The results of the February 18th election in Pakistan created a fresh wave of euphoria in the country, as it implied Pakistan’s imminent transition to democracy. The new government, which comprises of a coalition between the Pakistan People’s Party (PPP) and the Pakistan Muslim League-Nawaz (PML-N), is faced with a number of daunting challenges including spiralling inflation, rising terrorism and a severe energy shortage. Adding to this list of challenges is the issue of the resolution of the judicial crisis, which has engulfed the country since March 2007.

In the run-up to the elections, the PML-N made tall claims with regard to this issue, and used the restoration of the judiciary as the primary sales pitch for its election campaign. The issue was also prioritised in the Murree Declaration, which formalised the framework of the governing coalition.

According to this Declaration, the two parties agreed that the deposed judges would be restored to their positions prior to 3rd November, 2007 within thirty days of the formation of the federal government. Thus, the deadline for the restoration of the judiciary was decided to be the 30th of April, 2008. Despite this agreement and the set deadline, Asif Ali Zardari, leader of the PPP, and Mr. Nawaz Sharif, leader of the PML-N, differed over the pace and the means through which the restoration should be implemented.

Zardari has talked about the independence of the judiciary, while Sharif has urged for the restoration of the deposed judges. More specifically, the PML-N urged for the removal of all those judges who took oath under the Provisional Constitutional Order or PCO (which replaced the suspended constitution following the November 3rd emergency imposed by President Musharraf).

In contrast, the PPP wants to retain those judges, and seeks to restore the deposed judges too. Moreover, while Zardari supported a five-year tenure of the Supreme Court Chief Justice, Sharif urged for the implementation of the Murree Declaration in letter and spirit on the grounds that such an arrangement would shorten Justice Iftikhar Chaudhry’s stay as the Chief Justice.

Another contentious issue pertained to the “minus x” formula recommended by the PPP, whereby the judiciary’s restoration would be subject to the exclusion of certain judges from the new judicial set-up. Sharif adopted a firm stance on this point, making it clear that such a formula was not acceptable to the PML-N.

While both parties denied a deadlock on the issue of the restoration of the judiciary, it was clear that Zardari did not share Sharif’s enthusiasm for restoring the deposed judges - at least not all of them. These differences between the two coalition partners resulted in several rounds of inconclusive talks, and many have predicted that the deadlock between the two parties would lead to the downfall of the coalition.

Following the initial rounds of talks, the PML-N announced that if differences persist between PPP and the PML-N over the restoration of the judiciary, the PML-N members would quit its ministerial positions, while still continuing to extend support to the PPP at the centre in order to allow Pakistan to make a successful transition to democracy.

The 30-day deadline set by the Murree Declaration arrived without the restoration of the deposed judiciary, leaving Sharif in a rather tight corner, as reneging on a promise that served as the fulcrum of his election campaign would have damaged his political credibility significantly. It was only after several rounds of talks that a decision was reached.

On 2nd May, 2008 Sharif announced that the governing coalition had decided that the ousted judges would be restored to their positions prior to 3rd November, 2007. However, he also announced that the PML-N had agreed to “compromise” on the issue of the judges who took oath under the PCO, as it had been decided that these judges would not be removed, hence increasing the number of judges of the Supreme Court.

This reluctance on the part of Zardari to remove the judges who took oath under the PCO, in conjunction with the “minus x” formula proposed by the PPP have exposed significant insecurities felt by the leader of the coalition government in Pakistan - the PPP.

While PML-N has consistently adopted a much firmer stance against Musharraf, refusing to acknowledge him as an elected president, the PPP is wary of a direct confrontation with the President.

The PML-N’s position is easily explainable through history, as Musharraf (then General Musharraf) toppled Sharif’s government in a bloodless coup in 1999 on the grounds of corruption. Sharif has been calling for President Musharraf’s impeachment since the elections, but is aware that this may not be possible as the PML-N is part of a coalition set up where its coalition partner, the PPP is not as strident as the PML-N in opposing the President. Also, the PML-N is aware of the US-support that President Musharraf enjoys.

Recognising these realities, the PML-N seems to be taking an alternative route. Political calculations have led the PML-N to conclude that the restoration of the judiciary, would result in Musharraf’s actions being questioned in the Supreme Court, hence leading to his exit from the government and political scene in Pakistan.

On the other hand, the primary reason behind the rather muted stance of the PPP is the National Reconciliation Ordinance (NRO) which was the brainchild of none other than the President himself. The Pakistan People’s Party and the Muttahida Qaumi Movement were the greatest beneficiaries of the NRO, as this Ordinance dropped corruption charges against politicians, granting them amnesty, hence allowing them to return to Pakistan and contest the elections.

However, the question that comes to mind is how the issue of the NRO ties in with the issue of the restoration of the judiciary. The PPP has been emphasising the independence of the judiciary as opposed to the restoration of the deposed judges. The NRO has an important part to play in this political drama, as the Ordinance was engineered by the judges who took oath under the PCO.

As a result, if these judges were removed and replaced by those wronged by Musharraf, it is likely that they will question the validity of the NRO in the Supreme Court. This would work to the disadvantage of Zardari and some other PPP members such as Rehman Malik, Hussain Haqqani and Salman Faroooqui, all of whom are part of the new government despite having a “tainted past” in terms of an alleged track record of corruption and misuse of authority during previous PPP governments.

It is for the same reason that the PPP recommended a “minus x” formula, as that would ensure that those harmful to the party’s interests would be left out of the judicial set up, hence assigning the judiciary the lead role vis-à-vis partisan politics in the country. Nevertheless, the PML-N did not compromise on being exclusive in terms of restoring the deposed judges, but it did have to soften its stance on the judges who took oath under the PCO.

The new deadline for the restoration of the deposed judges has been extended to May 12th, 2008. One possibility is that in order to insulate itself from judicial pressure, the PPP will approach the judiciary (if it has not done so already) for a “deal” which ensures its political survival.

However, if the deposed judges are restored by May 12th, it will be difficult to predict the extent to which the Supreme Court will become hostage to party politics in Pakistan. The weeks following May 12th will be essential in determining the future strength of Pakistan’s institutions, particularly the Supreme Court.

However, these few weeks also present a catch-22 situation, as the absence of an understanding between the PPP and the judiciary may lead to an outright confrontation between the government (mainly the PPP) and the Supreme Court on the issue of the NRO, thus potentially derailing the democratisation in the country.