JURIST Contributing Editor Ali Khan
of Washburn University School of Law says that Pakistan's "establishment" of generals, intelligence chiefs, and top bureaucrats may yet preserve its longtime hold on power by effectively playing off restored Supreme Court judges against its own retained appointees...
akistan's constitutional shenanigans permit the fox to eat the lion.
Invoking the non-existent powers of the Army Chief last November under a declaration of emergency rule, Pervez Musharraf dismissed sixty high court judges and implanted the dismissal order in the Constitution as an amendment. The order/amendment reads: “A Judge including the Chief Justice, of the Supreme Court, a High Court or Federal Shariat Court who had, not been given or taken oath under the Oath of Office (Judges) Order, 2007, had ceased to hold office on and with effect from the 3rd day of November, 2007.” That a single person can amend the Constitution is egregious. Even more egregious is the demand that the democratically elected Parliament, if it wishes to restore the sacked judges, must repeal the order/amendment with the constitutionally required “votes of not less than two-thirds of the total membership of (each) House.”
Furthermore, the President is armed with the disreputable 58 (2) (b) constitutional power - a provision that General Zial ul Haq inserted in the Constitution - to dissolve the National Assembly if in his opinion a situation has arisen in which the Government of the Federation cannot be carried out in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. Even though Musharraf, who occupies the Presidency through constitutional manipulations, is unlikely to dissolve the newly elected National Assembly in the near future, the new Coalition government which has taken office is frightened by what it calls “the Establishment.” The Establishment
The Establishment is a quasi-pejorative label to describe the combined forces of Pakistan Army generals, intelligence chiefs, and top bureaucrats. In reality, the Establishment is a group of powerful government officials who pool their resources to checkmate policies and persons that cross their path or wish to weaken their grip on power. Founded on vertical hierarchy, the Establishment effectively demands that human resources in the armed forces, intelligence agencies, and bureaucracy take an oath "to discharge their duties, and perform their functions, to the best of their ability, faithfully and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of the Establishment."
The Establishment has no use for an independent judiciary. For decades, the judiciary itself mangled the Constitution to favor and support the Establishment. In a dramatic shift, however, a defiant judiciary under the maverick leadership of Supreme Court Chief Justice Iftikhar Mohammed Chaudhry began to confront the Establishment. The Supreme Court exercised suo motu
jurisdiction to dismantle questionable state policies. The Court summoned the heads of agencies to demand explanation for state-sponsored disappearances. The Court nullified the privatization of steel mills, frustrating the Establishment that was hoping to please friends and make money. All this and more infuriated the Establishment. According to the unwritten rules of the Establishment, the invocation of human rights is blasphemy, the incantation of constitutional supremacy is treason, and the slogan of Sovereign Parliament is rebellion.The Parliament
Even the concept of Sovereign Parliament is a constitutional shenanigan. Politicians and the media take pride in talking about the sovereignty of the Parliament. It is ironic, however, that Pakistan's Constitution in its preamble establishes the sovereignty of God, and not of the Parliament. Under the Constitution, the Parliament exercises authority as a “sacred trust” within the limits prescribed by God. The Establishment sincerely believes that it alone has the keys to the sacred trust. Ignoring the preamble and defying the Establishment, politicians and the media harp the mantra of Sovereign Parliament.
The idea of Sovereign Parliament, which Pakistani barristers unwittingly borrowed from the United Kingdom, makes no sense even under secular law. In the age of rights and separation of powers, no state institution ought to be sovereign. Each institution must be checked and restrained from committing excesses. Does a sovereign Parliament have the lawful authority to commission genocide or torture?
Following dictates of the Establishment, Musharraf ignored the Parliament, even though his own party (the "King’s Party", as it were) enjoyed a solid majority in both Houses. To further discount the Parliament, Musharraf imported a naturalized American citizen to be the Prime Minister, rebuffing the native leaders of the King's Party. Despite suffering incessant indignities, the Parliament wasted no time in “re-electing” Army Chief Musharraf for a second Presidential term of five years starting in 2007.
The nation hoped that the Parliament would indeed become the center of power after the February 2008 democratic elections. The King’s Party was thoroughly defeated. The opposition parties of the two former prime ministers, whom the Establishment had forcibly removed from power in the previous decades, won in a big way and formed a Coalition government--a political union that pleased the nation. But contrary to all bets, the Parliament has come to be as irrelevant as it has been under the King's Party.
The Coalition chiefs, Asif Ali Zardari and Mian Nawaz Sharif, are not themselves members of the Parliament. Yet they - and not the Parliament - hold the ultimate power to make decisions. In matters relating to the restoration of judges, the National Assembly has been kept out of negotiations. Instead of debating the judges' issues openly on the floor of the National Assembly, the Coalition chiefs debated the issues in secret in a hotel in a foreign country. Even Pakistan's Prime Minister, presumably the strongest person under the Constitution, was left out of the deliberations. Just as the Prime Minster under the Musharraf regime was no more than a deferential pawn, so is the new Prime Minister under the Coalition government.The Supreme Court
Given that the decision-making power belongs neither to the Prime Minister and not to the Parliament, the question arises whether the sacked judges will be restored as promised. The answer, as usual, lies with the Chief and not with the tribe. Chief Zardari is determined to safeguard the Establishment judges who upheld the National Reconciliation Ordinance that manumitted Zardari from all criminal action. Even the other Coalition chief, who has been a fierce advocate for the independence of judiciary, has quietly agreed to let the Establishment judges stay on the Supreme Court.
As is customary, all roads lead toward the Establishment. If the sacked judges are not restored, the Supreme Court belongs exclusively to the Establishment. If, perchance, the sacked judges are reinstated, they will have to share the Court with the Establishment judges. A crowded but weakened Supreme Court, fighting with itself, is a godsend for the Establishment.Ali Khan is professor of law at Washburn University School of Law in Topeka, Kansas, and the author of the book, A Theory of Universal Democracy (2003). Many of his publications are available here.