Tweaking the system

UP, down, up, down, round and round the merry-go-round — on and on it grinds. At least once upon a time, the problem was known and the solution apparent.

This time, whatever this is and wherever it ends, it’s already obvious some things will need to be changed around. The system will have to be rejigged a bit.

But where? And how?

When it was the troika, 58(2)b had to be got rid of — simple. It was eventually got rid of and a problem was solved: the civilian presidency ceased to be a source of constitutional instability.

Sure, the preferred method for removing a PM has moved on to 62/63, but that’s a different kind of problem: 58(2)b got rid of entire parliaments and forced fresh elections; 62/63 sends home one chap.

It matters more when that chap is Nawaz, the actual source of power in his eponymously named party, than a Gilani or Raja Pervez, selected for the job by a party boss, but it’s still a different problem.

And maybe not a problem rooted in direct constitutional imbalances.

The system will have to be rejigged if it is to deliver anything more than bare continuity, if that.

If the civilians fix the honest and trustworthy stuff, adjust 62(1)f and clean up a bunch of the other clauses, that would still leave a trial-court conviction as an ouster route — like what Nawaz is likely facing in the NAB court.

To block that route, the PM would have to get immunity from prosecution while in office, along the lines of what the president has, but that would be massively controversial and an endless rabbit hole.

History suggests that when the system wants its man, the system gets its man.

The cost to the democratic system of granting sweeping immunity to the PM could be higher than the cost of losing a PM every little while in an era of continuity.

But there are also over-corrections that can be found in attempting to fix the problems of the past; over-corrections that now are threatening to create massive distortions of their own. And some may be easier to fix than others.

Take this business of a crusading court.

Right at the top, a balance of sorts was originally struck: mandatory retirement versus job security. If you’re a politician, you’re terrified of a judge for life — imagine what he could do at the very top if he never has to go home.

Recent examples are sufficient to gauge the disruptive possibilities.

But if you’re a judge, the last thing you want is a politician who controls your fate. So a system of automatic elevation to the top job was enforced: the senior-most justice becomes CJP.

The balance between mandatory retirement and automatic elevation creates enough regular turnover to, theoretically, help mitigate the disruption that any given judge can cause.

But that balance, never very reliable to begin with, is significantly out of whack now.

And what, really, can be done?

The card the politicians had has already been played once. It makes sense to give parliament a role in the appointment of superior court judges. They tried it in the 18th and it was a fairly reasonable effort:

Loosen the dominance of the CJP in the appointment process and give a joint parliamentary committee a role in the selection.

But while a reasonable effort, the timing was wrong and the consequences disastrous. Iftikhar Chaudhry was presiding in Courtroom No 1 and he, slayer of Musharraf, wasn’t going to let a few politicians reduce his power.

The new judges appointment process in the 18th was thundered against and parliament bullied into transferring to the CJP virtually all power in the superior judiciary appointment process.

It was a disaster because to overrule parliament, the court had to suggest it believed it has the power to judge the constitutionality of constitutional amendments — effectively, a judicial veto.

That belief was eventually and spectacularly confirmed with military courts and the 21st Amendment. So even if the politicians try again to shape the future of the court by amending the appointment process, they probably won’t get very far.

The other route, reducing the court’s powers, is also now a non-starter. Stripping the court of its suo motu powers or attempting to constitutionally narrow its scope could quickly be struck down by the court.

So, make it easier for the Supreme Judicial Council to act? That would be playing with fire. Create a constitutional court? That’s the nuclear option — and could draw a nuclear response.

At least once upon a time, the problem was known and the solution apparent.

Now it’ll probably require a bunch of small tweaks across the board.

The Senate? Ugly as the chairman vote was, it’s not a pivotal post. The bigger problem apparent is in the election of the senators themselves. So maybe it’s time to switch to direct elections or ditch the secret ballot.

This recurring nightmare with the PM? Maybe it’s time to go back to term limits and switch parliament to a four-year term. A maximum of two terms and the Nawaz problem of sticking around forever would disappear.

And if a four-year parliamentary term, by last July, the country would have been heading into a general election instead of a fifth parliamentary year and agonising uncertainty.

The system will have to be rejigged if it is to deliver anything more than bare continuity, if that.

So as the up, down, up, down, round and round the merry-go-round goes on, it could be time to think about the things that may have to be changed around.

And how.

Happy Easter.

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