July 04, 2020
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The Bulldozer's Instinct

Sharif moves to silence the Senate even as the judiciary flexes its muscles against military courts

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The Bulldozer's Instinct
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PRIME MINISTER'S Nawaz Sharif's war on all forces opposed to his writ shows no signs of ending. In his search for absolute authority, he has taken on a new enemy - the Senate (upper house) - even as the Supreme Court, in a fresh spurt of judicial activism, dealt him a set of severe blows. On January 10, it stayed the death sentences handed out by the controversial, new military trial courts in Karachi. The next day, it also turned down the federal government's November 1998 suspension of the provincial assembly of Sindh.

Amid these rude shocks, Sharif was searching for ways to bypass the Senate - and adopt eight bills pending there by convening an unprecedented joint sitting of parliament. The National Assembly, where Sharif has a brute majority, adopted this polemical motion on January 12. Besides this 'legal' route, Sharif is inciting the masses, especially the religious forces, into building pressure on senators. Manufacturing a 'popular' mood is crucial to his campaign, for the chief bone of contention is the 15th Constitutional Amendment Bill, popularly called the Shariat Bill, which aims at making the the Sunnah the supreme law of the land.

He believes the Senate has no right to block the Bill's passage since it is not an elected body. "The people of Pakistan want imposition of Shariat. The National Assembly has passed the 15th Amendment, the Senate can't reject it," he says.

Numbers wise, the strength of the combined Opposition in the Senate is over 40. As only a two-thirds majority can amend the Constitution, the government needs 58 votes of a total of 87 to pass the Shariat bill. Fully aware of his numerical weakness, Sharif has turned to religious forces. The government's fragile strength in the Senate is evident from the fact that it has failed to table even a single piece of legislation in the Upper House during all of 1998 -instead, it promulgated 19 ordinances in 1998. The most glaring was the Pakistan Armed Forces (acting in aid of civil power) Ordinance for the establishment of military courts in Karachi with powers to arrest, investigate and try terrorists.

Two of the seven bills adopted by the National Assembly in 98 -15th Amendment Bill and the Executive Authority of the Federation Bill - were aimed at further enhancing the premiers powers. Critics say he is obsessed with having a 'rough and ready' justice system at his disposal, and 'Islamisation' provides just the right guise.

The leader of Opposition in the Senate, Aitzaz Ahsan, and deputy opposition leader Raza Rabbani have written to the president, asking him to stop the joint session. The government, which thrives on a clash between institutions functioning under the Constitution, now seeks a division within Parliament by circumventing the role of the Senate in legislation, they wrote.

Federal law minister Khalid Anwer points to an existing constitutional provision for a joint sitting of parliament, under Clause (2) of Article 70: "If a bill transmitted to a House is rejected or is not passed within 90 days of its receipt or is passed with amendment, the bill, at the request of the House in which it originated, shall be considered in a joint sitting." But of the eight bills in question, the government fought shy of even introducing six in the Senate, hence there is no question of the upper house rejecting them.

Constitutional experts deplore Sharif's attempt to bypass the upper house in matters of legislation. Supreme Court bar association president Abid Hasan Minto says the move violates both the letter and spirit of the Constitution: "The government has set a bad precedent which will harm the federation. Since the upper house has 87 members to the lower houses 217, any government with adequate majority in the lower house will be able to muzzle the federating units (Senate) voice in the matter of legislation."

Says Khalid Ranjha, a former judge of the Lahore High Court and ex-president of the Lahore High Court Bar Association: "The bills were not sent to the upper house because the government wanted to avoid a division and defeat on the floor of the house. It was trampling on constitutional norms only to maintain its aura of invincibility." Already, there is a feeling in the smaller provinces that Punjab - where Sharif's brother is chief minister - is having a bigger say in the national affairs because the pml's power base is Punjab.

WHILE the government should be doing its best to assuage and counter this feeling it is doing everything to stoke and reinforce it, says Awami National Party chief Ajmal Khattak, whose anp has already parted ways with Sharif. Agrees Tehrik-e-Insaaf chief Imran Khan: "The credit for providing a fresh impetus to the nationalists movement must go to the Sharif government that has given a new meaning to the concept of absolute centralised power."

Elaborating on Punjab's dominance over other provinces, the self-exiled Muttahida Qaumi Movement (mqm) chief Altaf Hussain, whose party has withdrawn its support to Sharif, says: "The prime minister, president, chairman of the Senate, chief justice of the Supreme Court, governor of the State Bank and auditor general are all Punjabis. An overwhelming majority of the federal ministers, and out of a total of 22 federal secretaries, 19 are Punjabis."

Irked with Sharif's quick-fix army trials in Karachi, the mqm leadership had maintained in the apex court that the government had gone outside the scope of the Constitution by giving sweeping powers to the armed forces. The mqm top brass went to court after a party activist, Ashraf Chakar, was executed within days of a judgement by a military court in Karachi. Chakar was declared a terrorist by the Sharif government and arrested on murder charges by the Karachi police.

Condemning the hasty decisions, Benazir Bhutto, ppp chief, also wrote to president Rafique Tarrar, urging him to refrain from sending to the gallows other people already sentenced by military courts until the court has ruled upon their validity.

The federal government has, however, refused to bow to the Supreme Court and has asked it to recall its interim order of staying the execution of death sentences. The grave aspect of national security, threat and danger to the integrity of Pakistan can only be averted if the process is allowed to complete its full stride. An interruption in this process may lead to a resurgence of violence in Karachi, says an application filed by the attorney general, on behalf of the federal government.

Judging by the mood in the official circles at Islamabad, the government is clearly bent upon subjugating the judiciary once and for all. But the judiciary too, if it is to survive as an institution, may not have any option but hit back. Says former Supreme Court chief justice Sajjad Ali Shah, who had been forced to quit after a confrontation with Sharif in 1997: "There is a basic difference between the functions of the government and the judiciary. It is up to the government to take an administrative action and it is up to the judiciary to examine it. Under the present structure, it's not possible for the judiciary to compromise on its role." Former ppp law minister Iqbal Hayder says the current activity of the judges might be an attempt to restore its lost credibility.

All is, therefore, set for a final battle between a marauding executive and a hitherto defensive judiciary; and an arrogant Sharif and an equally angry Senate.

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