My article for Pakistan Today [Fri, Oct 22]
The Supreme Court’s Oct 21 decision to return Article 175-A to parliament for review is good news. The article amended the procedure for appointing superior court judges.
But while the Chief Justice of Pakistan said in his remarks that the article “harmed judiciary’s freedom”, the SC chose not to strike it down. This speaks of a mature approach and must be lauded, given the fraught relations between the executive and the judiciary.
Just days ago the two sides came close to the brink over a silly rumour passed on as credible news that the government was planning to get rid of the judges restored by its March 2009 notification.
The government seems happy and both Prime Minister Yousaf Raza Gilani and the government’s counsel have publicly appreciated the verdict. They also said it should dispel any lingering impression that the government and the judiciary are, or were, on a collision course.
I’d go along with this. Consider.
One, the new procedure for appointing judges is not something that all the judges agreed with. Even during arguments in the court, some showed the desire to strike it down. They were unhappy that by changing the procedure the amendment purported to consign to oblivion the SC decisions on two previous occasions (Al-Jihad I & II). Those decisions had served to vest the ultimate authority for the appointment of the judges in the office of the CJP. Also, by creating a more elaborate procedure and setting up a parliamentary commission to deliberate the recommendations of the judicial commission the amendment, according to hard-line opinion in the judiciary and sections of the legal community, attempted to give parliament a say in the judges’ appointments. That, they argued, was unacceptable.
Now, the court has offered a compromise, realising that striking down the amendment would not only pit it against the government – bad enough – but would also end up creating bedlam. The court, one can assume safely, would then be swamped with any number of petitions, moved by any number of fringe loonies, asking it to strike down this and that constitutional provision. A real danger this, by the way, in a country infested with mischief-makers.
The SC has now asked the parliament to streamline the working of the judicial commission so this issue can be made to rest. It has meandered towards that understanding, sure. This possibility was on the table even six months ago when the court was clearly in a more belligerent mood. True also is the fact that the court may not have arrived at the wisdom of its stated position through its internal devices. But that is immaterial. Whether it saw the potentially negative consequences of its earlier stance or was made to is not the issue. What is important is what is contained in its verdict. And that is definitely commendable.
The government doesn’t need to sweat too much to tweak the functioning of the parliamentary commission to the satisfaction of the judiciary. Nearly three months is ample time for it to do so. In fact, lest the point be lost, in sending the article back for review, the court has not demanded that the parliamentary commission be done away with. That is very significant and should leave those banking on a clash which could ultimately lead to the ouster of the current government with egg on their faces.
This is also the point at which the issue links up with the broader question of what to do with this government. There is no gainsaying its weaknesses. But I would like to have a wager with the detractors on getting another in its place that is likely to be any better than this one. And if anyone is relying on the Periclean wisdom of the Nawaz League then he definitely has a short memory. Also, he mayn’t be watching governance in the Punjab closely.
The irony is that when we don’t have the procedures that inform democracy, whatever be the quality of it, we don’t tire of demanding a return to the very same flawed democracy. But when we get it, we want nothing less than a return to Eden. That doesn’t happen and is not likely to. Procedures require that we follow the rules for getting rid of a government. Move a vote of no-confidence; or if that is not possible, to wait for the next elections and punish the incumbents.
There is no third way. As for relying on the SC’s hammer, the current verdict, if nothing else, should make clear that the court has come round to looking at the idea of its own independence and strength as part of a more expansive concept than anchoring itself in the reductive concept of pure application of the law sans reference to anything else.
This is why it is instructive for hard-liners on the political side to also take a cue from the SC verdict. To say the court has no business asking parliament to review anything created by the latter is as unnecessarily intransigent as the earlier position taken by the court, at least in statements that preceded the court’s wise verdict.
Frankly, live as we do in interesting times, it’s not every day that one can celebrate and raise the glass to victory for all. I shan’t miss the opportunity.
The writer is Contributing Editor, The Friday Times