We have been writing on this blog for some time that the greatest threat to democracy is the political polarisation and gamesmanship being played by political parties and interests across the spectrum. We, as a nation, have seen how small disagreements between government officials and branches are blown out of proportion by political actors and media types, and each and every week there is declared a new threat to the country. The next week, after the artificial hysteria dies down, we see that there was never any threat, but only the regular discussions, disagreements, and compromises that make a democratic system work.
Dr Hasan-Askari Rizvi, a respected political and defense analyst, sees the same problem – political posturing on every small issue being used as a piece in a political chess game. But democracy is not a game of chess, and one wrong move can upset not just a chess board, but the entire democracy. And if this happens, all the pieces will fall – including those banging their fists on the board.
The differences between the Supreme Court and the federal government on judicial appointments have been resolved by the conciliatory moves of the prime minister. The federal government stepped back from the tough position adopted by the presidency when it made two judicial appointments to the Supreme Court and the Lahore High Court on February 13 in disregard of the recommendation of the chief justice. The Supreme Court suspended these appointments by a court order.
The prime minister’s decision to attend the chief justice’s dinner on February 16 and their meeting the next day resolved the issue of appointments of the judges to the satisfaction of the chief justice. This averted a major clash between the Supreme Court and the federal government, especially the presidency.
The executive-judiciary conflict showed that different political interests, political parties and lawyers approached the issue from a purely partisan perspective. There was a clear polarisation among the lawyers who were unable to present a shared position on this issue. The polarisation in the political class and the lawyers was on the lines of being pro- and anti-PPP. The latter projected themselves as pro-judiciary and claimed to protect its independence. However, their anger was targeted at the PPP, especially President Zardari. Most of them viewed this as an opportunity to dislodge Zardari from the presidency and remove the PPP government. They hoped that the Supreme Court would give a ruling against Zardari, paving the way for his removal. The pro-PPP political circles criticised the chief justice and supported the appointments made by Zardari.
However, a number of leaders of the lawyers’ movement (2007-2009) and others sounded a note of caution on pro- and anti-PPP emotional outbursts and warned of the dangerous consequences of confrontation between the judiciary and the executive. They advised both sides and the political activists to show restraint and settle the matter strictly in accordance with the constitution and law.
The MQM and the ANP adopted non-partisan dispositions, advising the federal government to deal with the issue with caution so that democracy is not undermined. The PML-N launched a major political onslaught on the PPP and especially against Asif Zardari. Nawaz Sharif was extremely hard hitting in his press conference, declaring Zardari as a “threat” to democracy, reviving the memories of the earlier phase of democracy (1988-1999) when the PML and the PPP accused each other of being a security threat.
This was not the first policy fiasco for the federal government. It should critically examine its decision-making system, especially the capacity of its main advisors to deal with difficult and contentious issues. It needs to adopt a mature, stable and least controversial approach and take into account all possible outcomes of its decisions rather than making policies on the basis of skewed and defective advice that causes embarrassment subsequently.
The legal advisors to the presidency should have known that the Supreme Court had the power to suspend the president’s notification. Any person with some understanding of the judiciary’s efforts to expand its domain of authority would have known that the Supreme Court would exercise this power.
Pakistan witnessed dangerously sharp polarisation in the political class, including the lawyers. This may help the politically active people to pursue their individual partisan agendas but it divides and weakens the political forces. This encourages the judiciary and the military to assert their role against the political and democratic institutions because both know that the political forces are so divided that they cannot take a unified position; rather the judiciary or the military can find support among the political circles for their policy of building pressure on the civilian government.
The high degree of polarisation in the political forces weakens the efforts to sustain democracy. The political forces need to recognise that in their bid to undercut each other, they adversely affect their overall prospects. Weak and divided political forces cannot strengthen democracy. Nawaz Sharif’s statements in the press conferences in Islamabad and in Ghotki amounted to a declaration of war on Zardari and the PPP federal government. These statements created the impression that Nawaz Sharif and his senior colleagues in the PML-N were convinced that the judiciary would knock out the federal government or, at least, Zardari. This has not happened and the PML-N will have to deal with the PPP leadership. Even if Zardari or the federal government is knocked out, what is the guarantee that power will be passed on to the PML-N?
The executive-judiciary crisis has another dimension with implications for the future of democracy in Pakistan. This can also be viewed as an attempt by a non-elected state institution, i.e. the judiciary, to restrict the role of the elected state institutions, the executive and parliament, in its affairs.
The military was the first non-elected state institution to neutralise the edge of elected federal governments and parliament. The military resents any active role of the civilian government in its internal organisational and service affairs and disbursement of funds. Parliament has no control over what the military earns through its huge business and commercial activities. The military top brass make the decisive input to major areas of security and foreign policy and often feel unhappy when various parliamentary committees, especially the Public Accounts Committee, become inquisitive about the military’s financial affairs.
Now, the superior judiciary has made it clear that the elected executive and parliament has got nothing to do with the appointment of judges. For all practical purposes, the appointment of judges to superior courts has become the prerogative of the chief justice. The superior judiciary, like the military, has its own accountability process where the elected institutions do not have any role.
The key appointments to the superior judiciary cannot be left to one person, be it the chief justice or the president. Perhaps there is no democratic country where the top judicial appointments are controlled by the chief justice and the executive is to issue the appointment order for whosoever has been approved by the chief justice.
There is a need to bring a constitutional amendment to reverse this trend of negation of elected institutions by non-elected institutions and the appointment of the judges of the superior courts should be through a broad-based consultative process with no one exercising veto power. The elected president/executive cannot be reduced to a mere signing machine. There are two options available for consideration. Either adopt the method of appointment of judges suggested in the Charter of Democracy (CoD) with some modifications or the American system that gives a relatively free hand to the president in nominating the judges of the Supreme Court. However, these nominations become effective only after confirmation by the upper house of the Congress after a thorough scrutiny and public hearing by the relevant Senate committee.
In a democratic system, the primacy of the elected institutions and leaders should be respected. Non-elected institutions can enjoy autonomy as given in the constitution but these institutions should not stretch their autonomy to become ‘independent’ of the elected institutions. Any attempt by a state institution to overwhelm the other under any pretext can cause a collapse of the democratic process.
