and bureaucrats, including President Asif Ali Zardari is yet to be taken.

Dismayed by the selective call for accountability from the political class, particularly the PPP, and none of the other institutions, the government has decided to explore all legal and constitutional avenues and lacunae it can find in this case specifically the diktat to reopen graft cases in Swiss courts against Zardari. This stance will undoubtedly provide more manna for speculation about a clash of institutions. In fact, such speculations have become a staple diet, at least a weekly fare. Every week, one such speculation assumes a life of its own, only to fizzle out or be punctured.

Despite all the bad press and little help from advocates of democracy who seem more blinded by their aversion towards Zardari's infamous past than the crying need to nurture democracy with all its faults the PPP is refusing to cave in, at least outwardly. For one, they see most of the crises as manufactured personal wishes masquerading as public' opinion of those still suffering from military rule's hangover and who don't want to acknowledge the reality that this time around, democracy is here to stay, no matter how unsatisfactorily it performs.

Working on the premise that it will require tremendous patience, sacrifice, collective action and consensus building before people begin appreciating the values of democracy, PPP managers have come to accept that the mainstream narrative will be dominated by arrogant, authoritarian, military-spoilt anti-democratic attitudes driven by vested interests which don't let people accept and own democracy fully, and learn to live and work in it.

The week in question, according to government managers, has been more humbling for the judiciary and the media, rather than the government. The government can't be more humbled or pushed to the wall than it already is. Rather optimistically, it believes that there is a sullen realisation and acceptance now that derailing the government is not an option and the PPP is preparing for all players to enter into a new round of jostling, this time for their power proportions in a democratic set-up without necessarily rocking the boat.