END GAME FOR MUSHARRAF?

Analysis by Amir Mir

(IPS) ISLAMABAD -- Throwing a serious challenge to Pakistani President Pervez Musharraf, the two main victorious parties in the Feb.18 general elections have jointly pledged to reinstate all 63 senior judges, sacked for refusing to recognize his Nov.3 emergency order.

The Asif Zardari-led Pakistan People's Party (PPP) and the Nawaz Sharif-led Pakistan Muslim League (PML-N) will, as part of a pact, move to reinstate the judges, including chief justice Iftikhar Muhammad Chaudhry, within 30 days of the formation of their coalition government at the center.

Following a marathon session held at the hill station of Murree, the leaders of the two parties made their decision known through a press conference they jointly addressed on Sunday. They said the reinstatement would be effected through a parliamentary resolution.

"The restoration of the judges will send a powerful message to the power hungry dictator that the Constitution was not something that could be changed to protect one's personal interests. Musharraf is an unconstitutional president who should quit immediately while respecting the mandate of the people of Pakistan who had voted against his five-year dictatorial rule," the two leaders demanded.

It was after some dithering that the rivals-turned-allies swapped concessions and decided to isolate the President, promising a tense post-election power transition. The PML-N has agreed to be part of a PPP-led federal cabinet in return for agreement to set a deadline for the restoration of the judiciary.

Musharraf, who seized power in a military coup in 1999, ousting an elected government led by Sharif, has enjoyed the strong backing of the United States, especially after he agreed to be an ally in the Ôwar-on-terror' in neighboring Afghanistan.

Though he took care to have himself elected President in October, before stepping down as army chief, the unexpected outcome of the elections has considerably weakened his position and claim to legitimacy.

The restoration of the pre-Nov. 3 judiciary through a National Assembly resolution will result in nullification of the constitutional amendments made by Musharraf in his capacity as the army chief and their subsequent validation by his hand-picked Supreme Court bench.

Aitzaz Ahsan, president of the Supreme Court Bar Association, told IPS: "The passing of the parliamentary resolution in a span of one month of the formation of their government would further corner Musharraf who would be left with hardly any option to avert his ouster. Although he continues to insist that the deposed judges could not be restored, the fact remains that he would be helpless to block their restoration by the new parliament.'

Experts differ on what it would take to reinstate the judges -- a simple executive order or a parliamentary resolution. In the case of the latter some opine it would call for a two-thirds majority.

Malik Mohammad Qayyum, Attorney General of Pakistan, told IPS: "As far as the constitution is concerned, the deposed judges can't be reinstated through a mere parliamentary resolution, and a two-thirds majority is a must. And the winning parties' decision to do it, come what may, will mean a direct confrontation between the parliament and the presidency which could severely damage the present democratic dispensation."

On the other hand, acknowledged constitutional expert and former attorney general Fakhruddin G. Ebrahim says that a mere parliamentary resolution is enough to nullify Musharraf's provisional constitutional order (PCO) of Nov. 3. "A two-thirds majority is needed to nullify a constitutional amendment and not an illegal action," he said.

Elaborating, Ebrahim said the judges were sacked by Musharraf as army chief without any constitutional authority and in defiance of an anti-PCO ruling given by a Supreme Court bench hours before the actual proclamation of emergency. Musharraf had resorted to this course of action when faced with the possibility of an adverse ruling by a Supreme Court bench on his candidacy for president. All of these, said Ebrahim, can be reversed by a simple executive order or a parliamentary resolution on a simple majority.

But the issue may not end with the reinstatement of the deposed judges. According to Ahsan all unconstitutional actions by Musharraf, including his qualification as the presidential candidate and the Nov. 3 emergency, would be scrutinized by the restored judges of the Supreme Court as they were doing before their ouster. "What will be the consequences of these adjudications is abundantly clear even now,' he said.

Highly placed insiders in the PPP and the PML-N confided to IPS that the two parties have decided that after the restoration of judges, the ruling coalition would request Musharraf to step down. If Musharraf refuses, the new ruling coalition would initiate impeachment proceedings.

Giving his reaction, presidential spokesman Maj Gen (retd) Rashid Qureshi told IPS: "President Musharraf is determined to complete his five-year constitutional term and will not resign come what may, under any circumstances."

According to Qayyum, any move by the new parliament to reinstate the deposed judges could be instantly struck down by the incumbent judges of the Supreme Court.

However, said Ahsan, any move by Musharraf to seek help from his hand-picked judiciary is bound to evoke resistance from a charged-up legal fraternity that will no longer have to face police batons and teargas once a friendly government is installed.

Asked about the possibility of Musharraf using the discretionary constitutional powers vested in him as the president to dismiss the assemblies, Ahsan said: "The dissolution of the National Assembly so soon after the elections is simply out of question, especially at a time when the army high command has already distanced itself from the President."