Daily Times editorial Feb 19, 2010

A small compromise today…

Although the crisis that had blown up on the issue of judges’ appointments appears to have abated, it has thrown up many issues requiring serious reflection. The government, after issuing a presidential notification on judges’ appointments on Saturday, retreated without qualification through the extraordinary efforts of Prime Minister Yousaf Raza Gilani, who broke the ice while surprising everyone by turning up uninvited at Chief Justice (CJ) Iftikhar Muhammad Chaudhry’s farewell dinner for Justice (retd) Khalil Ramday. The next day, the CJ in turn called on the prime minister, following which the earlier notification was withdrawn and a superseding notification elevating Justice Saqib Nisar and Justice Asif Saeed Khosa of the Lahore High Court (LHC) to the Supreme Court (SC), retaining Justice Khwaja Muhammad Sharif as the LHC CJ, and appointing Justice Ramday an ad hoc judge of the SC for one year was announced. This meant that all the recommendations of CJ Iftikhar Muhammad Chaudhry were conceded, with the addition of Justice Khosa. The president has also been pleased to appoint 22 new judges to the LHC and nine to the Sindh High Court. For the moment at least then, it appears that the crisis between the executive and judiciary has been defused.
Having said that, it is alarming to note the recurring pattern of ill-prepared, rash adventurism by the government, followed by ignominious retreat and greater concessions on a number of issues during the last two years. A bare recounting of the crises revolving around restoration of the judiciary, the ISI debacle, the NRO conundrum and now the latest furore over judges’ appointments points to a serious flaw in the manner of functioning of the government. It is easy, as some analysts are doing, to blame the advice or advisors of the president and government for tendering wrong or misleading advice that has repeatedly landed the government in hot waters. Responsibility for accepting such advice cannot simply be shrugged away. The buck stops at the top. In normal democracies, where political parties enjoy internal democracy, such a track record would by now have resulted in voices from within the ruling party baying for blood (i.e. questioning their own leadership). However, since Pakistan is far from a normal democracy and our political parties are more dynastic family enterprises than internally democratically functioning organisations, this appears a remote possibility, despite dissenting opinion within the ruling ranks. If the government continues to blunder in the manner indicated above, such dissenting voices and the barely hidden restlessness within the ruling PPP’s ranks is likely to grow. To this may well be added the extra pressure brought to bear by the opposition and other forces, rendering a government with weakening credibility even more fragile. Such a scenario may well present the government with only two choices: to cling to power on the basis of its numerical majority and try to weather out the buffeting storms, or, what may be unthinkable for even the most stout-hearted in the PPP, return to the electorate even before the end of the government’s mandated term. Whether the latter option would yield a different result from the present dispensation, however, is open to question. In that case, weathering the storm requires an improved performance by all sections of the government, without absolving the top leadership of its ultimate responsibility for the decisions of the government.
A troubling thought is that the latest crisis and the manner of its resolution have tilted the discretion for judicial appointments heavily in favour of the judiciary, especially the CJ. Some critics are warning that on this path lies judicial dictatorship. That may be too alarmist, but the validity of the argument for separation of powers and checks and balances on all pillars of the state remains unquestionable. If in our past the executive has played havoc with the independence of the judiciary by manipulating appointments, the judiciary too has much to answer for, collaboration with successive military dictators being foremost. If both executive and judiciary can draw the appropriate lessons from this sorry history, there may still be scope for completing the haltingly groping process in motion of revisiting and redefining the appropriate respective spheres of the pillars of the state and ensuring the dividing boundaries are clearly drawn and understood. If the executive and judiciary are able to rise above the distant and recent past and help this process, Pakistan may come to see the kind of institutional stability that has been conspicuous by its absence so far. If not, we may well look back on the ‘settlement’ of the latest crisis as a case of the famous aphorism: A small compromise today engenders a bigger war tomorrow. No one who is a well wisher of the country can view such a possibility with sanguinity.