The Pakistani Spectator
A Candid Blog
A Candid Blog
Politics in Post-Long March Phase: Redefining the Rules of Game
Mar 24th, 2009 • Category: Lead Story • 18 Comments •
By the evening of 15 March 2009, the Government had realized that it had lost the battle and had no option other than to concede the demand of the lawyers, the civil society and the opposition parties that the judiciary of 2 November 2007, with Iftikhar Mohammad Chaudhry as the Chief Justice, be restored through a notification.
The tactical mistake made by President Zardari and his close associates of imposing the Governor’s rule in Punjab after the Supreme Court decision on 25 February, disqualifying the Sharif brothers from holding public offices, led the PML (N) throw its full weight behind the lawyers’ call for the long march.
The PML (N)’s entry in the arena turned the tables and revitalized the lawyers’ movement. The PPP government panicked and made all the wrong decisions that ensured, rather sealed the success of the agitation, turned into Mass Movement.
The media played a decisive role in informing the local and global audience, why the long march had occasioned and the stance of the Bar, Civil Society and political parties, sans few.
It also exposed the government’s failings, indecisiveness, knee jerk responses and complete lack of any articulated Political defense of Government’s point of view (if there was one) and the reasons for not conceding the restoration of pre-3/11 judiciary that PPP supported Benazir Bhutto (Shaheed) struggled and gave her life for.
The effectiveness of Media’s role was there for all to see, when the Geo News was gagged by the Government (?) in surreptitious and highly questionable manner, which no government functionary came forward to own or defend. Sherry Rehman Resigned, instead. A Vibrant media made qualitative and quantifiable contribution in mobilizing the masses for a popularly just cause.
As a huge procession led by Nawaz Sharif proceeded towards the federal capital on the evening of 15 March, the government was unnerved and had to arrive at a settlement with the leaders of the lawyers and the PML (N) brokered, or shall we say, prodded by the Army Chief, amidst reports of discontent in Allies and within PPP.
In the morning of 16 March Prime Minister Yousuf Raza Gilani in his address to the nation announced the government’s decision to restore Chief Justice Iftikhar Mohammad Chaudhry and a number of other judges who had been sacked by President Pervez Musharraf without constitutional authority. The lawyers and the opposition parties called off their long march and the country was spared of what could have been a tragic day. The people were jubilant on their victory, looking forward to a new beginning.
Apparently the politico-constitutional crisis has ended and the nascent democratic order has returned from the precipice. But the situation is so complex that its future contours are not clear. For a stable, progressive and democratic Pakistan, the political forces, in particular the PPP and the PML (N) need to redefine the rules of the game in a manner that promotes harmony and cooperation between the actors.
Unfortunately the ten-day crisis that shook the country once again proved that the Pakistani politicians are incapable of managing the affairs on their own. Although the Army Chief General Ashfaq Pervaiz Kayani had propounded the doctrine of army’s neutrality and as a professional soldier wanted to maintain distance from politics, the situation reached a point where he had to intervene and facilitate a settlement between the warring sides.
This was in a way rebirth or resurrection of the informal ‘troika system’, comprising the President, the Prime Minister and the Chief of the Army Staff, that had operated from November 1988 to mid 1997, when Nawaz Sharif under the spell of heavy mandate began his quest for capturing all power.
After the Swat truce, the lawyers’ long march has established another precedent that in Pakistan it is the threat or use of force, and not peaceful persuasion or rational pleading of one’s case, that pays and brings the dividend.
During the long march, Nawaz Sharif called upon the bureaucrats and the personnel of the law enforcement agencies not to carry out the ‘illegal’ orders of the government. In a way this was an incitement to rebellion against the constitutionally established authority. Such acts only lead to the erosion of the institutions of state and undermine the government’s ability to maintain law and order.
In what happened during the fateful ten days, President Zardari was the prime loser and found it extremely difficult to defend his decisions. For the first time, something akin to real cracks appeared in the ranks of the PPP when Raza Rabani and Sherry Rehman resigned in protest. The whole episode enhanced the prestige of Prime Minister Yousuf Raza Gilani as a sober and mature leader in who even the opposition reposed confidence, to steer the country out of the crisis.
Some elements, in particular the MQM perceived and depicted the long march as a revolt of Punjab against the Centre or described it as something like Punjab versus the rest. The massacre of 12 May 2007 is haunting the MQM and it is understandable that the MQM is upset with the restoration of the pre-PCO judiciary. The ANP and the JUI, (F) never supported the imposition of Governor’s rule and former remained neutral on the issue of restoration of judges. Their whole focus was on saving the system by pressing for a negotiated settlement.
According to the notification issued by the government, Chief Justice Iftikhar Mohammad Chaudhry is to assume office on 22 March 2009. Other reinstated Judges have also decided to retake the charge of their offices on the same day. Since these judges have been reinstated through an executive, they are not required to take a fresh oath.
The reinstatement of the Chief Justice and other judges through an executive order has raised questions about the constitutional position prevailing in the country in the aftermath of the Proclamation of Emergency and promulgation of the Provisional Constitution Order of 3 November 2007.
In order to remove ambiguity and anomalies, including those concerning the composition of the higher judiciary, there is need for a constitutional amendment that may validate necessary and normal transactions conducted from 3 November 2007 onwards.
The reinstatement of the judges through an executive order also implies that the Proclamation of Emergency and the Provisional Constitution Order of 3 November 2007 were unconstitutional and by promulgating them General Pervez Musharraf had committed an act of high treason under the article 6 of the Constitution.
The breach of Constitution by General Pervez Musharraf on 12 October 1999 had sufficient grounds to be validated under the law of state necessity but the violation of the Constitution on 3 November 2007 was visibly a mala fide act which should not be condoned lightly. To indemnify his act of breach of Constitution in the name of national reconciliation would be travesty of justice and fair play, and injurious to national interests in the long term.
In framing the constitutional amendment bill, the parliament should address the issues related to judicial reforms, provincial autonomy and powers of the president, including article 58 (2) b, dispassionately, and with full understanding of the ground realities.
With due deference to point of view of the contrary, in the humble opinion of this scribe, instead of being distracted by the existing political environmental hazard, it would be advisable to retain article 58 (2) b as a check on the Prime Minister, while transfer other powers of the President which are inconsistent with the traditions of parliamentary democracy to the Prime Minister.
The President should also be barred from holding any position in the party. The President should serve as a check on the Prime Minister and the judiciary as a check on the misuse of article 58 (2) b by the President.
It is important that the state functionaries develop conventions to ensure that the organs of the government do not encroach upon each others domain and remain within the ambit of the Constitution. Throughout Pakistan’s political history it has been observed that the crisis situations usually emerge when the state functionaries take whimsical decisions or over-step their respective constitutional domains.
Before his removal on 9 March 2007, Chief Justice Iftikhar Mohammad Chaudhry had shown a tendency for interfering in the domain of the executive. At times his attitude was, t times, very insulting towards the bureaucrats, and state functionaries.
In future, it is advisable that one remains more circumspect in taking suo motto actions. One needs to realize that a dysfunctional state like Pakistan cannot be reformed overnight.
Chief Justice Iftikhar Mohammad Chaudhry’s endeavor to recover the ‘disappeared’ people was generally appreciated. In extraordinary circumstances, the state agencies resort to high-handed methods, including abduction of suspected people for questioning or making them non-functional. It seems that the charges in this regard are not entirely baseless. They too need to be more judicious in their operations.
The situation in Punjab is still volatile. The imposition of the governor’s rule in Punjab without justification has created the impression that the PPP wants to establish its government in the province at all cost.
The mandate in Punjab is divided between three major parties: the PPP, the PML (N) and the PML (Q). The formation of a coalition by any two parties is therefore necessary if horse trading or politics of forward blocs is to be avoided. In the general elections of February 2008, the PPP had secured more seats in Punjab than it would have otherwise, due to the sympathy wave generated by the assassination of Benazir Bhutto. The PML (Q) was recipient of favor from the establishment and won more than its fair share. The PML (N) had joined the fray belatedly and could not demonstrate and realize its full potential.
The recent long march has greatly boosted the popularity of the PML (N) in Punjab. If the PPP and the PML (Q) join hands to form a coalition government in the province, the people of Punjab would resent and think that the PML (N) has been robbed of its mandate. The PML (N) would build up popular pressure for the dissolution of the Punjab Assembly and fresh elections.
One way to avert this situation is to obtain a favorable decision for the Sharif brothers in the review petition against their disqualification by the Supreme Court. If the incubent judges seem to be reluctant to change their verdict, a larger bench may be constituted to hear the review petition. After the bar on the Sharif brothers is removed, Shahbaz Sharif may be restored as the Chief Minister at the head of the coalition comprising the PML (N) and the PPP.
The restoration of Shahbaz Sharif without fresh oath would automatically address the issue of bar on becoming the Chief Minister a third time. The blanket immunity given to the PPP leadership under the NRO has no moral justification. However, if this nasty piece of legislation is scrapped through a judicial order, President Zardari is likely to play the Sindh card. (It is interesting that the PPP government has declared public holiday on the death anniversary of the father of present Pir Pagara. Is this an attempt to demonstrate Unity of Sindh (?)
The PML (N) may not become a party to extend any constitutional cover to the NRO. The NRO has already been challenged in the court and the matter is pending adjudication, a Sword of Damocles hanging over President Zardari. It is akin to question of legitimacy that gnawed at Mr. Pervez Musharraf’s Regime.
The internecine warfare has weakened the country and hampered its economic growth. With Pakistan’s western provinces and FATA in turmoil, Pakistan cannot afford a destabilized Punjab or Centre-Punjab conflict. The stake-holders need to understand that the army cannot remain on the sidelines if they fail to provide political stability to the country.
About the author: Amicus is the pseudonym of Advocate Mohammed Yousuf, lawyer based in Karachi.
By the evening of 15 March 2009, the Government had realized that it had lost the battle and had no option other than to concede the demand of the lawyers, the civil society and the opposition parties that the judiciary of 2 November 2007, with Iftikhar Mohammad Chaudhry as the Chief Justice, be restored through a notification.
The tactical mistake made by President Zardari and his close associates of imposing the Governor’s rule in Punjab after the Supreme Court decision on 25 February, disqualifying the Sharif brothers from holding public offices, led the PML (N) throw its full weight behind the lawyers’ call for the long march.
The PML (N)’s entry in the arena turned the tables and revitalized the lawyers’ movement. The PPP government panicked and made all the wrong decisions that ensured, rather sealed the success of the agitation, turned into Mass Movement.
The media played a decisive role in informing the local and global audience, why the long march had occasioned and the stance of the Bar, Civil Society and political parties, sans few.
It also exposed the government’s failings, indecisiveness, knee jerk responses and complete lack of any articulated Political defense of Government’s point of view (if there was one) and the reasons for not conceding the restoration of pre-3/11 judiciary that PPP supported Benazir Bhutto (Shaheed) struggled and gave her life for.
The effectiveness of Media’s role was there for all to see, when the Geo News was gagged by the Government (?) in surreptitious and highly questionable manner, which no government functionary came forward to own or defend. Sherry Rehman Resigned, instead. A Vibrant media made qualitative and quantifiable contribution in mobilizing the masses for a popularly just cause.
As a huge procession led by Nawaz Sharif proceeded towards the federal capital on the evening of 15 March, the government was unnerved and had to arrive at a settlement with the leaders of the lawyers and the PML (N) brokered, or shall we say, prodded by the Army Chief, amidst reports of discontent in Allies and within PPP.
In the morning of 16 March Prime Minister Yousuf Raza Gilani in his address to the nation announced the government’s decision to restore Chief Justice Iftikhar Mohammad Chaudhry and a number of other judges who had been sacked by President Pervez Musharraf without constitutional authority. The lawyers and the opposition parties called off their long march and the country was spared of what could have been a tragic day. The people were jubilant on their victory, looking forward to a new beginning.
Apparently the politico-constitutional crisis has ended and the nascent democratic order has returned from the precipice. But the situation is so complex that its future contours are not clear. For a stable, progressive and democratic Pakistan, the political forces, in particular the PPP and the PML (N) need to redefine the rules of the game in a manner that promotes harmony and cooperation between the actors.
Unfortunately the ten-day crisis that shook the country once again proved that the Pakistani politicians are incapable of managing the affairs on their own. Although the Army Chief General Ashfaq Pervaiz Kayani had propounded the doctrine of army’s neutrality and as a professional soldier wanted to maintain distance from politics, the situation reached a point where he had to intervene and facilitate a settlement between the warring sides.
This was in a way rebirth or resurrection of the informal ‘troika system’, comprising the President, the Prime Minister and the Chief of the Army Staff, that had operated from November 1988 to mid 1997, when Nawaz Sharif under the spell of heavy mandate began his quest for capturing all power.
After the Swat truce, the lawyers’ long march has established another precedent that in Pakistan it is the threat or use of force, and not peaceful persuasion or rational pleading of one’s case, that pays and brings the dividend.
During the long march, Nawaz Sharif called upon the bureaucrats and the personnel of the law enforcement agencies not to carry out the ‘illegal’ orders of the government. In a way this was an incitement to rebellion against the constitutionally established authority. Such acts only lead to the erosion of the institutions of state and undermine the government’s ability to maintain law and order.
In what happened during the fateful ten days, President Zardari was the prime loser and found it extremely difficult to defend his decisions. For the first time, something akin to real cracks appeared in the ranks of the PPP when Raza Rabani and Sherry Rehman resigned in protest. The whole episode enhanced the prestige of Prime Minister Yousuf Raza Gilani as a sober and mature leader in who even the opposition reposed confidence, to steer the country out of the crisis.
Some elements, in particular the MQM perceived and depicted the long march as a revolt of Punjab against the Centre or described it as something like Punjab versus the rest. The massacre of 12 May 2007 is haunting the MQM and it is understandable that the MQM is upset with the restoration of the pre-PCO judiciary. The ANP and the JUI, (F) never supported the imposition of Governor’s rule and former remained neutral on the issue of restoration of judges. Their whole focus was on saving the system by pressing for a negotiated settlement.
According to the notification issued by the government, Chief Justice Iftikhar Mohammad Chaudhry is to assume office on 22 March 2009. Other reinstated Judges have also decided to retake the charge of their offices on the same day. Since these judges have been reinstated through an executive, they are not required to take a fresh oath.
The reinstatement of the Chief Justice and other judges through an executive order has raised questions about the constitutional position prevailing in the country in the aftermath of the Proclamation of Emergency and promulgation of the Provisional Constitution Order of 3 November 2007.
In order to remove ambiguity and anomalies, including those concerning the composition of the higher judiciary, there is need for a constitutional amendment that may validate necessary and normal transactions conducted from 3 November 2007 onwards.
The reinstatement of the judges through an executive order also implies that the Proclamation of Emergency and the Provisional Constitution Order of 3 November 2007 were unconstitutional and by promulgating them General Pervez Musharraf had committed an act of high treason under the article 6 of the Constitution.
The breach of Constitution by General Pervez Musharraf on 12 October 1999 had sufficient grounds to be validated under the law of state necessity but the violation of the Constitution on 3 November 2007 was visibly a mala fide act which should not be condoned lightly. To indemnify his act of breach of Constitution in the name of national reconciliation would be travesty of justice and fair play, and injurious to national interests in the long term.
In framing the constitutional amendment bill, the parliament should address the issues related to judicial reforms, provincial autonomy and powers of the president, including article 58 (2) b, dispassionately, and with full understanding of the ground realities.
With due deference to point of view of the contrary, in the humble opinion of this scribe, instead of being distracted by the existing political environmental hazard, it would be advisable to retain article 58 (2) b as a check on the Prime Minister, while transfer other powers of the President which are inconsistent with the traditions of parliamentary democracy to the Prime Minister.
The President should also be barred from holding any position in the party. The President should serve as a check on the Prime Minister and the judiciary as a check on the misuse of article 58 (2) b by the President.
It is important that the state functionaries develop conventions to ensure that the organs of the government do not encroach upon each others domain and remain within the ambit of the Constitution. Throughout Pakistan’s political history it has been observed that the crisis situations usually emerge when the state functionaries take whimsical decisions or over-step their respective constitutional domains.
Before his removal on 9 March 2007, Chief Justice Iftikhar Mohammad Chaudhry had shown a tendency for interfering in the domain of the executive. At times his attitude was, t times, very insulting towards the bureaucrats, and state functionaries.
In future, it is advisable that one remains more circumspect in taking suo motto actions. One needs to realize that a dysfunctional state like Pakistan cannot be reformed overnight.
Chief Justice Iftikhar Mohammad Chaudhry’s endeavor to recover the ‘disappeared’ people was generally appreciated. In extraordinary circumstances, the state agencies resort to high-handed methods, including abduction of suspected people for questioning or making them non-functional. It seems that the charges in this regard are not entirely baseless. They too need to be more judicious in their operations.
The situation in Punjab is still volatile. The imposition of the governor’s rule in Punjab without justification has created the impression that the PPP wants to establish its government in the province at all cost.
The mandate in Punjab is divided between three major parties: the PPP, the PML (N) and the PML (Q). The formation of a coalition by any two parties is therefore necessary if horse trading or politics of forward blocs is to be avoided. In the general elections of February 2008, the PPP had secured more seats in Punjab than it would have otherwise, due to the sympathy wave generated by the assassination of Benazir Bhutto. The PML (Q) was recipient of favor from the establishment and won more than its fair share. The PML (N) had joined the fray belatedly and could not demonstrate and realize its full potential.
The recent long march has greatly boosted the popularity of the PML (N) in Punjab. If the PPP and the PML (Q) join hands to form a coalition government in the province, the people of Punjab would resent and think that the PML (N) has been robbed of its mandate. The PML (N) would build up popular pressure for the dissolution of the Punjab Assembly and fresh elections.
One way to avert this situation is to obtain a favorable decision for the Sharif brothers in the review petition against their disqualification by the Supreme Court. If the incubent judges seem to be reluctant to change their verdict, a larger bench may be constituted to hear the review petition. After the bar on the Sharif brothers is removed, Shahbaz Sharif may be restored as the Chief Minister at the head of the coalition comprising the PML (N) and the PPP.
The restoration of Shahbaz Sharif without fresh oath would automatically address the issue of bar on becoming the Chief Minister a third time. The blanket immunity given to the PPP leadership under the NRO has no moral justification. However, if this nasty piece of legislation is scrapped through a judicial order, President Zardari is likely to play the Sindh card. (It is interesting that the PPP government has declared public holiday on the death anniversary of the father of present Pir Pagara. Is this an attempt to demonstrate Unity of Sindh (?)
The PML (N) may not become a party to extend any constitutional cover to the NRO. The NRO has already been challenged in the court and the matter is pending adjudication, a Sword of Damocles hanging over President Zardari. It is akin to question of legitimacy that gnawed at Mr. Pervez Musharraf’s Regime.
The internecine warfare has weakened the country and hampered its economic growth. With Pakistan’s western provinces and FATA in turmoil, Pakistan cannot afford a destabilized Punjab or Centre-Punjab conflict. The stake-holders need to understand that the army cannot remain on the sidelines if they fail to provide political stability to the country.
About the author: Amicus is the pseudonym of Advocate Mohammed Yousuf, lawyer based in Karachi.
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