Monday, May 12, 2008, Jamadi-ul-Awwal 5, 1429    

End game begins

Dr Qaisar Rashid

“Why should you mind being wrong if someone can show you that you are?” – A. J. Ayer (1910-1989).
The reason behind the in-progress tug of war between the presidency and the lawyer community is the firm belief of the President retired General Pervaiz Musharraf that retrospectively the Nov-3 inversion of the constitution, of which the Superior Judiciary was the victim, was his rightful step and that the step has been enjoying the constitutional cover provided by the subsequently installed bench of the Superior Judiciary.
The lawyer community is of the opinion that an administrative superstructure cannot be erected on an illegal step: a superstructure originated from any womb by an illegal conception is unlawful. To elaborate it further, according to the Constitution of 1973, the chief of army cannot declare an emergency or to that effect cannot send an advice to the presidency to impose an emergency. The step of the then Chief of Army, General Pervaiz Musharraf, was unconstitutional and subject to accountability – Article 06. The step in fact, and in effect, was the martial law. Secondly, in light of the constitution, there existed no valid reason for authenticating the step of the President Musharraf to declare an emergency and remove the bench of the Supreme Court. The string of events indicated as if the chief of army were supreme to all, on contrary to his exact status enshrined in the constitution. If all these acts were considered valid, only then any new bench of Supreme Court could be installed and the verdict of that bench could be declared legitimate otherwise not is the opinion of the lawyer community. Hence is the ongoing discussion in the country.
Now, there have emerged two schools of thoughts. According to one school of thought, reinstatement (and removal) of the judges should be done now in light of the provisions of the constitution which stipulates certain measures including the Constitutional Amendment but not the Constitutional Resolution to do so: one illegal step cannot undo another illegal step. Secondly, a Resolution cannot get effect retrospectively. Abdul Hafeez Perzada and Khalid Anwar belong to this school of thought.
On the other hand, according to the second school of thought, an Amendment would mean conceding to the unconstitutional measures taken on Nov-3 by the then chief of army and seconded by the president, who happened to be the same person holding the two offices simultaneously, which was itself an aberration from the constitution. Any affirmation of the Nov-3 step will open the floodgate to more such steps in future committed by the chiefs of army. So, a Resolution should be brought on the floor of Assembly to declare the Nov-3 step illegal and along with that the ousted bench of the Supreme Court should be restored with Chaudhry Iftikhar Hussain as its Head. Chaudhry Aitzaz Ahsan, Ali Ahmed Kurd, and several retired judges of Supreme and High Courts lend support to this school of thought. No doubt, a bad precedent has been set by holding talks outside of Pakistan about the politico-constitutional issue of Pakistan. Nevertheless, the outcome of the Dubai talks can be summarised in these words: Zardari accepted presentation of a Resolution and Nawaz acceded to retention of the PCO judges. In other words, the concern of Zardari was that the PCO judges should not be declared illegal by Parliament because they had authorized the NRO. But they had also confirmed the candidature of the then Chief of Army to become an elected President of Pakistan. Nawaz, therefore, wanted to declare the PCO judges illegal to pave the way for impeachment of the president and to humiliate him to level the score. In the formula of Zardari, however, a face-saving for the president is embedded: a Constitutional Amendment can deprive Musharraf of the 58-2b. Thus, Nawaz has to wait now to make the president a true figure-head and then to force him to resign for one reason or another. In short, both Zardari and Nawaz have taken one step back from their earlier positions. But, will the presence of the PCO judges be acceptable to the lawyer community invites a big question mark.
The lawyer community, which back the second school of thought, has out rightly rejected the idea of retention of the PCO judges: accepting them would mean that the lawyers’ year long movement was useless as they were wrong for boycotting the courts run by the PCO judges. It seems that Nawaz understands the impasse on the judges’ issue. On the one hand, he has offered a concession to Zardari by changing his stance on the future of the PCO judges while on the other hand he has cleverly laid responsibility of devising an agreed Resolution for May 12, 2008, on the committee where members from both schools of thoughts are holding parleys. Musharraf has rightly thrown the bait that he will not invoke 58-2b if his position is not declared illegal, which can only be possible if the PCO judges are not declared illegal by any Resolution; instead, they stay in the Superior Judiciary. Hence, the incumbent committee is basically entrusted with the task of keeping the PCO judges intact in the proposed Resolution to provide a cover not only to the candidature of the President but also the validity of the NRO. It is beside the point that (the consequent) increase in the total number of the Superior Judiciary cannot happen with a Resolution.
In this scheme of things, the lawyer community is again a party. Much now depends on their reaction – which is obvious. Further, in the current debate, two points have been blanketed: first, the President Musharraf himself declared publicly that his Nov-3 step was unconstitutional; and secondly before its ouster, the pre-Nov 3 judiciary had passed an order nullifying any emergency. That is why; sometimes it seems that which school of thought is right and which one is wrong may be decided outside Parliament, before any Resolution or Amendment – perhaps in the streets and on the roads of Pakistan.