Much is at stake for Pakistan

The results of the February 18 election in Pakistan created a fresh wave of euphoria in the country, as it implied Pakistan's imminent transition to democracy. The new government, which comprises a coalition between the Pakistan Peoples Party (PPP) and the Pakistan Muslim League-Nawaz (PML-N), is faced with a number of daunting challenges including spiralling inflation, rising terrorism and a severe energy shortage. Adding to this list of challenges is the issue of the resolution of the judicial crisis, which has engulfed the country since March 2007.

In the run-up to the elections, the PML-N made tall claims with regard to this issue, and used the restoration of the judiciary as the primary sales pitch for its election campaign. The issue was also prioritised in the Murree Declaration, which formalised the framework of the governing coalition.

According to this Declaration, the two parties agreed that the deposed judges would be restored to their positions prior to November 3, 2007 within 30 days of the formation of the federal government. Thus, the deadline for the restoration of the judiciary was decided to be April 30, 2008. Despite this agreement and the set deadline, Asif Ali Zardari, leader of the PPP, and Nawaz Sharif, leader of the PML-N, differed over the pace and the means through which the restoration should be implemented.

Zardari has talked about the independence of the judiciary, while Sharif has urged the restoration of the deposed judges. More specifically, the PML-N urged the removal of all those judges who took oath under the Provisional Constitutional Order or PCO (which replaced the suspended constitution following the November 3 emergency imposed by President Pervez Musharraf).

In contrast, the PPP wants to retain those judges, and seeks to restore the deposed judges too. Moreover, while Zardari supported a five-year tenure of the Supreme Court Chief Justice, Sharif urged the implementation of the Murree Declaration in letter and spirit on the grounds that such an arrangement would shorten Justice Iftikhar Mohammad Chaudhry's stay as the Chief Justice.

Another contentious issue pertained to the "minus x" formula recommended by the PPP, whereby the judiciary's restoration would be subject to the exclusion of certain judges from the new judicial set-up. Sharif adopted a firm stance on this point, making it clear that such a formula was not acceptable to the PML-N.

While both parties denied a deadlock on the issue of the restoration of the judiciary, it was clear that Zardari did not share Sharif's enthusiasm for restoring the deposed judges - at least not all of them.

Persisting differences

Following the initial rounds of talks, the PML-N announced that if differences persist between PPP and the PML-N over the restoration of the judiciary, the PML-N members would quit its ministerial positions, while still continuing to extend support to the PPP at the centre in order to allow Pakistan to make a successful transition to democracy.

The 30-day deadline set by the Murree Declaration arrived without the restoration of the deposed judiciary, leaving Sharif in a rather tight corner, as reneging on a promise that served as the fulcrum of his election campaign would have damaged his political credibility significantly. It was only after several rounds of talks that a decision was reached.

On May 2 Sharif announced that the governing coalition had decided that the ousted judges would be restored to their positions prior to November 3, 2007. However, he also announced that the PML-N had agreed to "compromise" on the issue of the judges who took oath under the PCO, as it had been decided that these judges would not be removed, hence increasing the number of judges of the Supreme Court.

This reluctance on the part of Zardari to remove the judges who took oath under the PCO, in conjunction with the "minus x" formula proposed by the PPP have exposed significant insecurities felt by the leader of the coalition government in Pakistan - the PPP.

The PML-N's position is easily explainable through history, as Musharraf toppled Sharif's government in a bloodless coup in 1999 on the grounds of corruption. Sharif has been calling for Musharraf's impeachment since the elections, but is aware that this may not be possible as the PML-N is part of a coalition set up where its coalition partner, the PPP, is not as strident as the PML-N in opposing the president. Also, the PML-N is aware of the US support that Musharraf enjoys.

Recognising these realities, the PML-N seems to be taking an alternative route. Political calculations have led the PML-N to conclude that the restoration of the judiciary would result in Musharraf's actions being questioned in the Supreme Court, hence leading to his exit from the government and political scene in Pakistan. On the other hand, the primary reason behind the rather muted stance of the PPP is the National Reconciliation Ordinance (NRO) which was the brainchild of none other than the president himself.

However, the question that comes to mind is how the issue of the NRO ties in with the issue of the restoration of the judiciary. The PPP has been emphasising the independence of the judiciary as opposed to the restoration of the deposed judges. The NRO has an important part to play in this political drama, as the Ordinance was engineered by the judges who took oath under the PCO. As a result, if these judges were removed and replaced by those wronged by Musharraf, it is likely that they will question the validity of the NRO in the Supreme Court.

It is for the same reason that the PPP recommended a "minus x" formula, as that would ensure that those harmful to the party's interests would be left out of the judicial set up, hence assigning the judiciary the lead role vis-Ã -vis partisan politics in the country. Nevertheless, the PML-N did not compromise on being exclusive in terms of restoring the deposed judges, but it did have to soften its stance on the judges who took oath under the PCO.

The new deadline for the restoration of the deposed judges has been extended till tomorrow. One possibility is that in order to insulate itself from judicial pressure, the PPP will approach the judiciary (if it has not done so already) for a "deal" which ensures its political survival.

However, if the deposed judges are restored by tomorrow it will be difficult to predict the extent to which the Supreme Court will become hostage to party politics in Pakistan. The following weeks will be essential in determining the future strength of Pakistan's institutions, particularly the Supreme Court.

-Copyright: OpinionAsia, 2006 - 2008. www.opinionasia.org

Barkha Shah is a UAE-based commentator on Pakistani affairs. She has an MPhil (Development Studies) from the University of Cambridge.