The judicial controversy has taken a turn for the silly. What is now being called a constitutional crisis is no such thing, and is actually simply a lot of hysteria being created by political parties and media types who are looking to increase their ratings. The fact is that the Constitution has been followed to the letter, and there is no legal problem. The only problem that can be found is one of overly inflated egos and legal ignorance.
Let us examine the situation to find an explanation.
President Zardari consulted with Chief Justice Chaudhry about some appointments of Supreme Court Judges. The Chief Justice made some recommendations. The President announced his appointments, and the next thing I read headlines proclaiming that the Executive and the Judiciary are on a crash course because the government is not following the law!
I was shocked! Why is the government refusing to follow the law? So I opened up my Internet and clicked on the link to the Constitution so I could read exactly what this government is violating.
Article 177 of the Constitution reads as follows:
- 177. Appointment of Supreme Court Judges.
- (1) The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the President after consultation with the Chief Justice.
(2) A person shall not be appointed a Judge of the Supreme Court unless he is a citizen of Pakistan and-
- (a) has for a period of, or for periods aggregating, not less than five years been a judge of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or
- (b) has for a period of, or for periods aggregating not less than fifteen years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day).
Now that I have actually read the law, I became confused. Where is the violation? By all accounts, this has been followed to the letter by President Zardari and Chief Justice Chaudhry. So what is the issue?
Ah, yes. The issue is that the Chief Justice made some recommendations, and in the end the President appointed someone else. This might hurt the (apparently) very sensitive feelings of the Chief Justice, but they do not cause any constitutional crisis. The constitution is very clear that the President should take consultaiton with the Chief Justice. But the constitution nowhere says that the President will prostrate himself to the Chief Justice, or that the President will allow the Chief Justice to make appointments.
If the Chief Justice wants to appoint the Supreme Court Judges, he needs to get himself elected President. The Constitution is very clear about this, which I am certain that his Lordship knows quite well.
The Daily Times editorial today sums up the situation perfectly:
The attitudes on display have the tendency to promote opposition for the sake of opposition, which marred politics during the 1990s and finally paved the way for the military to intervene in the guise of a saviour. We need no saviours except those that have been elected by the people of Pakistan. We cannot afford a derailing of the system. Our security and economic condition does not allow another traumatic round of mid-term elections. Catering for petty political interests will not serve the purpose of democracy, which is threatened more by these kinds of dissension in society than by any one person or his notification, which is the subject of equally convincing opposing interpretations, depending on which side you are on.
My colleague wrote yesterday asking the Chief Justice not to sacrifice the country to appease his own ego, and even suggesting a course in which the CJ could help end the standoff and stabilize the country while even building his reputation as a national hero. Now, more than just the Chief Justice’s ego is at work since opposition and self-interested factions have seized the opportunity to exploit the situation for their own gain. The longer that this standoff continues, the longer certain self-interested forces will continue to exploit it in cynical attempts to seize greater power for themselves, ultimately wrecking the entire political system in the process.
The irony is that this will end not with greater democracy or a more independent court – but with the destruction of democracy and any chance of an independent judiciary.