After weeks of spin by Asif Ali Zardari, co-chairman of the ruling Pakistan People's Party (PPP) , on the issue of restoration of the sacked judges, former prime Minister Mian Nawaz Sharif's Pakistan Muslim League has quit the coalition government. The outcome of the long and protracted talks between the two leaders in Islamabad, Dubai and London were not unexpected.
It was clear even before the February elections, in which PPP and PML-N emerged as two leading winners, that the PPP is not in favor of restoring the judges sacked by President Musharraf when still he was donning uniform. Not surprisingly, restoration of judges was not included in the election platform of the PPP.
The Benazir-Musharraf deal prevented the PPP from including the widely popular demand for restoration of the judges in its election manifesto. The IRI polls of November suggested that an overwhelming majority (73 per cent) of Pakistanis opposed the judges appointed by President Musharraf under a Presidential Constitutional Order (PCO) and Musharraf's re-election (72 per cent). At the same time, 61 per cent of Pakistanis opposed a Musharraf-Bhutto deal in November 2007.
The obvious reason to drag these talks was to out maneuver Mian Nawaz Sharif who actually won election on the issue of judges. Not only that, almost every Pakistani is committed to the cause of the judges' restoration. Political workers and apolitical citizens by the dozens, paid with their lives for this commitment, especially on May 12, 2007 in Karachi when the MQM government prevented Chief Justice Iftikhar Ahmad Chaudhry to address a Sindh Bar Council gathering.
The judges controversy has fully unmasked the political agenda of Zardari who is implementing the US-backed Benazir-Musharraf deal in letter and spirit. Zardari is also shielding Musharraf in the current food and power shortage crisis created by the eight year long misrule of Musharraf whose unconstitutional measures were endorsed by the compliant judiciary. The question is what is at stake for Zardari?
On May 13, the Sindh High Court quashed the so-called container case against Asif Ali Zardari and former high commissioner in London Wajid Shamsul Hasan. The case was instituted by the Federal Investigation Agency in February 1997. It alleged that Mr Zardari, a federal minister in his spouse Benazir Bhutto's cabinet, sent eight wooden boxes of precious artifacts by the Pakistan International Airlines to the United Kingdom in May 1996. No customs duty or freight charges were paid and the consignment was received at Heathrow by an agent authorized by Mr Shamsul Hasan, the then Pakistan high commissioner in London. With this verdict Zardari has been exonerated of all corruption charges against him. This was possible only under the National Reconciliation Ordinance that is supposed to be challenged if sacked judges are restored.
Logically, Zardari is determined to safeguard the Establishment judges who upheld the National Reconciliation Ordinance that manumitted Zardari from all criminal action.
Another important issue before an independent judiciary will be President Musharraf's controversial re-election in October 2007 while he was still active army general. On Nov. 3, days before the Supreme Court was to rule on the challenges, General Musharraf suspended the Constitution and fired several justices. He then appointed a new court of 11 judges who struck down six challenges to his re-election. If the sacked judges are restored, they will definitely take up cases to challenge Musharraf's re-election.
Hence, US Assistance Secretary of State Richard Boucher rushed to London last week to pressurize Nawaz Sharif in a bid to agree on a formula that would not fully restore the sacked judges. Obviously, Washington does not want the restoration of the sacked judges who will become a threat to President Musharraf who is its most reliable man in Islamabad. The US is eager to ensure its key ally on terror does not bow out before President Bush, so that the pretence of 'success' in the war against terrorism can be dragged on.
If an act of the Establishment were to be taken to a court dominated by the judges appointed by President Musharraf under his controversial Presidential Constitutional Order (PC) we can easily tell in whose favor they would vote.
In short, Zardari has become the "B team" of the Establishment which does not want an independent judiciary that will not bow down to pressure, sticks or carrots. Historically, many verdicts of the courts were not independent but extorted by threats and intimidation. Judges had regularly fallen victim to blackmail and "sex tapes" and received dictations from the Establishment. Judges who were bold enough not to obey the whims of the Establishment were conveniently removed.
As he became a growing threat to the Establishment, Chief Justice Iftikhar Chaudhry was summoned to General Musharraf's camp office in the presence of serving military officers and the infamous Brig (r) Ejaz Shah on March 9, 2007. When he refused to resign, the nation stood up in his defense. This was unprecedented in the history of Pakistan and soon Chief Justice Iftikhar Chaudhry became a national hero, arguably the most popular Pakistani alive today.
The two greatest administrative reversals that the regime had faced in eight plus years of rule - the Steel Mill privatization case and the ongoing missing persons case - have come from the Supreme Court led by Justice Iftikhar Chaudhry. There was also the cancellation of plots allotted to army officers in Gawadar in addition to cases involving disposal of nuclear waste, NWFP Hasba bill, petroleum prices, and net hydel profits.
Invoking the non-existent powers of the Army Chief on November 3, under a declaration of emergency rule, General Musharraf dismissed more than sixty high court judges and implanted the dismissal order in the Constitution as an amendment. The order/amendment reads: "A Judge including the Chief Justice, of the Supreme Court, a High Court or Federal Shariat Court who had, not been given or taken oath under the Oath of Office (Judges) Order, 2007, had ceased to hold office on and with effect from the 3rd day of November, 2007."
With the failure of the newly elected government to solve the crisis facing the judiciary and the restoration of the 60 deposed judges including 17 judges of the Supreme Court, the systems of the rule of law and justice have become a mockery. It will severely damage the rule of law, supremacy of the judiciary and even the civilian rule of the country. It will, in fact, work to strengthen the designs of the military generals who do not want a free and independent judiciary.
At the same time, Nawaz Sharif's move to quit the coalition government and support lawyers struggle for the restoration of judges is a threat to the fig leaf of democracy in Pakistan.