AMINULLAH CHAUDRY At the height of the campaign for the restoration of the pre-November 3, 2007 judiciary, Mian Nawaz Sharif, the PML-N Quaid made an extraordinary offer. If the judges were restored, he declared solemnly, no more demands would be made on the PPP-led government in the federation. Only the very naive thought that Mian Sahib would allow the PPP a safe and undisturbed passage for the remaining four years of its constitutional tenure. Soon enough, the PML-N resumed its aggressive posture. Its leaders now insisted that the federal government should implement the Charter of Democracy (COD) and repeal the 17th amendment pending which the party would not accept any position in the Cabinet of Syed Yousuf Raza Gilani. In response to the prime minister's formal invitation to join the Cabinet, the PML-N after discussing the matter in a meeting of its CWC, declined. Why is it that Nawaz Sharif continues to insist on the full and complete implementation of the COD before his party would, in the words of the Leader of the Opposition, "even consider" joining the Cabinet? Why is he so utterly inflexible on this issue? Was this plain, simple cussedness or was there a sinister plan behind such stonewalling? To figure out this stance of the PML-N we would need to revisit the circumstances in which the COD was signed on May 14, 2006. Both Mohtarma Benazir Bhutto and Mian Nawaz Sharif were then in exile and their common perceived enemy was General Pervez Musharraf and his junta. They held three meetings, two in London and one in Dubai with a one point agenda - to bring the military rule in Pakistan to a speedy end and to ensure that the country is never saddled with such an autocratic order again. A cursory reading of the COD makes it amply clear that its fundamental aim is to cut the military down to size thereby preventing the possibility of it playing a dominant role in the governance of Pakistan. The COD comprises a Preamble and thirty four (34) paras split into four parts, namely, Constitutional Amendments, Code of Conduct, Free and Fair Elections and Civil-Military relations. The Preamble, which sets the tone of the COD, makes seven statements, four of which relate to the military. It speaks of the "military's subordination of all state institutions", the "traumatic experiences that our nation suffered under military dictatorships", the lesson that "military dictatorship and the nation cannot co-exist" and the need to save the "motherland from the clutches of military dictatorship." Paras 32 to 35 spell out the measures that would need to be taken to prevent the military from repeatedly interfering in the political process. The charter proposes to make the ISI, MI and other security agencies accountable to the elected government (para 32); to disband the political wings of all intelligence agencies (para 32); to place the defence budget before Parliament for approval (para 34); to evaluate waste and bloat in the armed forces and security agencies through a committee (para 32); and to set-up a commission to review the "legitimacy of all such land allotment rules, regulations, and policies along with all cases of state land allotments including those of military urban and agricultural land allotments since October 12, 1999 to hold those accountable who have indulged in malpractices, profiteering and favouritism (par 35). The charter proposes to place the Nuclear Command and Control System under the Defence Committee of the Cabinet (para 17), abolish the National Security Council, provide a permanent Secretariat for the Defence Committee of the Cabinet (para 11). A commission would investigate "incidences such as Kargil" (para 13-b). A number of far reaching constitutional amendments are envisaged. It is proposed to do away with the 17th amendment, with the exception of provisions relating to joint electorates, voting age, women's seats and the increased size of the assemblies (para 1). A Judicial Appointments Commission headed by the chief justice and comprising members of representative lawyers bodies would nominate a panel of names to be placed before a Parliamentary Committee for approval (para 3-a).The same body will handle cases of discipline and removal of members of the judiciary. A Federal Constitutional Court with exclusive jurisdiction over constitutional matters would be established, with the Supreme and High Courts only hearing criminal and civil matters (para 40). It is proposed to abolish the Concurrent List in Article Schedule of the constitution. A transparent procedure has been delineated for the selection of the Chief Election Commissioner (para 27). There a number of other commitments held out in the COD. These relate to the abolition of NAB, increasing the size of the Senate, establishing a Truth and Reconciliation Commission and a National Democracy Commission, and ensuring freedom of the press. Immediately after the COD was signed both parties launched a media campaign to highlight the impact the charter would have on political developments in Pakistan. While the PML-N, barring its strident information secretary, adopted a measured approach, the PPP seemed ecstatic. Wajid Shamsul Hasan describing it as a latter day Magna Carta, a historic agreement as important as the Objectives Resolution and the Constitution of 1973, excitedly observed that it would guarantee a prosperous Pakistan. Within a year of its signing, two important events took place. General Musharraf made a ham-handed effort to remove the Chief Justice of Pakistan in March, 2007 and the junta's behind the scenes negotiations with Benazir began to gather momentum. In September, 2007 Nawaz Sharif made an unsuccessful attempt to return to Pakistan and in October, 2007 Benazir actually did so. Clearly on the back foot, Musharraf tried to bull his way out of the crises by declaring an emergency and sacking over sixty judges of the superior judiciary. Not too excited about letting Benazir monopolise the political arena, the hosts of Nawaz Sharif in Jeddah began to push for his return as well. On his return Nawaz Sharif had two options. He could either take up the main plank of the COD and in the process confront the military or he could become an enthusiastic supporter of the lawyer's movement. Aitzaz Ahsan persuaded him to do the latter. The elections of February, 2008 handed Nawaz Sharif another opportunity to push forward his agenda. His party secured the highest number of seats in the Punjab and as a consequence did reasonably well in the National Assembly. In March, 2009 Nawaz Sharif and Asif Zardari jointly announced the Murree (or Bhurban) Declaration. Out of the six points agreed upon in Murree, five related to the mechanics of forming coalition governments at the Centre and in Punjab, and just one focussed on the restoration of pre-November, 2007 position. Having joined the Cabinet on the basis of the Murree Declaration, the PML-N now took up the judges issue in right earnest. Finding the PPP unwilling to honour this pledge, it withdrew from the Cabinet. Occupying the moral high ground, it came out openly in support of the lawyers long march, promising to join it. Due to sheer weight in numbers the PML-N literally hijacked the lawyers movement, and Nawaz Sharif reaped the greatest political advantage from it. The time was ripe for Nawaz Sharif to pile on the pressure by focussing on the COD. Once again, his timing was impeccable. The COD could be said to contain three categories of initiatives. First there are those which can be implemented without controversy. Increasing the size of the Senate, allocation of reserved seats for women and minorities, empowering the Northern Area Legislative Council, abolishing NAB, setting up a Truth and Reconciliation Commission and improving governance would not present major hurdles. There is the second category that would involve an exchange of views with the components of the superior judiciary and this would require tact and patience. Would the superior judiciary, recently reinstalled on the basis of a popular movement allow judicial appointments to be scrutinised by a Parliamentary Committee? Would it be inclined to alter the process of "consultation" laid down in the famous Al-Jehad case of 1996? Would it countenance the removal of judges by the same body which appoints them? Would the Supreme Court take kindly to the idea of taking away its jurisdiction on constitutional matters and transferring it to a Federal Constitutional Court? These are tricky and complicated issues which the PML-N would prefer not to get involved in as a part of the Cabinet. Why would Nawaz Sharif wish to erode the enormous goodwill he gained in the legal profession by taking a stance that would facilitate ultimate parliamentary control over judicial appointments? Even bigger problems would be caused by the third category, which promises to be a nasty bed of thorns for the government. I refer to the sensitive matter of civil-military relations. The circumstances prevailing in May, 2006 have undergone a sea change. The War On Terror has assumed alarming proportions, an ugly situation is emerging in Balochistan, and the Law Enforcement Agencies are under intense pressure. The Obama Administration has announced a new AfPak strategy and its two principal interlocutors constantly engage the Pakistan Army high command in discussions. It is the army chief and not the defence minister or defence secretary who interfaces with the Americans. The foreign press has carried a number of alarming reports suggesting that the army chief had to intervene to resolve the judicial crises leading up to March 16, 2009. Nawaz Sharif is being extremely astute in staying away from such complex issues. He knows that if his team were to be a part of the Cabinet, it would have to take the blame for a failure to implement paras 32-35 of the COD. A better option is to let the PPP take the heat. The PML-N for its part could, as a friendly opposition, keep up the pressure on the government to honour its pledge of implementing the COD, a document signed by their martyred leader. Through astute manoeuvring Nawaz Sharif has placed himself in a win-win situation. The writer is a former secretary to prime minister