I wonder if Nawaz Sharif has ever considered a career as a captain of a submarine: the cold, ruthless manner in which he torpedoed the constitutional reforms package last week showed that he has a great future behind a periscope.
However, his shifty manner and his party’s guilt-stricken expressions after the event appeared to show the realisation that rather than an enemy vessel, they had actually launched their torpedoes at a hospital ship. Luckily for all of us, the constitutional reform package has survived the Sharif ambush, and will hopefully soon be signed into law as the 18th Amendment.
Raza Rabbani’s committee has performed a Herculean task by cleaning out the Augean stables that the 1973 constitution had become with an endless series of expedient amendments tacked on by a succession of military dictators to enable them to rule without legal challenge. Perhaps the most important aspect of the proposed 18th Amendment is the freeing of the provinces from the straitjacket imposed by Islamabad through the concurrent list.
Another crucial achievement is to clarify and rationalise the division of powers between the president, the prime minister and parliament. Over the years, the boundaries between their jurisdictions had become fuzzy due to the tendency of dictators to arrogate all executive and legislative powers to themselves.
However, if the office of the president has been restored to its original, symbolic role that of the chief justice has been further strengthened. As a result of Nawaz Sharif’s demand, the chief justice will now appoint a retired judge as the seventh member of the judicial commission that would allow him greater control. Indeed, most people are of the view that this is why Nawaz Sharif dug in his heels in the first place.
During the lawyers’ movement two years ago, most of those leading it, as well as their naïve supporters, believed they were fighting for an independent judiciary. What they have got is an independent-minded judge. Unfortunately, while the authority of the executive and the legislature has now been defined in the draft 18th Amendment, the judiciary seems free to act in ways not envisaged by the original framers of the constitution, nor practised in most democracies.
Take the matter of the privatisation of the Pakistan Steel Mills as an example. Four years ago, the loss-making white elephant was on the verge of privatisation when the Supreme Court cancelled the deal, accusing the Musharraf’s government of “acting with indecent haste” in the matter. Four years and billions of rupees in state subsidies later, there are now no takers for the country’s biggest state-owned enterprise because potential buyers fear yet another judicial intervention. Or consider the suo motu notice of high sugar prices last year.
By issuing orders to the government to fix the price at Rs40 a kilo, the court ensured that the commodity would be hoarded, and then sold at higher prices on the black market. The ruling ignored the fact that sugar prices were going up all over the world. Ultimately, it was the consumer who suffered, and sugar mill owners — with the Sharif industrial empire leading the charge — made vast profits. Accountability, anybody?
Suo motu powers are given to the judiciary to allow it to intervene in important matters where the citizens are not being heeded by the executive. Thus, when their lordships exercised these powers on behalf of citizens ‘disappeared’ by the Musharraf government, they were clearly acting in the public interest.
In India, the Supreme Court has acted in environmental matters where the government was dragging its feet. For instance, it decreed that old, smoky vehicles that were polluting Delhi’s air would have to be taken off the roads after a certain date. This again was in the public interest.
However, suo motu powers are meant to be used judiciously, and not to trip up the executive at every turn. The reality is that in all democracies, there is often tension between the judiciary and the administration. Governments tend to take short cuts to achieve policy (and occasionally personal) objectives, often trampling on the rights of citizens. Courts hearing cases of abuse of executive authority can and do set matters right, much to the annoyance of the government.
These checks and balances are at the heart of constitutions. Now, thanks to the 18th Amendment, we will have some of these restored. In Pakistan, we traditionally had two power centres: the army and the political parties. Add another two to this short list: the judiciary and the private TV channels. So while the executive has to contend with a very independent judiciary and a blood-crazed media, there is no check at all on either the army or the higher judiciary.
In all democracies, parliament is supreme as its members have been elected, while all other state actors are appointed. In Pakistan, however, the judiciary appears to have wrested supremacy away from the representatives of the people. While Nawaz Sharif hopes to benefit from the high degree of judicial activism we are currently witnessing, he should remember that it can be a double-edged sword. Unless, of course, he knows something we don’t.
Thus far, Nawaz Sharif has been given a very easy ride by the media. But after his attempt to derail the constitutional package, he came under scrutiny for the first time, and stood revealed as a shifty politician with no respect for consensus or constitutional reform. No doubt his double-dealing will be forgotten, as have so many of his many other transgressions. But at least both the Sharif brothers have been exposed for what they really are.
However, this is a time to celebrate, and to congratulate Raza Rabbani and his colleagues on the committee for a job well done. And while these constitutional changes will not make an immediate difference to our lives, they will make it possible for the country to move forward and it will also discourage future Bonapartes from grabbing power.
Ultimately, however, the only real check against military coups is good governance. As long as elected governments are unable to deliver, they will continue to be under threat from GHQ.
Mohammed Abbasi 