March Issue 2010

It was yet another U-turn and a major climbdown by the Pakistan Peoples Party (PPP)-led government as its beleaguered prime minister accepted all the recommendations of Chief Justice Iftikhar Chaudhry regarding the appointment of judges to the superior courts, including the controversial ad-hoc employment of a retired judge.

Much to the disappointment of some senior PPP leaders and close aides of President Asif Ali Zardari, it was “a hasty and an undignified” retreat.

Confronted by an adamant chief justice, who did not yield an inch in the gruelling three-hour long meeting at the PM House on February 17, Prime Minister Yousuf Raza Gilani had to cave in.

“There was a discreet message from the establishment to defuse tensions with the judiciary,” said a close aide of the president, requesting anonymity. Another PPP source, who also asked not to be named, said apart from other factors, the army had nudged the government towards a swift compromise.

The army had played a similar role in averting a crisis in March 2009 when the government reinstated deposed judges to end a long-March led by opposition leader Nawaz Sharif. And just as on March 16, 2009, Gilani was once again in the forefront in defusing an explosive situation.

“Mistakes are committed sometimes,” said Gilani, as he announced that the CJ’s recommendations had been accepted, paving the way for a new presidential notification to supersede the February 13 one. The earlier presidential notification — which sparked the stand-off — was suspended hours after its issuance by the chief justice through a special three-member bench in a late-night one-sided hearing.

The new presidential notification not only retained Khawaja Sharif as Lahore High Court Chief Justice and elevated Saqib Nisar and Justice Asif Saeed Khosa to the Supreme Court, but also appointed retired judge Khalilur Rehman Ramday to the Supreme Court on an ad-hoc basis. The February 17 surrender was in stark contrast to Gilani’s tough talk in the National Assembly only a couple of days earlier, when he said that parliament needed to approve the March 2009 executive order that had reinstated the deposed judges.

No doubt, the latest executive-judiciary confrontation and the way it was contained underlines the inherent contradictions between different state institutions. Additionally, it exposes the weaknesses of the Zardari-led PPP, which has suffered one public setback after another since it assumed power in March 2008. Apart from being swamped again by allegations of corruption and poor governance, this is the first PPP government to lose its credibility and popularity in such a short period.

Although PPP loyalists blame their government’s negative image on vested interests and propaganda by a section of the media working on a specific agenda, analysts say they have the proverbial habit of shooting themselves in the foot.

But Latif Khosa, former attorney general and a close aide of the president, said such remarks were “uncharitable.”

“In a democratic dispensation, there is always an inbuilt flexibility. We have not lost face or popularity by accepting the CJ’s recommendations. We have shown grace and not made it a prestige point.”

However, PPP officials and many independent legal experts believe that the ad-hoc appointment of Ramday could have been blocked had the government decided to defend the earlier presidential notification. Justice (retired) Tariq Mehmood, a leader of the lawyers’ movement, said Article 182 of the constitution clearly states that the chief justice needs the president’s approval on ad-hoc appointments. “Ad-hoc appointments set a bad precedent,” he said. “Instead, the number of permanent judges should have been increased.”

But ironically, the number of judges was slashed back to the original 17 from 29 in a July 31 verdict against the government’s move to increase the number through the finance bill rather than by an act of parliament.

Mehmood said the judges themselves object to ad-hoc appointments in the government departments, but retired officials are being brought back into the judiciary through this very back door.

According to PPP hardliners, their legal team committed a blunder while managing the notification issue. “The first notification was issued following an assessment by the law ministry that Justice Saqib Nisar would accept his appointment as Chief Justice Lahore High Court,” said a close confidant of President Zardari. “But he backed out.”

Photo: AFP

The lack of spadework by the PPP legal eagles — including Babar Awan and Latif Khosa — could be gauged from the fact that they had no fallback plan when the CJ decided to strike back.

According to former law minister and PPP dissident, Iqbal Haider, the government took the plunge hoping that if the two judges failed to take oath within 24 hours, they would automatically stand retired. “But their cunning plan backfired as the chief justice proved to be quicker on the draw.” I don’t know why the president has a reluctance to do good readily,” remarked Haider. “He always seems to take the right step under pressure or as the last option. Ostensibly, he prefers to give the credit to others.”

The latest bout with the judiciary has, undoubtedly, left the government red-faced and its rivals claiming yet another victory. (See box for details)

Another PPP official, who is a core committee member, admitted that the party realises that it mishandled this whole issue. “In the core-committee meeting, there definitely were two opinions. One view was that we should fight the case and go for a judicial verdict,” he said. “It wouldn’t have been easy for the bench to give a verdict on the president’s first notification as it was legal and constitutional. We could have executed the CJ’s recommendations in case of a negative decision, which we eventually did in the out-of-court settlement. Now the president seems to have been reduced to a mere postbox as far as the appointment of judges is concerned,” he added.

The second opinion — which prevailed and was supported by the prime minister and some cabinet members — was to end the conflict before the court took it up for hearing. They feared it had the potential to get out of hand and could have led to more negative judicial decisions, the PPP source said.

President Zardari approved an out-of-court settlement, further strengthening the chief justice’s position and resulting in a loss of face for the government in public — not for the first time since it came to power in March 2008.

The PPP hawks say that contrary to the common perception, the president did not reject the CJ’s December 19 recommendation. The president, acting on the prime minister’s advice, asked the CJ to reconsider recommendations on the basis of seniority and natural expectancy in line with the Al-Jihad case, they said. The CJ responded with a 10-page letter, using the argument that he was seeking new appointments and not promotions. He also wrote that the principle of seniority had never been upheld in such cases in the past, official sources said. As there was a difference of opinion, the president being the constitutional appointing authority, took the decision, they added.

Athar Minallah, an eminent lawyer and another key leader of the lawyers’ movement, however, said the government’s legal team did not give the correct advise to the prime minister. “Under Article 260, the chief justice’s recommendation is binding on the president,” he said.

Another senior lawyer, Ahmed Raza Kasuri, said under Articles 177 and 193, the president is the appointing authority for Supreme and High Court judges, with the consultation of the chief justice. “The consultation doesn’t mean that the entire prerogative of appointment lies in the chief justice’s hands. The president will consult, but if he does not agree he has to write the reason.”

However, Minallah said that under former president Pervez Musharraf’s Legal Framework Order 2002, the recommendations of the chief justice remain binding on the president.

Photo: AFP

As the legal fraternity remains divided on the issue, the PPP leaders allege a conspiracy to destabilise the government and target President Zardari. “But they don’t have the required numbers in parliament to impeach him,” said a close presidential aide. “They can only get him through extra-constitutional means, which is not feasible in the present circumstances, or through the judiciary. Therefore, the latter has become an option now.”

He, however, maintained that even for the judiciary it’s not easy to get the president as he enjoys constitutional immunity and that includes the Swiss cases. “Without confrontation, we can contain this threat and complete our term, which will benefit the system and democracy.”

But the task is easier said than done. The PPP’s policy of appeasement does not seem to work on the re-energised judiciary, which soon after its victory on appointments has started pressing for opening the Swiss and NRO cases with renewed zeal. Despite the lip-service paid by the government to the implementation of the Supreme Court verdict, it is unlikely that it would move against its own president in any local or international court. In fact, background interviews with several senior PPP leaders reveal that the party considers this judiciary as being partisan and biased and trying to ingress in the ambit of the executive through unnecessary activism.

The tidings in Islamabad suggest that the confrontation between these two pillars of state is likely to increase over the coming weeks and months, which is indeed a bad omen for the country, confronted with pressing economic hardships and the ever-growing menace of terrorism. As the country lurches from one self-inflicted crisis to another because of the judiciary-government tussle, the military establishment indeed seems to have assumed both the balancing and veto power in this triangle. For how long this situation will last is anybody’s guess!