JURIST Guest Columnist Moeen Cheema, professor of Law & Policy at the Lahore University of Management Sciences in Lahore, Pakistan, says that in the wake of the election of Pakistan People's Party co-chairman Asif Ali Zardari as the President of Pakistan, the country's vaunted lawyer's movement may be dying a slow death without realizing its goal of restoring all the judges dismissed by former President Pervez Musharraf after the November 2006 proclamation of emergency...
Traitors to the Cause?
The proverbial stab in the heart, however, has come at the hands of several of those judges whose restoration has been a key demand of the lawyers' movement. In pursuit of an unadulterated principle of rejection of all actions undertaken by an unconstitutional military regime the lawyers' movement, or what was left of it after the departure of the pro-PPP lawyers, has stuck to the demand that the judiciary be restored to its pre-Emergency stature and composition. This would entail the reinstatement of all the dismissed judges as well as the removal of all thosee new appointees who took oath under the Provisional Constitution Order (PCO).
The PPP-led government has instead favored a compromise dictated by the backers of General (Retd.) Musharraf, who appear to have secured his resignation on the terms that his 'extra-constitutional' actions shall be indemnified. As a result, the government has proposed the re-appointment of judges removed during the Emergency, if they subject themselves to the administration of a fresh oath. At the same time, the government has proclaimed that the judges who accept reappointment on these terms shall have their seniority restored.
This business of fresh oaths and restored seniorities is a messy affair, at least as far as strict legal logic is concerned. If new oaths are administered then these judges are being reappointed, meaning thereby that they are junior to those judges who earlier took oaths under the PCO promulgated during the Emergency period. Granting them seniority over the PCO judges thus defies reasoning. It must also be appreciated that by accepting a fresh oath these judges are conceding that they were rightfully (if not rightly) dismissed in the first place. Hence, their acceptance of this oath is a betrayal for those who admired their stance in refusing to take an oath under the PCO late last year and who have protested for their reinstatement all these months.
Most importantly, the government's plan appears likely to dissuade the most unwanted of the judges, especially the CJ, from accepting reappointment on such humiliating terms. This will enable the government to argue that it offered 'reinstatement' (read reappointment) to all judges. In reality, it is making an offer that they cannot accept.
The recent refusal of the PCO judges incumbent in the Supreme Court to accord seniority to the reappointed judges brings more dismay to the persistent adherents of the lawyers' movement: such wrangling over the privileges of office is likely to further lower the esteem of the judiciary. Nonetheless, the ignominy of the judiciary, of the PCO ilk or of the re-inducted kind, may at the same time bring home to everyone the need for an independent, impartial and dignified judicial branch.
Political or Legal Accountability?
While the advisors of General (Retd.) Musharraf had predicted such an outcome when proposing the imposition of the state of emergency last November, such a successful dismantling of a movement with populist tendencies could never have been achieved under a military-backed regime. Democratic forces have yet again achieved an anti-democratization victory which the military rulers of this country have only wished for but never attained.
Behind the near-nauseating repetition of 'elected' pedigrees of government personalities there exists a deep democratic deficit which the recent elections, electioneering and 'governmenteering' have managed to reduce only at the margins. Most disturbingly, the promises that propelled the two major political parties to their electoral triumphs have so quickly been trashed, especially by the PPP whose ministers' public statements on the issue of the restoration of the judiciary cannot be differentiated from those of the ministers in the last period of General Musharraf's rule.
The betrayal of the manifestos is not confined to the issue of the judiciary alone. Just as in 1989, we appear to have entered another era of political infighting and unaccountable governance. While the heads of various political parties are emitting congenial noises, their acts speak differently. Contrary to the stated consensus on the restoration of a parliamentary form of government amongst political parties, the election of the head of the PPP as president ensures that the presidency shall de facto remain the vortex of power. The new president may now retain, even de jure, the powers that his much-maligned predecessor enjoyed.
Most significantly, if the government's imperviousness to the public sentiment voiced during the lawyers' movement is any indication, we are witnessing another period of civilian rule that is tantamount to an 'elective dictatorship.' The most significant policies are being made, by all accounts, not in the chambers of Parliament by elected representatives but in the corridors of real power. As a character in a film once summed it up, there are only three real players in Pakistani politics: Army, Allah and America. An elected president, who is vulnerable on many counts, including serious charges of corruption, is as good a puppet as an unelected president desperately in search of legitimacy. Such is the great game!
While there is no hope for meaningful political accountability of the governors, the limited legal accountability that judicial review of legislation and executive action that the judiciary may intermittently supply acquires a messianic aura. Such is the failure of accountability in the Pakistani state that those unelected judges who, after years of subservience to the dictates of a military regime, chose to offer some resistance are celebrated and put on a golden pedestal. And yet, despite an acknowledgment of the popular support offered to them, the fact that so many of them fold so meekly in the face of realpolitik, speaks more about the brutality of that reality than the characters of the men facing it.
Moeen Cheema is an Assistant Professor of Law & Policy at the Lahore University of Management Sciences in Lahore, Pakistan