The so-called judiciary-executive tensions which recently dominated media coverage present an interesting development. Many observers are of the view that there was some substance in the reports about a possible move to `denotify` the executive order that restored the present judiciary; after all Mr Sharifuddin Pirzada, a well-known advisor to constitutional adventurers, it has been suggested, would not have been visiting Islamabad at this ripe old age just as a tourist, as reported in the media.

The trend in mature democracies, for example, is for what is called democratisation of judicial appointments. Instead of being the exclusive right of the chief justice or of the president to nominate judges, the new trend is towards participation in the process by well-informed citizens with impeccable record representing society at large. What the constitutional reform committee produced was to add weight of the government in the decision-making about appointment of judges, virtually a shared oligarchy, with attorney general and the president’s confidant, the minister of law, justice, etc, representing the executive on the commission. The outcome certainly would have affected independence of judiciary. Therefore, it is not a step in the right direction to promote democracy.

The Supreme Court in its just-announced judgment on an appeal filed with it, has returned Article 175-A for reconsideration by parliament, along with its observations on the new Article. The Court, however, has also delivered its interpretation of the basic process virtually confirming the old procedure of appointment of judges, albeit keeping the framework of the new proposal, and emphasising the role of the prime minister in it.

The judgment has been hailed as a victory for ‘sovereignty and independence’ of the parliament by Prime Minister Yousaf Raza Gilani; the real implications perhaps have gradually started to be felt in the official circles, with the Court’s reinterpretation of the process for selection of judges. The final outcome protecting independence of judiciary should be welcome, given the two alternatives But there was a third alternative available to strengthen independence of judiciary, the people, and the real losers are the people who have been deprived of representation, thanks to the game played by the Zardari government.

It is obvious that neither the constitutional reform committee nor others in the elite circles took any trouble to acquaint themselves with the recent trends about the place of judiciary in society as it is unfolding in advanced democracies as mentioned above (e.g. reforms instituted in the UK and other European countries).

It seems that the aim of the Zardari government was to harness the judiciary. Some commentaries suggest that it underlined nostalgia for the old Dogar court. The shadows of NRO are deep and long. The paradox is that the people who would be required to implement the judgment are themselves its target. They would not be comfortable with the ‘activist’ Court. To counter the involvement of the court in the NRO, the official line is that NRO was devised to facilitate the restoration of democracy in the country.

The argument is that the cases on corruption were ‘going nowhere’ because strong proof about the charges was not forthcoming. Historically, however, this assertion is false. The fact is that the NRO was planned with the blessings of the US administration to pave the way for Musharraf-Benazir Bhutto agreement, in order to stop the proceedings which had already been instituted by the reorganised 2002 NAB (the British newspapers, especially The Guardian published investigative reports on the matter during that period).

The encounter of the judiciary with the executive once again brings out the paradox of their relationship. Those who claim that parliament is sovereign nevertheless seem to look forward to endorsement by judiciary of their actions. This then does not really point to the ‘trichotomy’ of power’. It only underlines a convenient view that in matters ‘belonging’ to the executive, the court’s duty is to just watch and observe.

Parliamentary democracy, however, has evolved, moving away from Sovereign to constitution, and interpretation of the constitution has become the responsibility of the Supreme Court (or a constitutional court where it exists). Trichotomy or balance of power are the terms which had originated in the USA but the system there has become settled with the supreme court as the custodian of the constitution.

Coming to my second point about the president holding a political office, the 18th Amendment has produced another anomaly. Its claim for promotion of parliamentary democracy is in contrast with the reality of powers of president. As the constitution stipulates, president is head of the state and represents the unity of the nation, and that he shall hold no office of remuneration. If the president is the symbol of the unity of the nation, he must remain above party politics, an assumption implicit in the definition of his position. This important question is under appeal to the Lahore High Court and until the judgment is delivered, there is scope to examine it.

The Political Parties Ordinance lays down no guidelines to promote intra-party democracy. The head of the party is not chosen by any established electoral procedures; parties tend to be personal fiefdoms of the leaders, with smaller parties putting their alliance for sale, ‘for the sake of democracy’. The head of the party, however, exercises immense powers, as he controls the nomination of candidates for respective constituencies, a coveted privilege, which potentially carries tangible rewards, with investment of election expenses. The head or the leader of the party carries a responsibility, therefore, which has important economic implications for potential and sitting party members of provincial and national legislatures.

Should then this office be open to the president to be held by him concurrently at his pleasure? In a democracy there are two courses of action available to answer this question. One relates to good judgement or what may be called ‘conventional wisdom’ and it suggests that where there is a conflict of interest or where it might seem to exist, then holding of two positions simultaneously should be avoided. The second course of action may be to explicitly stipulate it in the constitution, or be established by an act of parliament by revising the existing Political Parties Ordinance. In the British parliamentary tradition, a great deal of reliance is placed on convention. That tradition has not yet evolved in Pakistan.

The parties represented in the committee on constitutional reform, perhaps would have hesitated to change the status quo, which they all share, unless they would rise to the occasion and look at the issue from the national point of view. Nevertheless, this matter should not have been ignored by the committee on constitutional reform, especially when he had been vested with the authority to impose discipline on members of parliament elected on the party ticket.

Mr Zardari holds the position of co-chairperson of the party, and also leaves considerable scope for himself to manoeuvre the composition of the ‘core executive committee’, at his discretion. As president, he claims, he acts on the advice of the prime minister. But as co-chairman of the party he directs and approves all political matters. Is it then the president or the prime minister who is the head of the government? Mr Zardari claims that for the first time in history a civilian president has voluntarily ‘transferred’ his powers to the prime minister. There is a general agreement in the country, however, that Mr Zardari is the command centre for all business conducted by the government.

Such a concentration of power, a miracle of ‘reconciliation’; and such a poor record of governance!

The writer is a retired professor. izzud-din.pal@videotron.ca