The Chief Justice of Pakistan, Iftikhar Mohammad Chaudhry, has all but knocked out the Prime Minister and President of Pakistan and routed the Government of Pakistan. His Will is Law and will be upheld. The issue at stake is the packing of the higher judiciary with handpicked nominees of the CJP regardless of the opinion of the Executive, regardless of the merits of each case, and regardless of the principles of seniority and expectancy regarding promotions and appointments of High Court and Supreme Court judges as enunciated in the famous Al-Jihad or Judges Case of 1996.
As opposed to the CJP, the government argued in favour of “seniority” and “rightful expectancy” for promotion purposes, and against ad hoc appointments to the SC, as enunciated in the Al-Jihad case. There was no overt political jobbery at stake here from the government’s point of view. None of the judges in contention has ever avowed any pro-PPP feelings or views. If anything, they are stout members of the conservative Punjabi establishment.
The CJP has triumphed and the government has lost for a host of important reasons, not least the inept and stupid handling of the issue by the Presidency. In essence, however, the CJP has shrugged off important rulings of the Al-Jihad case by relying on another ruling of the same case that grants “primacy” in the final analysis to the decision of the CJP as a consultee over that of the President as the appointing authority. It does so by conferring power on the CJP to establish a bench of his fellow judges to decide whose view should prevail. In other words, the SC has become the judge and jury in all such cases and the President has as much chance of standing as a snowball in hell. The culprit is a clause in an article of the constitution that says “consultation” between the President and Prime Minister (as head of the Executive) on various matters is not binding on the President except in matters related to appointments of judges (where the CJP’s advice is binding). This was inserted into the constitution in 2002 by President General Pervez Musharraf who wanted unequivocal powers to appoint the service chiefs, provincial governors and election commissioner, by way of exclusion of the same power in the specific case of judges. Apparently, he never envisaged a situation in which his handpicked CJP would ever defy him or his successor.
This is an unacceptably weird situation. Every organ of government is accountable to some other organ or can be checked by it. But the SC is now only accountable to itself. The PM, service chiefs and Parliament can be sacked by the President. But the President can be impeached by Parliament and the SC can overrule any presidential sacking of Parliament. Indeed, Parliament, which is supposed to be supreme, can be knocked about by the SC. But the SC is immune even from a constitutional amendment in Parliament that seeks to cut it down to size because its power of judicial review entitles it to determine the “spirit” of the constitution even when the words of the constitution as legislated by the people’s representatives clearly say otherwise.
The CJP and his political and legal supporters have clutched at one element of the constitution and Al-Jihad case to override other aspects of the same legal framework. But there are other disquieting elements of this tussle between the judiciary and the PPP government. One is the fact that all the major judicial decisions since the restoration of the CJP and his fellow judges seem to be going in favour of the Pakistan Muslim League Nawaz opposition and/or against the PPP government. These relate to the overthrow of Governor’s Rule and the right of Mian Shahbaz Sharif to remain chief minister of Punjab, the overthrow of the judgment convicting Mian Nawaz Sharif as a plane hijacker, the reopening of corruption cases against PPP stalwarts led by no less than President Zardari, and so on. Now it is speculated that the SC might even declare unconstitutional a clause in the constitution that bars third term prime ministership and chief ministership, which is a roadblock for both Sharifs.
The government’s abject retreat before the CJP on Wednesday is a harbinger of things to come. Some temporary respite aside, pundits forecast more and not less trouble ahead for the besieged PPP government. Slowly but surely the SC is throttling the Executive and rendering it ineffective. The government is in no position to amend the constitution because it lacks the numbers. The opposition wants an early election. But there are a couple of flies in the ointment.
The CJP and the army chief are all too aware of Mr Sharif’s track record in his two previous stints as PM as far as subjugating the judiciary and lording it over the army is concerned. So if ever push comes to shove for Mr Zardari at the behest of these two powerful but unaccountable organs of the state, it is inconceivable that they will acquiesce in favour of Mr Sharif after ousting Mr Zardari. Mr Sharif would be well advised to remember this in these troubling times for democracy.