IT is well understood that many politicians do not do what they say they will, and they will not say what they really intend to do. No wonder then that even some of the more discerning observers are unable to fathom Asif Ali Zardari’s mind.

Delay in making his choices known (achieved through interminable consultations, negotiations and resort to consideration by committees) to tire out the other side and soften its bargaining position appears to be one of his favourite tactics.

The PPP’s position on the reinstatement of judges, removed under emergency rule on Nov 3, 2007, merits scrutiny. At one time, Ms Bhutto stated that while her party stood for the judiciary’s independence, it was

not interested in the career of individual judges.

Then, a week or two before her death, she declared that the deposed judges must be reinstated. Mr Zardari is reluctant to do what she wanted. He and his assistants have been wrapping the issue in layers of reservations and conditions.

The facts of the matter are simple. The army chief’s imposition of emergency rule was illegal. It follows necessarily that all of his moves under the authority of this rule, including the dismissal of certain judges and the appointment of others to replace them, were also illegal.

Mr Zardari and Mr Nawaz Sharif made a covenant with each other and with the nation at Bhurban to the effect that the coalition government their two parties were setting up would reinstate the deposed judges within 30 days of its formation, that is, before April 30.

It was understood that this would be accomplished through a resolution of the National Assembly, requiring the reinstatement, followed immediately by an executive order to implement the Assembly’s resolution and, if necessary, an appropriate constitutional amendment.

The deadline of April 30 has come and gone and no steps to reinstate the judges have been taken. Scores of hours of negotiation between Mr Zardari and Mr Nawaz Sharif, and more of the same between their teams, were used up professedly to settle the ‘modalities’ of reinstating them. These modalities have still not been finalised.

The drafting of a resolution to be moved in the National Assembly should not have taken more than a few minutes. A statement with one ‘whereas’ and one ‘be it now therefore resolved’ plus a couple of subordinate clauses declaring that the army chief’s imposition of emergency rule and all of his consequent actions, including the removal of certain judges, had been unlawful, and requiring the reinstatement of the deposed judges, would have done the job.

Mr Zardari has chosen to confound the matter by linking it with issues with which it need not be linked. He contends that it is more important to provide food, clothing and housing to the poor than it is to reinstate the judges.

He wants to treat it as part of a ‘constitutional package’ that will make the judges deliver justice to all. According to some reports, it will also indemnify all of Musharraf’s actions of Nov 3, 2007, reduce the chief justice’s tenure and diminish his administrative authority and enable the post-emergency appointees to the Supreme Court to retain the jobs they got through Gen Musharraf’s indulgence.

Some of these reports come from unidentified sources. But we cannot overlook an astonishing opinion which he offered at a recent press conference. He said the proposed constitutional package should enable the people’s representatives to punish judges who fail to defy a coup maker and validate his actions.

He argued that the people should be able to penalise such judges even if they could not chastise the usurper.

In other words, Mr Zardari would penalise the judges who go along with the general who appears gun in hand and tanks in tow, seizes the government, and threatens to break the bones of those who are reckless enough to challenge him. Yet, he wants the people’s representatives in the National Assembly to validate Gen Musharraf’s second coup (Nov 3).

It is bad news for the nation that its affairs are being run (even if indirectly) by a man whose mind works in this disorderly fashion.

It is possible that Mr Zardari is messing up the reinstatement process because he does not really want it to come to fruition. Why should that be the case? It is hard to see what he or his party will lose if the deposed judges go back to work, if the ‘new’ judges return to their previous stations, or if the tenure and powers of the chief justice remain as they are.

The reinstatement of judges will add to Musharraf’s humiliation first caused by the public’s repudiation of his rule on Feb 18. Mr Zardari does not want the general to be diminished further. He wants Musharraf to remain president in good standing. I am not sure why he will not dump Musharraf when the nation has disowned him.

Mr Zardari has not made a clean break with the preceding PML-Q regime. Malik Abdul Qayyun continues to be the attorney-general. Musharraf went to China and concluded agreements with its government. He is the one, and not Prime Minister Gilani, who more recently negotiated a gas deal with the visiting Iranian president.

It is generally believed that Ms Benazir Bhutto had made a deal with Musharraf which required her and her associates to support his retention of the president’s office. It is conceivable that, moved by some feudal notion of chivalry, Mr Zardari wants to honour the word she had given. It is possible also that the general has some leverage with him, which he cannot break. That possibility deserves to be investigated.

Another explanation, popular in certain quarters, has it that, moved by a miscalculation of Musharraf’s usefulness, the Bush administration wants him to remain at the helm in Pakistan, and is urging Mr

Zardari to help the general along. What it may be doing for Mr Zardari in return is not known.

But if it is not doing anything for him its advice should not be all that difficult to ignore, considering that Mr Bush is a ‘lame duck’ president with only a few more months in the White House. I am inclined to think that Mr Zardari also has his own reasons to stand by Musharraf.

Regretfully, I cannot claim to have unwrapped the enigma or unravelled the mystery of Mr Zardari’s motivations in politics. I hope others can do better.

The writer is a former visiting professor at the Lahore School of Economics.

anwarsyed@cox.net

THE authority of a court, an American judge Felix Frankfurter once famously said, ultimately rests on the public confidence in its moral sanctions. Is Pakistan’s Supreme Court still possessed of that authority after the agitation and arguments that have swirled around it for a year now?

This is a question that the legal community and the people at large must coolly contemplate.

Judge Frankfurter (1939-62) was an exponent of the doctrine of judicial self-restraint. He believed that the supreme court must defer to other branches of the state. In his rulings, he showed more concern for the integrity of the government than for the victims of legal injustice.

Our own judge, Iftikhar Chaudhry, has emerged as an exponent of judicial activism. He carried his concern for the victims of injustice to a point where other branches of the government felt their integrity was being threatened. Frankfurter’s judicial restraint did not stand in the way of his being recognised as a great judge. By the same token, Chaudhry’s activism in itself doesn’t make him a great judge. The essential ingredient of the greatness of a judge is his integrity. Other attributes can differ.

The moral sanctions of the court over which Frankfurter presided were never called into question. Can the same be said about the court to which Chaudhry may return to preside? President Musharraf’s reaction to Chaudhry’s activism was admittedly illegal and irresponsible. But more relevant to the moral authority of his court now would be the events that the president’s action let loose and the course they have taken since.

The issue central to this controversy is the dignity and independence of the Supreme Court. Under the pressure of conflicting political and professional interests, the focus has been shifting with every passing day from justice to politics. So much so that the committee constituted by the PPP and PML-N ‘for reinstatement of the deposed judges and allied matters’ is considering judicial independence in the light of the limited contents of the Bhurban Declaration alone.

Mr Fakhruddin Ebrahim has walked out of the committee because he could not bring himself round to being a party to a formula which would let the judges who had taken the oath under the PCO continue alongside those who hadn’t and were to be reinstated. The independence of the judiciary, thus, is being made hostage to legalism and politics.

The premise that the judiciary would become independent and its honour would be vindicated if the retired judges were to be reinstated is wholly flawed. Similarly, the proposal to expand the Supreme Court to accommodate the old and new judges would make it, like the cabinets of today, an arena of rival political interests instead of being a forum for justice for all citizens. It is this kind of conceptual disarray which has undermined the confidence of the people in the competence and integrity of the institutions of the state.

The follies of Musharraf and the lawyers’ anger — both unprecedented in their magnitude — had presented an opportunity to rid the judiciary of political control. Instead, the politicians are seeking to strangle it. In the hands of the legal profession, the cause of the judiciary is faring no better either. Stuck in the PCO/non-PCO grooves, lawyers are looking for a mechanism to get some judges in and others out or to let both revel at the expense of the taxpayer and the quality of justice. The sight of the basic aim of making the judiciary independent has been totally lost.

The oath taken, or not taken, under the PCO has become an all-consuming passion. But it is not a material, much less the only, test of a judge’s independence. After all, Justice Iftikhar Chaudhry, who had so resolutely led the campaign for an independent judiciary, too had taken the oath under the PCO in 1999. And then, he along with 11 other judges went on to validate the extra-constitutional intervention of the armed forces “on the basis of the doctrine of state necessity and the principle of salus populi suprema lax.” Unsolicited, the chief executive was further authorised to amend the constitution “if it fails to provide a solution for attainment of his declared objectives.”

The lawyers in the Naek committee need to break out of the PCO /non-PCO syndrome. Mr Farooq Naek should persuade Fakhruddin Ebrahim to rejoin and also invite some more lawyers and retired judges to participate in the deliberations. The expanded committee then should lay down the principles and procedure for the recall and removal of judges from the present lot and for all future appointments as well.

In the 2006 Charter of Democracy, Benazir Bhutto and Nawaz Sharif committed themselves to ‘an independent judiciary and a neutral civil service’. Their parties are now taking a self-serving and limited view of the independence of the judiciary and are acting totally against the neutrality of the civil service.

To Nawaz Sharif, judicial independence means little more than the reinstatement of the judges who had ceased to hold office under the November 2007 PCO and removal of those who were appointed under it. Asif Zardari seems to want to pick and choose from both lots and redefine their tenures. If their views prevail, the net result would be a judiciary which is more beholden to the politicians than independent of them.

Parliament should bind both parties down to fulfil their commitment in the London charter in its true spirit. The central point to note is that justice is in no manner linked with the oath. The neutrality of the civil service today is at greater peril than the independence of the judiciary. The civil servants as a class had ceased to be neutral long ago. Their extensive reshuffle in progress, quite obviously aims at helping the partisan and not the neutral among them.

The bureaucratic faces that had faded away have returned in full glow and those who strutted the stage have gone off it unsung. The legal community as a whole and the exertions of its fiery leaders, the likes of Aitzaz Ahsan, Ali Ahmad Kurd and Athar Minallah, have made the independence of the judiciary a living cause even if it remains elusive. Deprived of the support of such a large and dedicated cadre the cause of the neutrality of the civil service seems to have been lost for ever.

ON the assumption that President Barack Obama survives for a full four-year term – for it is generally assumed that, as the first African-American president, he will face a higher than average risk of assassination – what changes will he bring to the United States and the world?

It is remarkably difficult to say, for no president since Lyndon Johnson has come to office with so few commitments to specific policies. Oh, all right then, since Gerald Ford — but neither of those men was actually elected to the presidency.

It is now a near certainty that Obama will be the next US president. The media will try to maintain the illusion of a race for the Democratic nomination until Senator Hillary Clinton finally retires from the race (which may not be until the convention in August), because it helps to fill the awful gap between the 24-hour news cycle and the actual amount of news available. But as leading independent pollster John Zogby put it on Wednesday, “To all intents and purposes the race for the Democratic nomination is over.”

After last Tuesday’s North Carolina and Indiana primaries, there is no mathematical chance for Hillary Clinton to win a majority of the delegates to the Democratic convention, and the flow of money for her campaign is already drying up. It is unimaginable that the so-called “super-delegates” (senior Democratic party figures who get an automatic vote at the convention) would reject the verdict of the primaries by opting for Clinton, so the case is closed.

Having seen off the Hard Man of the Democratic party, Obama must now defeat the Hard Man of the Republican party in November. (Clinton promised to “obliterate” Iran if it attacks Israel; Senator John McCain has proposed threatening North Korea with “extinction.”) But it will be hard for Obama to lose while the United States is plunging into a deep recession and the Republican candidate is still shackled to the Bush administration’s war in Iraq.

About the only thing that would give McCain a chance of winning is a big terrorist attack on the United States that drives voters into the arms of those who promise security through endless war.

So Obama gets the presidency — and then what? A longish honeymoon, in all probability, while Americans congratulate themselves on having transcended the racist legacy of their past, which means that Obama will have a better chance than most new presidents to change the way things work. Moreover, he will probably be able to depend on Democratic majorities in both houses of Congress.

On the other hand, he will inherit a ravaged economy and a lost war, so he has little room for expensive domestic reforms or dramatic initiatives abroad. Getting American troops out of Iraq will take several years and use up a lot of his political credit at home. And he will not be able to cut bloated US military spending at the same time.

Indeed, there is little that any American president can do about a recession in the short run except to wait it out. Like Bill Clinton before him, Obama will ultimately have the job of repairing the huge budget deficit bequeathed to him by his Republican predecessor, but the only step he can take in the short run is to roll back the huge Bush tax cuts for the rich.

Reversing the Bush administration’s assault on the constitutional rights of American citizens and the human rights of non-Americans — closing Guantanamo, ending official support for torture, and restoring the civil liberties that were destroyed by the Patriot Act and subsequent legislation — are high-priority tasks that are practically cost-free. And creating a genuine national health-care programme would not cost that much in the early years.

Barack Obama has said very little about this during his campaign (and Hillary Clinton, haunted by her failure to reform health care in her husband’s first term as president, has said even less). But the fact that about one-sixth of the American population has no access to high-quality medical care is an astonishing failure in a rich democracy, and Obama has travelled enough to see it for the scandal that it is.

Obama may be unconvincing as a gun-loving, truck-driving, fast-food-addicted son of toil, but he is the candidate of the American poor even if many of the white poor don’t recognise him as such. No single reform would do so much to improve the lives of poor Americans as a fully comprehensive health-care system that is free at the point of delivery. He has given us few clues about his intentions, but my money says that that will be his first priority in domestic affairs. He might even succeed. ––Copyright