The end game begins

Daily: The Statesman
Date: 10.05.08

“Why should you mind being wrong if someone can show you that you are?” – A. J. Ayer

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

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.

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