Impossible judicial crisis
Former prime minister Nawaz Sharif said Pakistan's deposed judges will be restored on 12 May -- they won't be, writes Graham Usher in Islamabad
On 2 May Nawaz Sharif -- whose Pakistan Muslim League-Nawaz (PML-N) is one of the two main parties in Pakistan's new coalition government -- preached "good news" after long negotiations in Dubai with the Pakistan People's Party (PPP), the other main coalition partner. "I want to inform the entire nation that on Monday 12 May all the deposed judges will be restored. The national assembly will approve a resolution the same day," he said.
The "good news" did not travel well. It was the second time in as many months Sharif had pledged a date to reinstate some 70 or so senior judges President Pervez Musharraf had sacked under emergency rule last year. The first deadline -- 30 April -- came and went with the judges un- restored. So will 12 May, says a PPP leader. "We haven't agreed to the 12 May deadline. We agreed to set up a committee to come up with solutions acceptable to all stakeholders. And that takes time."
For Pakistan's political class the issue of the sacked judges now overarches all others -- the chronic power outrages in cities like Karachi, the food crises assailing the poor, even the smoldering insurgencies on the borders with Afghanistan. And that is so because it exposes the complex contradictions between the presidency, government and judiciary thrown up by the 18 February elections and by the deals that preceded them.
On 3 November 2007 then General Musharraf sacked the Chief Justice Iftikhar Mohamed Chaudhry and the other judges for one basic reason: Pakistan's Supreme Court was about to rule invalid his presidential "election" in October. He then installed a quisling judiciary to approve that act and all others taken during the six-week emergency.
The judges' ouster cast a pall over the February elections -- darker in fact than the assassination of PPP leader and former prime minister Benazir Bhutto late last year. Although the PPP emerged as the largest single party at the polls, its share of the vote wasn't much higher than in the 2002 elections. The wildcard was the PML-N. It swept aside all comers in the Punjab, Pakistan's richest and most populous province, and did so on the back of one issue: reinstatement of the sacked judges.
"Nawaz staked all on Chaudhry and the gamble paid off," admits another PPP leader. "We did not realise until it was too late that there was no شBenazir factor' in the 2008 elections."
The upshot was that the PPP could not form a coalition without the PML-N, its political rival. And the PML-N price for an alliance was plain: reinstatement of the judges within a timeline of 30 days. PPP chairperson and Bhutto widower, Asif Ali Zardari, agreed -- only to then signal that what he was giving with one hand he was taking away with the other. "I don't believe in clocks," he told the BBC last month. "I've signed a 30-day declarationة but the fact that [the clock] is ticking or not ticking, I don't buy that. They don't intimidate me."
Ostensibly the difference between two coalition partners is not if the judges will be restored, but how. The PML-N believes it can be done through a parliamentary resolution followed by an executive order. The PPP believes it will require an act of parliament since there are legal issues -- like Musharraf's appointment of 17 new judges to replace the old ones -- that cannot be "wished away", says a PPP source.
But behind Zardari's tardiness is another cause: reinstatement of the old judges would rend the delicate understandings stitched last year between Musharraf and his late wife. Very simply, Bhutto had agreed to back Musharraf as a civilian president if he granted amnesty to her, her husband and her party on a slew of corruption cases still pending from the PPP's previous stints in government.
And, as far as Musharraf is concerned, he has delivered on the deal. He allowed her to return from exile, withdrew government cases against her and Zardari, stood down as army chief of staff and allowed relatively free elections -- so free that Musharraf's own "Kings" party was routed. The president now expects the PPP to reciprocate. It is a sentiment shared by Washington, London and, most importantly of all, the Pakistan army.
But Zardari cannot reciprocate. If the old judges are restored, they may rule against Musharraf's presidential election. Even if an understanding can be reached between the presidency and judiciary, Sharif has said he believes Musharraf should be impeached for "unconstitutional" and "illegal" acts committed during the emergency. The PML- N currently lacks the parliamentary numbers to do this. But Senate elections early next year could change things.
Is there any way out? On 4 May -- via the editorial of a sympathetic newspaper -- Musharraf leaked a compromise. It said he would be prepared to give up certain authoritarian powers -- such as the ability to dissolve parliament -- if an indemnity were granted his post-3 November actions, including the sacking of the judges. But he would want to preserve the president's prerogative to appoint military chiefs as well as the extra-parliamentary National Security Council, two powers that essentially formalise the army's role in governance.
The PPP could live with this, since there is nothing here that Benazir Bhutto had not implicitly agreed to. Sharif would have difficulty, especially over the indemnity clause. The lawyers would oppose it. They have already vowed that if the judges are not restored as per 2 November they will take to the streets no less against the new government than the old dictator. Former Supreme Court Justice Tariq Mahmoud explains why: "For us the issue is the law. On 3 November Musharraf admitted he committed an unlawful act. Now the same man wants to retrospectively make that act lawful. How can that be allowed to stand?"