GOP BACKS DOWN FROM PRESIDENT'S JUDICIAL

C O N F I D E N T I A L SECTION 01 OF 02 ISLAMABAD 000383

SIPDIS

E.O. 12958: DECL: 02/17/2020
TAGS: PGOV PK
SUBJECT: GOP BACKS DOWN FROM PRESIDENT'S JUDICIAL
APPOINTMENTS

Classified By: Anne W. Patterson for reasons 1.4 (b) (d)


1. (C) On February 17, after much protest, the Government of
Pakistan (GOP) backed down from President Asif Zardari's
decision to appoint Justice Khawaja Muhammad Sharif to
Pakistan's Supreme Court (SC),elevating him from the Lahore
High Court (LHC),and Justice Saqib Nisar as acting Chief
Justice of the LHC. After meeting with Chief Justice (CJ)
Iftikhar Mohammad Chaudhry on February 17, Prime Minister
Yusuf Gilani announced that it had been decided that Justice
Nisar will be elevated to the SC and that Justice Khawaja
would remain as Chief Justice of the LHC, which is what the
CJ had recommended to the President back in January. The
GOP's decision reflects recognition that they had badly
miscalculated on the political uproar that ensued from their
decision and the Supreme Court's instant reaction to it.


2. (C) Almost immediately after the GOP announced the
controversial judicial appointments on February 13, the
Supreme Court issued an order suspending these appointments,
laying down a marker for a legal battle with the President.
The Supreme Court argued that the President, per the
Constitution, had failed to consult with the Chief Justice on
the appointments and was, therefore, in violation of the
Constitution. The SC's swift action to counter the
President's decision was not all that surprising given that
in January Zardari had reportedly rejected Chaudhry's
recommendation to elevate Justice Nisar from the LHC to the
SC to fill the seat vacated by the retired SC Justice
Khalilur Rahman Ramday, and to appoint Ramday as an ad-hoc SC
Judge. The President's failure to abide by the CJ's initial
recommendations had already set the stage to place him at
logger heads with the CJ.


3. (C) In a February 15 meeting with Ambassador Patterson,
President Zardari explained that his actions in the judicial
appointment saga were motivated by a desire to remove Justice
Khawaja Muhammad Sharif from his position as Chief Justice of
the Lahore High Court. He argued that Sharif, who has
repeatedly released terrorist suspects, was a menace to
national security and would do far less damage as one of the
associate justices on the Supreme Court. Zardari admitted
that he would likely lose in the current appointment process,
but hoped that the Supreme Court's rejection of seniority as
a required precedent for appointment would create a public
outcry within the bar, the media, and political circles.
(Note: Sharif is the senior-most High Court judge and based
on several earlier Supreme Court rulings should have been
next in line for appointment to the Supreme Court. End
Note.) Zardari believed that if such a public furor was
created, it would force the Chief Justice to follow the
seniority precedent in the next round of appointments in
March and elevate Sharif.


4. (U) While some prominent attorneys including Asma
Jehangir, Ch. Aitzaz Ahsan, and Ali Ahmed Kurd supported the
seniority precedent, support was far from overwhelming and
the bulk of the media and the bar supported the CJ. A day
after the February 13 judicial appointment announcement,
Nawaz Sharif, leader of the Pakistan Muslim League-Nawaz
(PML-N),strongly and publicly rejected the move and called
for the implementation of the Chief Justice's recommendations
for judges' appointments. Nawaz went on to describe
President Zardari as the greatest threat to Pakistan's
democracy, describing his judicial appointments as overreach.
Nawaz is reported to have said that the PML-N would protest,
both in and outside of Parliament, and that it would mobilize
the people of Pakistan against the President's judicial
appointments.


5. (C) While meeting with CODEL McCaskill on February 15,
Gilani informed that the National Assembly had decided to
debate the President's judicial appointments and the
resulting fall out that day even though parliament is not
supposed to debate matters under review by the judiciary.
However, the uproar was so great there was no way to avoid
debating the matter, he said. In addition to the
Parliament's reservations on the matter, protesters from the
legal fraternity also came out into the streets to
demonstrate against the decision. The media coverage of the

ISLAMABAD 00000383 002 OF 002


situation was rife with portrayals of the latest political
crisis as a "Clash of Titans," with the judiciary and the
executive on a "collision course" to political disaster. The
day of the announcement, there were even rumors floating in
the media of the possibility of Martial Law being imposed as
a result of the latest crisis.


6. (C) By February 15, the GOP's resolve to defend its
judicial appointments already seemed to be waning. That day
in the National Assembly, Gilani while talking tough about
the need to avoid a &catastrophic8 clash between
institutions and the need for each to stay in its lane, also
seemed reconciled to the strong possibility of this issue not
going the GOP's way; he reportedly stated in Parliament that
the government would accept any decision handed down by the
Supreme Court on the issue of the judicial appointments.
Then the very next day, Gilani showed up at a reception
hosted by CJ Chaudhry in honor of retired SC Justice Khalilur
Rehman Ramday, with the two all smiles for the cameras as if
to reassure the Pakistani public that the there was no real
crisis, seemingly paving the way for the GOP's eventual
capitulation.


7. (C) Comment: President Zardari clearly miscalculated the
backlash he would receive from his judicial appointments,
and, as a consequence, he will again come out weakened by
this latest debacle. At a time when his popularity and
credibility are so very dismal, Zardari can ill afford such
political mistakes. Furthermore, this latest political
crisis is emblematic of what appears to be the current state
of Pakistani politics, with the now regular intervals of
political crises that give the impression of imminent
collapse of the political order. However, the politicians
seem to manage to pull back from the brink just in time.
Nevertheless, one has to wonder about the impact of such
repeated political crises on the overall political system,
which seems only to further weaken the current set-up and
appears to leave it more susceptible to the influence of
non-democratic forces. End Comment.
PATTERSON