Daily Times Editorial Feb 1, 2010

Past mistakes

Objective observers of the national political scene may well by now be both puzzled and sickened in equal measure at the repeated statements by sections of the opposition, media and lawyers that the government, by not implementing the Supreme Court’s (SC’s) NRO verdict, is preparing the ground for a clash between the executive and the judiciary. It is this continuing campaign that has forced the prime minister, and the Chief Justice (CJ) of Pakistan the other day, to reiterate that no such clash is in the offing. Whereas the CJ has stated unequivocally that the judiciary too wishes democracy to continue and be consolidated, the prime minister has once again felt constrained to clarify the situation according to the government’s lights.
Prime Minister Yousaf Raza Gilani has been constrained to point out that neither the politicians nor the judiciary would repeat the mistakes of the past, having matured and learnt lessons from the sorry history of the country. The prime minister said further that he would take no steps that might affect the stability of any institution. As to the seeming controversy about the appointment of judges, the prime minister attempted to pour cold water over the wishful thinking of some quarters that this provides additional ammunition to berate the government and put it under more pressure by saying that the matter would be resolved through consultation at the appropriate level, which happens to be the correct constitutional and procedural position. The ‘controversy’, if at all it may be so described (some are inclined to dismiss it as a storm in a teacup), concerns the government’s rejection of the CJ’s advice that Justice Saqib Nisar, the senior judge of the Lahore High Court (LHC) be elevated to the SC. Instead, basing itself on the principles laid down by the SC in the Al-Jihad Trust case, the government has requested the CJ to reconsider his advice and instead agree to elevate the CJ of the LHC, Justice Khwaja Sharif, to the apex court, being the senior most judge of the LHC. The constitution and rules allow the government to do this, and in the face of the opinion that the advice of the CJ is binding, it is legitimate to ask why, if the advice is binding, is there the rule that the president would, in the event of rejecting the CJ’s advice, be constrained to explain his reasons in writing? Unfortunately, legal matters have become so entangled with the politics of unseating the government and the president, that even steps in accordance with the law are being unnecessarily questioned in the hope of stirring the pot to boiling point.
As to the issue of implementing the SC’s NRO verdict, out of 8,041 beneficiaries of the NRO, 34 were politicians, 12 of these belonged to the PPP, and around six of these are ministers who are now facing the courts after the reopening of their cases. Where is the non-implementation factor in this? The Swiss case, which the NRO verdict wanted reopened because it held that former Attorney General (AG) Justice (retd) Malik Qayyum withdrew it off his own bat without proper authority, is not so simple a matter. In the first place, it is inconceivable, no written instructions being available to Malik Qayyum notwithstanding, that the former AG could have stuck his neck out so far under the one-man rule of General Musharraf, who did many things without putting them down properly on paper. Second, the prime minister has argued that Article 248 of the constitution provides immunity to the president so long as he holds office from criminal or any other prosecution in the courts. Third, the case having been withdrawn, however controversially, are the Swiss courts and authorities willing to go along now with the request, should it be forthcoming, of the Pakistan government to reopen a withdrawn case? It is reasonable to state that the jury is out on this one too.
The prime minister has voiced his confidence that the government will fulfil its five year term according to the people’s mandate. That seems reasonable so long as it enjoys a majority in parliament and no extra-constitutional or anti-democratic manoeuvres are attempted. Those who do not like this government or the president are advised to be patient and wait for the next elections if they wish to see their backs, but that too only through the ballot box, not at the point of a bayonet or other tactic extraneous to democratic dispensations.