Shedding ambiguity that had surrounded his stance on the judges' appointments though not many, there were some good-intentioned people always believed it was there - Prime Minister Gilani has come out openly in the support of President Zardari.
Putting up a passionate defence of the notoriously controversial Presidential notifications of February 13 he has gone even further; the 'restoration' of Chief Justice Iftikhar Muhammad Chaudhry and others, he claimed, was courtesy his "executive order which still needs to be validated and endorsed by the parliament". Obviously, that rabbit from the prime ministerial hat cocked up many an ear in the National Assembly Monday night, as members saw a new twist given to the controversy over the appointment and elevation of judges to superior courts.
His was a wrong action attributable to bad judgement or ignorance or inattention. His was also an absolutely outlandish claim, no wonder therefore within hours of his bombast it was rejected by a whole lot of legal experts. At a time when a saner person should have been trying to find a way out of the thickening darkness of uncertainty Prime Minister Gilani was trying to misinform the parliament and misguide the people. But, more importantly, he has exposed the dangers inherent in our electoral system which as yet is prone to hijacking by charlatans.
Of course, appointments to senior positions in the government invariably turn into battles for turf; not only in Pakistan but anywhere in the world. But few would accept this contention becoming something like the American spoils system, particularly when it concerns the appointment of judges who are supposed to be independent and not beholden to any one. Under the Constitution, the Chief Justice of Pakistan and chief justices of High Courts are indispensable consultees for the appointment and elevation of judges to superior courts.
And it was no big deal if there were mismatching positions held by the Prime Minister and the Chief Justice of Pakistan in the cases of elevation of Justice Khawaja Sharif to Supreme Court and appointment of Justice Saquib Nisar as acting CJ Lahore High Court.
The President, though bound by the advice of the Prime Minister could very well ask the CJP to revisit his recommendations instead of going ahead with notifications which were immediately suspended by a three-member bench of the Supreme Court. And how bizarre, the process of recommendations which should have been discreet and hidden from the public eye became media staple and political contention.
But first things first. It is important to see through the game Prime Minister Gilani seems to have whistled into play. How come he thinks that it was his 'executive order' that restored the judiciary when, after the Supreme Court decision of July 2009 it was never removed and, therefore, there is no question of restoration and endorsement by the parliament? On returning to their courts the judges did not take any oath as it was not required given that Article 270AAA, a legal fiction created by General Musharraf to give life to his illegal and unconstitutional acts, was taken off the statute book by the Supreme Court.
But having said this we cannot deny the fact that the Constitution in its present form still abounds in distortions injected into it by military dictators and pliant judges of the superior courts and not too infrequently legalised by successive rubber stamp parliaments. It is a document that was originally written to cater to the needs of a parliamentary form of government but over time it was metamorphosed into a tool to serve the needs of an authoritarian system. Pity, the parliamentary committee that has been charged with a task to remove these distortions is still far from completing its work and in the vacuum that exists, constitutional anomalies keep raising their ugly heads.
It is our earnest hope that the parliamentary committee will be spared of any jolts as the confrontation over the judges' notifications heats up. In fact, there is no alternative to introducing constitutional clean-up reforms through the parliament. PML (N) must come back to the committee, as it seems to be already alerted to the danger the street agitation poses to the present system. In the meanwhile, the Zardari-Gilani led government would be advised to withdraw the highly controversial notifications much before it is found running afoul of the Constitution by the Supreme Court. The government should submit itself to the majesty of law, by rejecting the notion that the six dozen-plus vacancies in the superior courts are a windfall that should not go un-harnessed.