Here are two articles on this topic by Cyril Almeida and Saleem Safi.
By Cyril Almeida
Lawyers tend to complicate things. Ask them to describe the colour red and soon you’ll be hearing about ‘vermilion’, ‘burnt sienna’ and ‘rose madder’.
It helps, though, to remember that lawyers are wrong half of the time (either the defendant is acquitted or the prosecution wins; one or the other side in a civil dispute is ultimately wrong on any given point).
But what truly makes a mess of things is when non-lawyers start pontificating on what the law is and how voluminous case law in complicated constitutional matters is to be interpreted.
There is, according to some lawyers and mostly non-lawyers, a clash between the judiciary and the executive and the cause is the executive’s wilful disobedience. The case made is simple: the Supreme Court has pronounced its judgment in the NRO case and Chief Justice Iftikhar Chaudhry has made some recommendations for judicial appointments; on both counts, the government/President Zardari has refused to accept the court’s directives and therefore the government/President Zardari is in violation of the law and is responsible for undermining the judiciary. Simple. Or simplistic?
You would think that to declare the executive in violation of the orders of the highest court of the land isn’t as simple as anybody who is nobody standing up and claiming it is. (Hint: it isn’t that simple; there’s a procedure that involves the Supreme Court writing to the executive and listing specific violations.)
Take the NRO judgment. If you want to know the court’s directives, start at para 171, p 249 and read until para 182, p 255 (the full judgment is available on the Supreme Court’s website). Don’t be intimidated: it’s just 1,200 words in a very readable typeface and with double line spacing.
Since the thrust of the argument that the executive stands in violation of the judgment deals with the cases against Zardari, let’s dispense with the other directives. Reopen the Swiss cases is the court’s demand, to which the government has responded that it can’t do so because of the president’s constitutional immunity. So now we’re at the stage of discovering whether Article 248 prohibits reopening the Swiss cases — something the Supreme Court will have to decide.
Of course, it’s important to step back from the legal thicket and recognise the implausibility of the government changing its stance. Essentially, the Supreme Court has directed the federal government to move against the head of state, who, as we all know, is the boss of the federal government because he rules the party that heads the federal government.
But what you or I may ‘know’ politically isn’t the same thing as the position legally. True, if the court and the government both refuse to alter course, a clash is inevitable. But there are plenty of other ifs involved. Ask yourself this, when was the last time you heard a ‘sure-shot’ prediction that came true? So let’s not get carried away — while there is plenty of reason to be apprehensive, let’s not beat our chests already. The executive has as yet not legally violated the NRO judgment.
The other accusation against the government is even more peculiar: that it is interfering in the process of judicial appointments and therefore undermining the independence of the judiciary. As it stands, Chief Justice Iftikhar Chaudhry has made some recommendations, the president has declined to make the appointments and given his reasons for doing so, and that’s it.
Zardari was perfectly entitled to turn down the recommendations by giving reasons — the real ‘clash’ will arise if CJ Iftikhar again makes the same recommendations and the presidency digs in its heels too. But we aren’t at that stage yet, and it’s far from certain what the chief justice and the president will do next.
What is perplexing though is the argument that it is the executive that is yet again triggering a confrontation.
Forget the position at law for a minute and ask yourself this: what is so great about Justice Ramday that he absolutely must be appointed an ad hoc justice of the Supreme Court? What great jurisprudence has the retired justice penned? Where are the intellectually nuanced judgments he has handed down? And more generally, can’t we get over the he’s-indispensable syndrome?
Musharraf was indispensable but he’s been dispensed with and here we are still, plodding along like we always have. Now Kayani and his ISI chief, Pasha, are being talked of as indispensable because the country is going through a ‘critical phase’. CJ Iftikhar is indispensable to the project of judicial independence. Zardari is indispensable, in his mind, to the current phase of the transition to democracy. Seems to me we could do without the truckload of ‘indispensables’ this country has been blessed with.
Similarly, what’s so great about the chief justice of the Lahore High Court, Khwaja Sharif, that he must at all costs stay in Punjab to oversee the judiciary there? And, if you think about it, it’s nothing short of remarkable that CJ Iftikhar apparently believes that Justice Saqib Nisar is qualified to be a justice of the Supreme Court — the highest court of the land — but not the chief justice of a provincial high court.
Back to the legal position and the great irony at hand. Back in the ’90s, the judiciary did much to limit the executive’s discretion in appointing judges by setting clear rules because then the executive had the upper hand. Today, it’s Zardari who is relying on that very same case law and it’s the independent judiciary that is trying to carve out exceptions, presumably to enhance its independence.
Obviously, Zardari hasn’t suddenly grown a conscience and decided he must do what the law says in every instance. Right now going by the book suits his purposes, so that’s why he’s doing it. Make what you will of that, but this much is clear: it would take an astonishing leap of logic to argue that the presidency categorically violated the law by turning down CJ Iftikhar’s initial recommendations.
Of course, things between Zardari and CJ Iftikhar are not hunky-dory and matters could yet spiral out of control. But what the lawyers and pundits frothing at the mouth need to understand is this: while the law and politics do overlap, they are not interchangeable. What ought to be politically isn’t the same thing as what is legally.