Formation of a Constitutional Court
By Syed Kamran Hashmi
Westfield, IN
Mian Nawaz Sharif (MNS) was ecstatic in 1997 over his overwhelming victory in the general elections. He had ultimately seized a two-thirds majority in the national assembly for the first time and had been sworn in as one of the most powerful prime ministers of Pakistan.
In the first few weeks, his priority was to decontaminate the constitution of its Article 58(2)(b) that had engulfed every political government since its inception. Accordingly, he gathered the support of all the political parties to pass the 14th Constitutional Amendment and bring it back to its original form of 1973. His objective was to bring long-term political stability to the country and to ensure the continuation of the democratic process. MNS had reckoned that the constitutional amendment alone would be sufficient to avoid any future political turmoil in the country since it would put a stop to conspiracies in the presidential palace. Obviously, he had miscalculated the convoluted power structure of Pakistani politics and would pay a big price for his misjudgment.
As we observed in just a few months, MNS clashed with the then Chief Justice of Pakistan (CJP) Sajjad Ali Shah over a trivial administrative issue, unable to detect the echoes of an impending crisis. Hence, the dispute between the judiciary and parliament continued to intensify and climaxed when the Supreme Court was besieged and attacked by a mob during a controversial hearing. It ended abruptly with the involuntary departure of the CJP, along with the rock bottom approval rating of the prime minister. Although MNS was apparently triumphant and had seized another victory, he had lost his credibility in the conflict. He was also considered arrogant and implacable in the eyes of the public.
Therefore when General (Retd) Pervez Musharraf overthrew the prime minister in a coup d’état after the Kargil conflict, he did not encounter any meaningful political resistance. Additionally, the Supreme Court, enabling him, approved his extra-constitutional actions to relish in the power corridors for many years. Musharraf essentially had no political opposition till he repeated the mistake of his predecessor.
In March of 2007, like MNS, Musharraf also entangled himself in a judicial conflict, and watched his approval ratings plunge in a matter of weeks. His support in the public vanished, his political allies became his adversaries, and soon he was left all alone politically only to flee the country within a few months.
The judicial crisis that commenced with the suspension of the CJP, Iftikhar Muhammad Chaudhry in 2007, finally ended with the restoration of the CJP after two years of relentless struggle, culminating in the long march of 2009. It was led by no other than MNS, who emerged as a transformed politician this time, determined to protect the sanctity of the courts and to stabilize the democratic system. After the restoration of the judiciary, MNS laudably stayed away from conspiring against the PPP-led coalition government to end prematurely their five-year term and even paid a political price for his conviction. Once again though, he could not refrain from engaging the superior judiciary in administrative and political matters. Notwithstanding the instability caused by the judicial-political conflict and its economic impact, he kept on pounding the government with his petitions in the Supreme Court, one after another, from ‘memogate’ to ‘contemptgate’ to ‘ineligibilitygate’.
We believe that the approach to settle political scores in the courts is not only a bad precedent but is also counter-productive for both the politicians and the courts. On the one hand, it scandalizes the courts because the judicial decisions on political matters invariably evoke a certain level of animosity in certain elements of society. On the other hand, it also destabilizes the political process. Therefore, in the current judicial dispute of 2012 — the third one in 15 years — our dilemma is not limited to coming out of the current crisis, but is also centered on finding permanent solutions to an ongoing problem. We have now observed the vulnerability of both political and military governments; we have stood by the politicians; we have supported the judges and we have idealized the generals but our predicament remains unresolved and our vision of constitutional harmony has never been translated into reality. In these circumstances, we believe it is time for us to take the bull by the horns and instead of exploiting the superior judiciary for political gains, we should attempt to keep the Supreme Court out of the mundane issues of politics. It is time for us to decide in favor of the 21st constitutional amendment for the formation of a constitutional court where most political issues can be settled. We also believe it is time to keep all administrative issues separate from constitutional uncertainties and to draw a clear line between them. It is also time for MNS to step forward and demonstrate the same level of conviction to stabilize the system as he did in 1997, for the14th Constitutional Amendment.
(The writer is a US-based freelance columnist and can be reached at skamranhashmi@gmail.com )
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