The 62 point constitutional package announced by the PPP is now in the hands of its coalition partners. More significantly, it is being perused by President Pervez Musharraf’s men and leaders of the lawyers’ movement. Everyone will want to see what there is in it for them.
The lawyers have several demands. (1) The package should restore the pre- November 3 judges (2) It should do so with all their old powers, seniorities, etc., intact. (3) It should oust the post-November 3 judges. (4) It should punish the post-November 3 judges for taking oath from a military dictator.
Mr Nawaz Sharif has many demands too. (1) It should satisfy the lawyers’ requirements. (2) It should remove the constitutional restrictions on being prime minister for a third time. (3) It should enable him to contest elections by reprieving him of the conviction for kidnapping and terrorism that hangs around his neck. (4) It should pave the way to getting rid of President Musharraf, his nemesis, whose very presence in office is a bitter reminder of his trials and tribulations since the coup in 1999. (5) It should restore the prime ministerial system to its powerful glory as in the pre-coup 1999 days.
(6) It should lead to the establishment of a judiciary that is “autonomous” but not obstructive – memories of the 1998 clash between the Supreme Court of Sajjad Ali Shah and the Sharif executive are still fresh in his mind.
Mr Asif Zardari also has certain definite requirements from such a constitutional package. (1) He needs concrete guarantees that the criminal cases drummed up against him in the past by the Sharif and Musharraf governments, which have now been eliminated via the National Reconciliation Ordinance, can never be revived. (2) He also wants to ensure, like Mr Sharif, that an elected government can never be sacked again by a president acting at his dictatorial or whimsical discretion. (3) He too wants an independent but non-obstructive judiciary so that the executive is not gridlocked. (4) He wants to avoid a confrontation with any of the stakeholders that would destabilize his fledgling government and cut it short.
Finally, the package has to get President Musharraf on board because the numbers game in parliament cannot succeed without the support of the King’s Party. And the president’s maximum demands are that (1) his powers shouldn’t be touched (2) the pre-November 3 judges shouldn’t be restored so that his presidential election of November 15 is not challenged and overthrown.
How does the package fare on all these counts?
Clearly, the document has been crafted in order to balance the interests of one stakeholder against the other by extracting a minimum compromise from each in their larger longer term common interest. So we can deduce the final form of the bill if and when it is finally passed. (1) The old judges, including Iftikhar Chaudhry, will be restored. The lawyers and Mr Sharif will thus be pleased. (2) Some restrictions will be placed on the chief justice’s tenure and powers so that he cannot act like a maverick by using suo motu provisions or discretionary powers to gridlock the executive. Mr Sharif and Mr Zardari will thus be relieved that they won’t have to contend with another prickly chief justice like Sajjad Ali Shah or an ambitious and politicized judge like Iftikhar Chaudhry when they are in power. (3) The post-November 3 judges who have bailed out Mr Zardari (NRO) and President Musharraf (Presidential election) will be retained to maintain the balance of power between the old and new. This will comfort Mr Zardari and President Musharraf. (4) President Musharraf will be stripped of his discretionary powers to hire and fire governments, prime ministers, provincial governors and service chiefs. This is what everyone wants. But some of these powers may be transferred to the National Security Council to be chaired by the president in which a majority of the members will be civilians nominated by the prime minister. This will please the armed forces which will be represented at the NSC and also enable Mr Musharraf to make a non-confrontational exit in time to come.
If President Musharraf doesn’t agree to this face-saving device, the political coalition arraigned against him will have two options. (1) It can choose to pass an executive order based on a parliamentary resolution restoring the old judges and dare the president to call the armed forces to his rescue – an order that the current army high command may not follow as in 1998. (2) It can launch impeachment proceedings and bring continuous pressure to bear on the president until the Senate elections are held next year and the numbers are available to throw him out.
With a little give and take, everyone can emerge a winner in this exercise. But we shouldn’t expect anyone to throw in the towel without a fight. So there will be resistance from all the players who will blow hot and cold. This means that the constitutional package may be presented in parliament quickly as a show of Mr Zardari’s intention to resolve the issues but only passed in due course after various compromises are incorporated into it. This is the stuff of politics that we Pakistanis have so come to love and hate.