Politics Of Constitutionalism
Did the Murree-Bhurban declaration, and subsequent events, expose
the dangers of arranged marriages or did it expose the PPP as a treacherous
lover?
By Faisal Siddiqi
What is Asif Ali Zardari and the PPP up to in relation to the issue of the
restoration of the judges is the million dollar question? There are various
answers given by the anti-PPP and pro-restoration groups. Some argue that Asif Ali Zardari, Pervez Musharraf and the
Americans are part of a deal which involves the retention of Pervez Musharraf and as a
consequence, the non-restoration of the deposed judges. Others argue that,
irrespective of what happens to Musharraf in the
future, Zardari doesn't want to restore the judges at
all because he thinks that they will strike down the National Reconciliation
Ordinance (NRO) 2007, and deny him the benefits of his alleged 'corrupt'
practices. The common element in both these answers is that it reduces this
political problem to the personality of Asif Zardari and his personal problems.
Without denying the relevance of the leadership of Asif Ali Zardari in understanding
this political problem, I propose to argue in this article that the issue of
the restoration of the judges vis-a-vis the PPP and Asif Zardari is a political, and
not a personal, problem, and the actions of Asif Zardari and the PPP in relation to this issue needs to be
understood within the context of the PPP as a ruling political party and the
post Feb 18, 2008, emergent political process, and not in terms of the
personality, personal views and self-interest of Zardari.
Musharraf constructed a post-Nov 3, 2007, 'legal' framework
whose purpose was to legally secure his position as a constitutional president.
First, by installing his own superior judiciary.
Second, the Supreme Court under the PCO, headed by the Chief Justice, Abdul Hameed Dogar, under PCO, in the 'Tika Iqbal Muhammad Khan case'
validated his post-Nov 2, 2007, actions and orders. Third, through the
Constitution (Amendment and Second Amendment) Orders, 2007, constitutional
amendments were 'inserted' in the constitution to secure his presidency
[Article 44 was amended], to make it practically impossible to restore the
non-functional judges Article 270C was amended and to protect and indemnify his
post-Nov 2, 2007, actions and orders a new Article 270AAA was inserted.
The political strategy of Musharraf
was clear. He knew that a new legal game was about to begin in which the
constitution, judgments of the superior courts and the superior courts will be
key strategic tools. Therefore, like any good dictator, his political strategy
was to, in advance, manipulate and to rig all three of these strategic tools.
But he also knew that a new political player i.e. the elected representatives
of the people, are entering this new legal game. Therefore, as an incentive and
gift to his alleged new political partners i.e. PPP, the NRO was also given
protection through his aforementioned three strategic tools. The Supreme Court
under PCO in the 'Tika Iqbal
Muhammad Khan Case' upheld the enforceability of, and his constitution
amendment [new Article 270AAA] protected, NRO. It looked like a marriage made
in heaven.
But then came the romantic
love affair of the Murree-Bhurban declaration of
March 9, 2008. As examined in detail in one of my earlier articles, the Murree-Bhurban declaration recognised
that the restoration of the judges was a political, and not a legal, problem.
There were four foundations of the Murree-Bhurban declaration. First, it accepted that the
deposed judges [and not the judiciary] will be restored to their Nov 2, 2007,
position. In other words, it was silent about the PCO judiciary. Second, it recognised that there were no legal or constitutional
obstacles to the restoration of these judges because it refused to recognise the legality of the above-mentioned
constitutional amendments which included the constitutional protection of the
NRO, also made by Musharraf, the legality of the
judgment in the 'Tika Iqbal
Muhammad Khan Case' and the PCO judiciary as the sole judiciary.
In short, the PPP refused to recognise
the legality of the post-Nov 2, 2007, actions and orders of Musharraf.
Third, a political decision was made to take on a
political conflict with Musharraf. Fourth, in terms
of tactics, the methodology of a parliamentary resolution and the time frame of
30 days was to be adopted. To further shatter the
broken heart of Musharraf, on the first day of the
session of National Assembly, one of the senior members of the PPP made a
statement on the floor of the house that they don't recognise
the post-Nov 2, 2007, constitutional amendments made by Musharraf
(which included the NRO).
Did the Murree-Bhurban
declaration, and subsequent events, expose the dangers of arranged marriages or
did it expose the PPP as a treacherous lover? Or did it simply emphasise the fact that an understanding of the politics of
the PPP as a political party could not be reduced simply to the NRO, 2007.
But the judges were not restored through a
parliamentary resolution within 30 or even 60 days. Did this signify the end of
the romantic love affair of the Murree-Bhurban
declaration and the revival of the alleged arranged marriage with Pervez Musharraf? Sadly,
politics, like life, is hardly a boring and repetitive affair. Therefore,
another bomb shell in the form of the Constitution (Eighteenth Amendment) Bill,
2008 was dropped by the PPP.
In relation to Musharraf,
it contains the mother of all rejected marriage proposals, as it refuses to recognise the legality of the post-Nov 2, 2007 actions and
orders. This is because the Constitutional Amendment Bill, 2008 refuses to recognise the post-Nov 3, 2007, constitutional amendments
made by Musharraf, which amendments included a new
Article 270AAA that gave blanket protection, immunity and indemnity to the
post-Nov 2, 2007, actions and orders.
But wasn't PPP inflicting a mortal injury to itself
because the same new Article 270AAA also provided constitutional protection to
the NRO, 2007? Were these the actions of an immature political party? Or did it
simply again emphasise the fact that an understanding
of the politics of the PPP as a political party could not be simply reduced to
the NRO, 2007.
The Constitutional Amendment Bill does, of course,
have its own proposed new Article 270AAA which doesn't give protection to the
PCO and the Proclamation of Emergency, 2007 but tries to give protection to the
NRO, 2007. But that is only, if and when, this bill is passed by the
parliament.
Therefore, the Eighteenth Amendment Bill does imply
a continuity with the romantic love affair of the Murree-Bhurban Declaration because it refuses to recognise the legality of the post-Nov 2, 2007 actions and
orders of Musharraf. It affirms that the decision to
take on a political conflict with Musharraf is intact
and implies a declaration of war without initiating an imminent political
conflict.
This is the first time in
In relation to the issue of the judiciary and the
restoration of the non-functional judges, the PPP's bill contains a plethora of
constitutional amendments. The constitutional amendments propose to restore the
non-functional judges to the Nov 2, 2007 position and seniority in the proposed
new Article 270CC.
But this restoration of the judges is now
conditional on the following elements. First, it implicitly recognises
the legality of the current PCO judges and as a consequence, proposes to
control the non-functional judges through the greater numbers of the status
quo-oriented judges under the PCO.
Second, it proposes an intrusive executive presence
in the hiring of the superior judiciary [proposed new Articles 177A and 193A]
and monopolistic executive control of the firing of the superior judiciary
[proposed new Article 209].
Third, it creates a limited, ineffective and mere
mouth piece, fundamental rights jurisdiction of the Supreme Court [proposed
amendment in Article 184(3)].
Fourth, the present and future chief justices of
the superior courts are proposed to be controlled through restricted tenures
[proposed Articles 179 and 195].
Therefore, the Eighteenth Amendment Bill does imply
a continuity with the romantic love affair of the Murree-Bhurban
Declaration because it proposes to restore the non-functional judges to the Nov
2, 2007, position and seniority but this romantic love affair now is
conditional and a one-sided love affair.
One doesn't need to study constitutional law or
judicial history to understand the implications of the aforementioned
amendments. The PPP wants to constitutionally create an oxymoron superior
judiciary i.e. a subordinate superior judiciary or a judiciary independent of
everyone else except the executive. Zardari and PPP's
claim that they don't want power but rather want to change systems of power is
proved correct by this Eighteenth Amendment Bill because the aforementioned
amendment does want to change the structure of an independent judiciary, as
envisaged under the original 1973 constitution, to a dependent judiciary.
Why has the romantic love affair of the Murree-Bhurban Declaration converted into such a
conditional love affair or a proposed one-sided pre-nuptial agreement? Is the
PPP simply acting 'evil' when it comes to the judiciary?
Maybe, a rational political explanation of the PPP
to the Eighteenth Amendment is as follows. The bill is primarily based on the
PPP's reading of Pakistani judicial history. In the PPP's mutilated and
selective judicial memory, the judiciary, at best, is a useless bourgeois and
right wing institution, and, at worst, the judiciary is an institution through
which politicians are subdued and harassed and the political and democratic
process is disrupted and destroyed. In this collective unconscious of the PPP,
judicial dissent on March 9, 2007, and on Nov 3, 2007, are seen merely as
tactical actions and this judicial dissent does not imply a strategic change in
this allegedly anti-democratic institution.
Therefore, no independent judiciary can be
destroyed by the Eighteenth Amendment Bill because their allegedly never was,
nor is, an independent judiciary. Secondly, after the Murree-Bhurban
Declaration, a new relationship has intervened in the life of the PPP i.e. the
reality of power politics between institutions and the problem of governance.
The PPP as a ruling political party recognises the
potential constitutional structural conflict between a consolidating executive
and legislature and an emerging independent judiciary (remember the conflicts
between Benazir Bhutto and Sajjad
Ali Shah and between Nawaz Sharif
and Sajjad Ali Shah).
Therefore, why not just destroy this independent
power institution i.e. judiciary, and consequently, avoid any structural
conflicts. Additionally, the restoration of the deposed judges will also give
rise to the imminent constitutional structural conflict with Musharraf and, maybe, also with the PCO judges, the
political fallout of which may allegedly include the dismantling of the entire
democratic system. Supposedly, restoration of the judges through a
constitutional amendment will prevent both a conflict with Musharraf
and the PCO judges because a constitutional amendment can neither be challenged
by Musharraf nor by the Supreme Court.
How should one judge the above mentioned political
explanation? Should it be dismissed as a bad horror novel or should it be seen
as a serious political explanation?
Regardless of the moral and constitutional worth of
the PPP's proposed bill, I offer only the following political observations.
First, after March 9, 2007, and November 3, 2007, the genie and 'disease' of
the idea of an independent judiciary which has inflicted and infested the
historicity and mindset of the judges, lawyers and the common man, cannot be
reversed. The 'disease' of independence is here to stay. Therefore, the
proposed bill is an attempt to reverse history. Historical events and realities
need to be accepted (even if undesirable) and not fought against.
Second no constitutional modern state has been able
to avoid structural constitutional conflicts with the judiciary because they
arise out of inbuilt structural constitutional contradictions. The judicial
history of modern states tell us that constitutional conflicts with the
judiciary can only be managed until these conflicts are resolved historically
by developing consistent constitutional relationships between the various
organs of the state. The PPP's proposed bill cannot bypass history.
Third, the PPP does not have a two thirds majority
needed to pass these amendments. Opposition members of parliament are unlikely
to support amendments which will help the executive control the judiciary because
they recognise the importance of independent judicial
power against a repressive Pakistani state.
Fourth, a constitutional state with fundamental
rights, without an independent judiciary to enforce those fundamental rights,
is like having a democracy without political parties. Why not just get rid of
the pretence that we are a constitutional state with fundamental rights.
Fifth, will the PPP want such an
executive-dominated dependent judiciary when it is in opposition and appealing
for either bail in a criminal case or contesting a false criminal charge?
Sixth, isn't an imminent structural conflict with Pervez Musharraf unavoidable
because he is like an irritant illegal trespasser always looking to dislodge
the rightful repository of public power. Why not fight
this imminent political conflict with a recently tested anti-Musharraf judiciary on your side?.
Seventh, if there is an inevitable and unavoidable
choice between a political conflict with Nawaz Sharif because of the non-restoration of the deposed judges
and between a political conflict with Pervez Musharraf or the PCO judges, shouldn't the PPP avoid the
former, rather the latter, conflict. Surely, the guarantee to any kind of
political stability in
Regardless of the above intellectual diatribe, Farooq Naek, the intellectual
brain behind these amendments, our legal czar and an experienced
parliamentarian, must know that the biggest Constitutional Amendment Act passed
in the history of our Pakistani parliament was the Constitution (Eighth
Amendment) Act, 1985, which contained only 19 amendments. The biggest Amendment
Act passed by Zulfiqar Ali Bhutto was the
Constitution (Fifth Amendment) Act, 1976, which contained only 18 amendments
(By the way, Bhutto had a two thirds majority in parliament).
The Constitution (Eighteenth Amendment) Bill, 2008,
contains 79 amendments. Is Mr Naek
trying to create history? May be, world constitutional history?. Surely, if he realistically wanted to pass these
amendments, a more intelligent strategy would have been to have many
constitutional bills with fewer amendments to be passed in a piecemeal manner.
For example, like the Constitution (Thirteenth Amendment) Act, 1997, passed by
the Nawaz Sharif
government, contained only four amendments, which reversed and corrected the
political and power imbalances between the prime minister and president. But
without having access to, or insight into, the political decision making of the
PPP, one can only engage in some kind of analytical speculation.
The Constitution (Eighteen Amendment) Bill, 2008,
really looks like a beautiful shell. Beautiful from the outside but empty
inside. At worst, it is a fantasy and, at best, a maximalist
position on which the PPP is willing to compromise e.g. it may be willing to go
back to the tactical solution of the good old romantic days of the Murree-Bhurban declaration (especially now after the
passage of the Finance Bill, 2008, which accepts the physical presence of the
Supreme Court judges under the PCO) and then later on also try to pass, bits
and pieces, of the judicially-oriented amendments of the Constitution (Eighteen
Amendment) Bill, 2008.
Or may be, it is merely a
political strategy to delay a solution to these problems so that the PPP can
consolidate its power before taking on these difficult political problems.
Sadly, the issue of the restoration of the judges is a major cause of
persistent instability in
The romantic journey from Murree
to the constitutional package has shown us that irrespective of the fights within
our democratic constitutional family (i.e. between the PPP and PML(N) and the judiciary), there is at least consensus among
all its members about the source of our common political and constitutional
woes -- the system of military dictatorship in
Courtesy: The News