What is Mr. Asif Ali Zardari and the PPP up to in relation to the issue of the restoration of the Non-Functional/judges is the million dollar question? To this question, there are various answers given by the Anti-PPP and Pro-restoration groups. Some argue that Mr. Asif Ali Zardari, Mr. Pervez Musharraf and the Americans are part of a deal which involves the retention of Mr. Pervez Musharraf and as a consequence, the non-restoration of the Non-Functional/deposed judges. Others argue that, irrespective of what happens to Mr. Pervez Musharraf in the future, Mr. Asif Ali Zardari does not want to restore the Non-Functional/deposed judges at all because he thinks that the Non-Functional/deposed judges will strike down the National Reconciliation Ordinance, 2007, and deny him the benefits of his alleged ‘corrupt’ practices. The common element in both these answers is that it reduces this political problem i.e. of the restoration of the Non-Functional/deposed judges, to the personality of Mr. Asif Ali Zardari and his personal problems.

Without denying the relevance of the leadership of Mr. Asif Ali Zardari in understanding this political problem, I propose to argue in this article that the issue of the restoration of the Non-Functional judges vis-à-vis the PPP and Mr. Asif Ali Zardari is a political, and not a personal, problem, and the actions of Mr. Asif Ali Zardari and the PPP in relation to this issue needs to be understood within the context of the PPP as a ruling political party and the post February 18^th, 2008, emergent political process, and not in terms of the personality, personal views and self- interest of Mr. Asif Ali Zardari.

Mr. Pervez Musharraf constructed a post-November 3^rd, 2007, ‘legal’ framework whose purpose was, Firstly, to legally secure his position as a constitutional president. Secondly, as a consequence, to make it practically impossible to restore the Non-Functional judges, and, thirdly, to protect and indemnify his post-November 2^nd, 2007, un-constitutional actions. The three mechanisms adopted to achieve these objectives were as follows. Firstly, by installing his own Superior judiciary. Secondly, the Supreme Court under the PCO, headed by the Chief Justice, Abdul Hameed Dogar, under PCO, in the ‘Tika Iqbal Muhammad Khan case’ validated his post-November 2^nd, 2007, actions and orders. Thirdly, as a result of the aforementioned, through the Constitution (Amendment and Second Amendment) Orders, 2007, constitutional amendments were ‘inserted’ in the Constitution to secure his presidency [Article 44 was amended], to make it practically impossible to restore the Non-Functional judges [Article 270C was amended] and to protect and indemnify his post-November 2^nd, 2007, actions and orders [a new Article 270AAA was inserted]. The political strategy of Mr. Pervez Musharraf was clear. He knew that a new legal game was about to begin in which the Constitution, Judgments of the Superior Courts and the Superior Courts will be key strategic tools. Therefore, like any good dictator, his political strategy was to, in advance, manipulate and to rig all three of these strategic tools. But he also knew that a new political player i.e. the elected representatives of the people, are entering this new legal game. Therefore, as an incentive and gift to his alleged new political partners i.e. PPP, the National Reconciliation Ordinance, 2007, was also given protection through his aforementioned three strategic tools. The Supreme Court under PCO in the ‘Tika Iqbal Muhammad Khan Case’ upheld the enforceability of, and his constitution amendment [new Article 270AAA] protected, the National Reconciliation Ordinance, 2007 [‘N.R.O., 2007’]. It looked like a marriage made in heaven.

But then came the romantic love affair of the Murree-Bhurban declaration of March 9^th, 2008. As examined in detail in one of my earlier Articles, the Murree-Bhurban declaration recognized that the restoration of the Non-Functional judges was a political, and not a legal, problem. There were four foundations of the Murree-Bhurban declaration. Firstly, it accepted that the Non-Functional judges [and not the judiciary] will be restored to their November 2^nd, 2007, position. In other words, it was silent about the PCO judiciary. Secondly, it recognized that there were no legal or constitutional obstacles to the restoration of the Non-Functional judges because it refused to recognize the legality of the abovementioned constitutional amendments [which included the constitutional protection of the N.R.O., 2007, also] made by Mr. Pervez Musharraf, the legality of the judgment in the ‘Tika Iqbal Muhmammad Khan Case’ and the PCO judiciary as the sole judiciary. In short, the PPP refused to recognize the legality of the post-November 2^nd, 2007, actions and orders of Mr. Pervez Musharraf. Thirdly, a political decision was made to take on a political conflict with Mr. Pervez Musharraf. Fourthly, in terms of tactics, the methodology of a parliamentary resolution and the time frame of 30 days was to be adopted. To further shatter the broken heart of Mr. Pervez Musharraf, on the first day of the session of National Assembly, one of the senior members of the PPP made a statement on the floor of the house that they do not recognize the post-November 2^nd, 2007, constitutional amendments made by Mr. Pervez Musharraf [which included the constitutional protection of the N.R.O., 2007, also]. Did the Murree-Bhurban declaration, and subsequent events, expose the dangers of arranged marriages or did it expose the PPP as a treacherous lover? Or did it simply emphasize the fact that an understanding of the politics of the PPP as a political party could not be reduced simply to the N.R.O., 2007.

But the Non-Functional judges were not restored through a parliamentary resolution within 30 or even 60 days. Did this signify the end of the romantic love affair of the Murree-Bhurban declaration and the revival of the alleged arranged marriage with Mr. Pervez Musharraf? Sadly, Politics, like life, is hardly a boring and repetitive affair. Therefore, another bomb shell in the form of the Constitution (Eighteen Amendment) Bill, 2008, was dropped by the PPP.

In relation to Mr. Pervez Musharraf, it contains the mother of all rejected marriage proposals, as it refuses to recognize the legality of the post-November 2^nd, 2007, actions and orders of Mr. Pervez Musharraf. This is because the Constitution (Eighteen Amendment) Bill, 2008, refuses to recognize the post-November 3^rd, 2007, constitutional amendments made by Mr. Pervez Musharraf, which amendments included a new Article 270AAA that gave blanket protection, immunity and indemnity to the post-November 2^nd, 2007, actions and orders. But wasn’t PPP inflicting a mortal injury to itself because the same new Article 270AAA also provided constitutional protection to the N.R.O., 2007? Were these the actions of an immature political party? Or did it simply again emphasize the fact that an understanding of the politics of the PPP as a political party could not be simply reduced to the National Reconciliation Ordinance, 2007. The Constitution (Eighteen Amendment) Bill, 2008 does, of course, have it’s own proposed new Article 270AAA which does not give protection to the P.C.O., 2007, and the Proclamation of Emergency, 2007 [i.e. the legal crutches of the last coup, 2007], but tries to give protection to the N.R.O., 2007. But that is only, if and when, this Constitution (Eighteen Amendment) Bill, 2008, is passed by parliament. Therefore, the Constitution (Eighteen Amendment) Bill, 2008, does imply a continuity with the romantic love affair of the Murree-Bhurban Declaration because, Firstly, it refuses to recognize the legality of the post-November 2^nd, 2007, actions and orders of Mr. Pervez Musharraf, and Secondly, the political decision to take on a political conflict with Mr. Pervez Musharrraf is intact and the Constitution (Eighteen Amendment) Bill, 2008, implies a declaration of war without initiating a imminent political conflict. This is the first time in Pakistan’s Constitutional history that a civilian government has refused to recognize the constitutional amendments made by a dictator.

In relation to the issue of the judiciary and the restoration of the Non-Functional judges, the Constitution (Eighteen Amendment) Bill, 2008, contains a plethora of constitutional amendments. The constitutional amendments proposes to restore the Non-Functional judges to the November 2^nd, 2007, position and seniority [proposed new Article 270CC]. But this restoration of the Non-Functional judges is now conditional on the following elements. Firstly, it impliedly recognizes the legality of the current PCO judges [proposed new Article 270CC] and as a consequence, proposes to control the Non-Functional judges through the greater numbers of the status quo oriented judges under the PCO. Secondly, it proposes an intrusive executive presence in the hiring of the Superior Judiciary [proposed new Articles 177A and 193A] and monopolistic executive control of the firing of the Superior Judiciary [proposed new Article 209]. Thirdly, it creates a limited, ineffective and mere mouth piece, fundamental rights jurisdiction of the Supreme Court [proposed amendment in Article 184(3)]. Fourthly, the present and future Chief Justices of the Superior Courts are proposed to be controlled through restricted tenures [proposed Articles 179 and 195]. Therefore, the Constitution (Eighteen Amendment) Bill, 2008, does imply a continuity with the romantic love affair of the Murree-Bhurban Declaration because it proposes to restore the Non-Functional judges to the November 2^nd, 2007, position and seniority but this romantic love affair now is conditional and a one-sided love affair. One does not need to study constitutional law or judicial history to understand the implications of the aforementioned amendments. The PPP wants to constitutionally create an oxymoron Superior judiciary i.e. a sub-ordinate Superior Judiciary, or a judiciary independent of everyone else except the executive. Mr. Asif Ali Zardari and the PPP’s claim that they do not want power but rather want to change systems of power is proved correct by this Constitution (Eighteen Amendment) Bill, 2008, because the aforementioned amendments does want to change the structure of an independent judiciary as envisaged under the original 1973, Constitution, to a dependent judiciary as envisaged under this Constitution (Eighteen Amendment) Bill, 2008.

Why has the romantic love affair of the Murree-Bhurban Declaration become converted into such a conditional love affair or to a proposed one-sided pre-nuptial agreement? Is the PPP simply acting ‘evil’ when it comes to the judiciary?. May be, a rational political explanation of the PPP to the Constitution (Eighteen Amendment) Bill, 2008, is as follows. Firstly, the Constitution (Eighteen Amendment) Bill, 2008, is primarily based on the PPP’s reading of Pakistani judicial history. In the PPP’s mutilated and selective judicial memory, the judiciary, at best, is a useless bourgeois and rightwing institution, and, at worst, the judiciary is an institution through which politicians are subdued and harassed and the political and democratic process is disrupted and destroyed. In this collective unconscious of the PPP, judicial dissent on March 9^th, 2007, and on November 3^rd, 2007, are seen merely as tactical actions and this judicial dissent does not imply a strategic change in this allegedly anti-democratic institution. Therefore, no independent judiciary can be destroyed by the Constitution (Eighteen Amendment) Bill, 2008, because their allegedly never was, nor is, an independent judiciary. Secondly, after the romantic love affair of the Murree-Bhurban Declaration, a new relationship has intervened in the life of the PPP i.e. the reality of power politics between institutions and the problem of governance. The PPP as a ruling political party recognizes the potential constitutional structural conflict between a consolidating executive and legislature and an emerging independent judiciary [remember the conflicts between Benazir Bhutto and Sajjad Ali Shah and between Nawaz Shariff and Sajjad Ali Shah]. Therefore, why not just destroy this independent power institution i.e. judicial institution, and consequently, avoid any structural conflicts. Additionally, the restoration of the Non-Functional judges will also give rise to the imminent constitutional structural conflict with Mr. Pervez Musharraf and, maybe, also with the PCO judges, the political fallout of which may allegedly include the dismantling of the entire democratic system. Supposedly, a restoration of the Non-Functional judges through a Constitutional Amendment will prevent both a conflict with Mr. Pervez Musharraf and the PCO judges because a constitutional amendment can neither be challenged by Mr. Pervez Musharraf nor by the Supreme Court.

How should one judge the abovementioned political explanation? Should it be dismissed as a bad horror novel or should it be seen as a serious political explanation? Regardless of the moral and constitutional worth of the Constitution (Eighteen Amendment) Bill, 2008, I offer only the following political observations. Firstly, after March 9^th, 2007, and November 3^rd, 2007, the genie and ‘disease’ of the idea of an independent judiciary which has inflicted and infested the historicity and mindset of the judges, lawyers and the common man, cannot be reversed. The ‘disease’ of independence is here to stay. Therefore, the Constitution (Eighteen Amendment) Bill, 2008, is an attempt to reverse history. Historical events and realities need to be accepted [even if undesirable] and not fought against. Secondly, no constitutional modern state has been able to avoid structural constitutional conflicts with the judiciary because they arise out of inbuilt structural constitutional contradictions. The judicial history of modern constitutional states tells us that constitutional conflicts with the judiciary can only be managed until these conflicts are resolved historically by developing consistent constitutional relationships between the various organs of the state. The Constitution (Eighteen Amendment) Bill, 2008, cannot short circuit and bypass history. Thirdly, the PPP does not have a two thirds majority needed to pass these amendments. Oppositional members of parliament are unlikely to support amendments which will help the executive control the judiciary because they recognize the importance of independent judicial power against a repressive Pakistani state. Fourthly, a constitutional state with fundamental rights, without an independent judiciary to enforce those fundamental rights, is like having a democracy without political parties. Why not just get rid of the pretence that we are a constitutional state with fundamental rights. Fifthly, will the PPP want such an executive dominated/dependent judiciary when it is in opposition and appealing for either bail in a criminal case or contesting a false criminal charge?. Sixthly, isn’t an imminent structural conflict with Mr. Pervez Musharraf unavoidable because he is like an irritant illegal trespasser always looking to dislodge the rightful repository of public power. Why not fight this imminent political conflict with a recently tested anti-Musharraf judiciary on your side?. Seventhly, if there is an inevitable and unavoidable choice between a political conflict with Nawaz Shariff because of the non-restoration of the Non-Functional judges and between a political conflict with Mr. Pervez Musharraf or the PCO judges, shouldn’t the PPP avoid the former, rather the latter, conflict. Surely, the guarantee to any kind of political stability in Pakistan is in the continuation of this contradictory and incompatible coalition between the PPP and PML (N).

Regardless of the above intellectual diatribe, Mr. Farooq Naek, the intellectual brain behind these amendments, our legal czar and an experienced parliamentarian, must know that the biggest Constitutional Amendment Act passed in the history of our Pakistani parliament was the Constitution (Eight Amendment) Act, 1985, which contained only 19 amendments. The biggest Amendment Act passed by Shaheed Zulfiqar Ali Bhutto was the Constitution (Fifth Amendment) Act, 1976, which contained only 18 amendments [By the way, Bhutto had a two thirds majority in parliament]. The Constitution (Eighteen Amendment) Bill, 2008, contains 79 amendments. Is Mr Naek trying to create history? May be, world constitutional history?. Surely, if he realistically wanted to pass these amendments, a more intelligent strategy would have been to have many Constitutional Bills with fewer amendments to be passed in a piece meal manner. For example, like the Constitution (Thirteen Amendment) Act, 1997, passed by the Nawaz Shariff government, contained only 4 amendments, which reversed and corrected the political and power imbalances between the Prime Minister and President. But without having access to, or insight into, the political decision making of the PPP, one can only engage in some kind of analytical speculation. The Constitution (Eighteen Amendment) Bill, 2008, really looks like a beautiful shell. Beautiful from the outside but empty inside. At worst, it is a fantasy and, at best, a maximalist position on which the PPP is willing to compromise e.g. it may be willing to go back to the tactical solution of the good old romantic days of the Murree-Bhurban declaration [especially now after the passage of the Finance Bill, 2008, which accepts the physical presence of the Supreme Court judges under the PCO] and then later on also try to pass, bits and pieces, of the judicially oriented amendments of the Constitution (Eighteen Amendment) Bill, 2008. Or may be, such a Constitution (Eighteen Amendment) Bill, 2008, is merely a political strategy to delay a solution to these problems so that the PPP can consolidate its power before taking on these difficult political problems. Sadly, the issue of the restoration of the Non-Functional judges is a major cause of persistent in-stability in Pakistan and in the fractured and transitional democratic politics of Pakistan, political instability and power consolidation are dangerously in-compatible notions.

But let us end this article with the assurance that the romantic journey from Murree to the constitutional package have shown us that irrespective of the fights within our democratic constitutional family [i.e. between the PPP and PML(N) and the judiciary], there is at least constitutional consensus among all it’s members about the source of our common political and constitutional woes i.e. the repressive institutionalization of un-constitutionalism under a system of military dictatorship in Pakistan.