Uncertainty in Pakistan

PAKISTAN is not a failed state. It is an uncertain state which can take any course — theocratic, despotic, semi-democratic or just chaotic. When I visited Karachi and Lahore a few days ago, I found hardly anyone who was optimist about Pakistan’s future. However, the country is not falling apart as is the general impression.

Different forces — religious, political and criminal — are competing among themselves for more space. In the short run, they are heightening fears and in the long run they are threatening the country’s integrity. Ultimately, the confrontation may well be between political forces and the extremists. The nation’s fate depends on the outcome.

The late Benazir Bhutto, who has become taller than her executed father Zulfikar Ali Bhutto, turned out to be prophetic. Her handwritten testament shows that she feared “for Pakistan’s future in the face of extremism and dictatorship”. Indeed, the extremists are present all over the country, including Lahore, Karachi and Islamabad. But they have not affected day-to-day life.

A bomb blast here or a stray killing there is a daily occurrence. But this is no longer the handiwork of the Taliban who seem to be observing a ceasefire after Islamabad’s undertaking not to disturb them in certain sensitive areas.

The real culprits are the Pakistani Taliban, the creation of successive governments, which at one time dreamt of having Afghanistan as their satellite to get ‘strategic depth’. They still have the support of the ISI and 35 per cent of the army men who are reportedly of a jihadi mindset. It has been reported that some of them did not fire in the midst of hostilities in Waziristan at the Taliban on consideration that they were Muslims.

The kidnapping of the Pakistani envoy to Kabul near Peshawar may not have been done by the Afghan Taliban. It may be a plot by the Pakistani Taliban to show their clout. My feeling is that the Pakistani Taliban spreading from the NWFP to other parts of the country are a real danger to the nation. They are extremists, the product of madressahs where they have been brainwashed. They look longingly at the Hizbul and other extremist organisations which were once a terror.

What is frightening is that they, with an appeal to religious sentiments, are gaining ground. There is none among the politicians to challenge them openly because of the fear of the mullah who can denounce them in mosques. “We are reaping what we have sown,” is the oft-repeated observation. This refers to the calculated efforts made first by the late Gen Ziaul Haq and then President Gen Pervez Musharraf to encourage the extremists so as to stall the liberals, and still there is their cry for democracy.

Unlike the extremists who have some strain of understanding running throughout their organisations, the politicians are a divided lot. They are fighting among themselves. True, all of them are fiercely agitating for the removal of Musharraf who stops at nothing to hurt or even eliminate them. But what they lack is unity of purpose.

The mere phrase, democracy, cannot bring coherence. They seldom meet and do not ever discuss a strategy to rescue the country from military rule. Their egos and claims verge on the point of arrogance. They would rather accept Musharraf than anyone from among themselves to lead. They hold their durbar, a feudal relic which Pakistan proudly retains. At the durbar, they pontificate about democracy and equality before an array of psychopaths and retainers. Feudalism is still too deeply entrenched in the country to allow the idea of equality to germinate.

The common man, groaning under the burden of rising prices and lessening incomes, is a confused and disillusioned spectator. That is the reason why he does not come out on the streets. He does not see anything for himself in what is going on except a change of masters. Religion may be opium but it gives him the promise of ‘a better tomorrow’ than today. He too wants Musharraf to step down, not because he is a dictator but because he has not improved his lot.

Again, the military has done little to relieve him from his greatest predicament: how does he send his children to school and at the same time sustain his family?

It is not that he does not get angry; he tends to be sectarian in expression because that is how he has been brought up in the atmosphere that has prevailed in Pakistan. There is a great divide. I was not surprised to find the people at Sind Club in Karachi singing Musharraf’s praises.

Yet, it was the common man who went wild in Sindh in the wake of Benazir Bhutto’s assassination. Railway stations were set on fire, costing the exchequer billions of rupees. Shops were looted and even police stations were attacked. There was no law; only disorder prevailed for three days.

Asif Ali Zardari, Benazir Bhutto’s husband and the interim leader of the Pakistan People’s Party (PPP), the largest in the country, justified violence as the natural fallout of the people’s anger over the assassination of their leader. It was like what Rajiv Gandhi said when 3,000 Sikhs were killed in Delhi in the aftermath of Indira Gandhi’s murder: When a big tree falls, the earth is bound to shake.

The vacuum that Benazir Bhutto’s killing has created is hard to fill. The unity of thought can do so. The PPP can provide an alternative. A person like Aitzaz Ahsan, who is under house arrest, can lead the party to implement its ethos of a left-of-centre society, with pluralism as its base.

He is also acceptable to Nawaz Sharif, leader of the second largest party, the PML-N. Aitzaz Ahsan led the lawyers’ agitation for the reinstatement of Chief Justice Iftikhar Chaudhry. The challenge to Aitzaz Ahsan is Zardari who, it is widely perceived, would like to be prime minister.

The post-election scenario is not a happy one. Rigging appears inevitable and may arouse the people’s wrath. Political parties are not in a position to check it. Neither Nawaz Sharif nor Zardari has the base which can quell disorder if it engulfs the country. I could see the gathering of a storm during my trip. The anger over Pakistan’s deficiencies is at present focused on Musharraf. He may step down if and when army chief General Ashfaq Kayani taps his shoulder and tells him to go.

This happened when General Yahya Khan asked General Ayub Khan, then at the helm of affairs, to quit. In that case, Pakistan will be back to square one and even the semblance of democracy may go. But this time, army rule may not go unchallenged. The public has had enough of it.

The writer is a leading journalist based in Delhi.

The Cinderella syndrome

THE other day I had a chance to see an Indian film, Aaja Nachlee. Besides the delicious Madhuri Dixit dance numbers, the story told between the lines was most interesting.

It was about an Indian expatriate’s venture to rebuild her village. In many ways it represents the perception of the upwardly mobile middle class from South Asia.

The script was simple. It talked about an Indian girl from a village who elopes with an American leaving behind her family and land. Once in the US, the American husband does not prove right and she is left with a daughter and a career in dancing. The twist in the story comes when she gets news of her dance teacher dying. This forces her to return to India. There she finds her guru dead and the dance school about to be demolished. Only she can save it from destruction, which she does. The film represents the Non-Resident Indian (NRI) phenomenon — a factor that is today critical in the story of India’s progress.

The NRI is a middle-class Hindustani living abroad who has escaped the oppression of poverty at home and made a fortune abroad. He has a sense of superiority and the ability to change the land of his origin. Madhuri Dixit, who plays the NRI, manages to wake the people out of their slumber and excites them into acting in the musical to save the town’s rundown dance school.

This is more than a film about one imaginary person. It is the story of the educated and upwardly mobile Indian from the middle class who has discovered himself and his capability to change his motherland. In the film, there is no mention of what the villagers want. According to the local politician, who is presented as a kind man, the villagers want a shopping mall but the NRI wants traditions to be kept as she sees fit. The actual life behaviour of NRIs or other expatriates is no different.

The non-resident citizen is truly a phenomenon that is not just limited to the Indians. You find it amongst other nationalities as well, including Pakistanis. The main difference between the two is of perception regarding their homeland. An average Indian expatriate looks at India and his own capacity as a class, like an adolescent woman would feel while discovering her own sexuality. She is excited. Initially shy, she grows more aggressive as she discovers more powers in her that have an impact on others.

For an NRI, like the educated middle class in urban India, the country is already a great power which will become greater with what this educated, often foreign-educated middle class, can offer. Most of the younger generation of this class are engineers or experts in IT, have access to global capital and international brands, and many have gone abroad for higher education.

The Pakistani of the same class is no different, except he feels angry with what he considers his country being short-changed by foreigners. The emphasis on democracy, the mention of terrorism and rape victims makes him highly uncomfortable. It gets worse when this Pakistani expatriate sees other Pakistanis talk about democracy, the military or human rights violations. Why can’t these argumentative Pakistanis leave the country alone to become an epitome of modernity and economic progress? After all, what’s wrong with the use of authority as long as it guarantees progress?

This educated middle class does not trust the common man to bring about the necessary political changes which would modernise the country and make it as sought after as India. This is not to suggest that all Pakistani expatriates think like this, but the bulk believe in the western notion of modernity and nationalism.

This Pakistani is no different from his Indian counterpart. They both have acquired a notion of hyper-nationalism according to which any discussion of critical issues is unwelcome. After all, things are bound to change when economic progress takes place and there is the wonderful trickle-down effect. A benign dictatorship or semi-authoritarian rule for them is the answer for taking the country towards modernity.

This particular kind represents the middle class which claims to be the harbinger and conduit of economic progress and modernity. In today’s world, these people have embarked on a plan to change the face of their country in partnership with global capital. So, why can’t India, Pakistan or Bangladesh modernise by bringing in multinationals or using some authority? Why think about alleviating the problems of the masses? And can’t the masses wait until benefits trickle down to them at some point? It doesn’t matter if millions of poor people are sacrificed at the altar of modernity.

A lot of them believe that democracy affects the efficiency of decision-making. In any case, the uneducated masses cannot make intelligent political choices. They tend to vote for the feudal lord and are not free to exercise the right of vote. This is also what Mr Musharraf meant when he spoke of the country not being ready for democracy.

Surely, politics in Pakistan is imperfect but feudalism is not just about the institution of traditional land owners as it also relates to the system of authoritarian relationships in which the behaviour of even seemingly liberal institutions and individuals is driven more by the exercise of power than consensus-building. The fact is that feudalism is no longer confined to land owners but has permeated modern organisations as well. The civil and military bureaucracy or even the private sector has similar attitudes as that of the lord of the manor. Unfortunately, segments of the educated middle class willingly condone authoritarianism as long as it is not of the land owner. They believe that a great leader, who can impose decisions and has a vision, will come like Cinderella’s knight in shining armour and save the country. Sadly, the political culture and system does not have the capacity to produce visionary leaders.

What the affluent classes do not understand is that people continue to vote for the same families and people not because they are half-witted or under the thumb of someone but due to their inability to get respite in their day to day problems without belonging to one power network or the other. More than the issue of problematic politics, people stay in these networks and do not seek political alternatives because the state system, especially its bureaucracy, does not function to provide respite to the common man.

The local thana and the patwari are meant to strengthen the bureaucratic polity which Pakistan has been for the past 60 years. This is not to suggest that the power of the feudal lord or the big landowners must not be challenged, but the issue must be put in the right perspective. The state system continues to feed authoritarianism and the politics of patronage.

This is not a general condemnation of the middle class. They bring progress mainly for their own benefit and to negotiate for greater space from the ruling elite and in the process create institutions. However, a systemic change can only happen through a painfully slow political process that might help to get rid of an authoritarian political culture. A knight in shining armour does not exist.

The writer is an independent analyst and the author of the book ‘Military Inc: Inside Pakistan’s Military Economy’.

ayesha.ibd@gmail.com

Institutions of democracy

TO understand the basic difference between democracy and dictatorship, what one needs is a thorough knowledge of modern-day political history and deep insight into its different aspects.

One may, however, often get confused and misled by political jargon and the outward forms of institutions of democracy.

Another confusing factor is the propensity of dictatorship to make itself plausible in the garb of democracy for which it resorts to all kinds of tricks to mislead the people.

The institution of elections is a good example of this phenomenon. But the electoral process is common to democracies as well as dictatorships. Be it Hitler’s Germany, Mussolini’s Italy or Mugabe’s Zimbabwe, elections are held regularly in these countries and with much fanfare.

The average turnout of voters there has also been more than what one finds in many countries of the West, including the UK and the US. Yet, these elections have neither made these countries democratic, nor have they ever been recognised as the genuine expression of the free will of the masses.

The basic facts that distinguish elections under a truly democratic set-up from those conducted under dictatorial regimes are as follows:

A democratic polity is characterised by the supremacy of the constitution and law. No individual is above the law, nor does he enjoy the right and privilege to interfere, amend or misinterpret the constitution and the law of the land.

Citizens enjoy the freedom of expression, organisation, gathering and holding rallies and the right of free debate on topics of national significance. Political parties are free to participate in the political process. They have a level playing field and equal opportunity for their members to present their programmes and achievements. The country’s media is free to provide the people the necessary information about various standpoints and divergent views.

The judiciary is free and equipped with the powers reposed in it by the country’s constitution. It can, thus, play its due role effectively to protect the basic rights of each and every individual, thereby eliminating the possibility of rulers transgressing their limits.

The election commission is independent and free from the administration’s control and is capable of discharging its constitutional duties fairly and impartially. The rules, regulations and administrative measures adopted for elections are transparent and beyond even a fragment of doubt.

Wherever there is a possibility of outside intervention and rigging in the election process, an impartial caretaker government can be established for an interim period.

Elections organised within the above five-point framework are held with dignity and confidence. Nobody doubts their legal and moral credibility. In case, however, the above framework is not available, then the entire process loses its validity and is reduced to nothing more than a gimmick and façade. People lose interest and are mere spectators in the formation of governments. The sanctity of the ballot box is lost and it loses its capacity to bring about peaceful political change.

There is no doubt that presidential and parliamentary elections are of prime importance and enjoy a pivotal position in a democratic dispensation. The entire political process revolves round them. That is how the transfer of power takes place and the country’s leadership is elected with popular consent.

The upcoming elections are unique in the history of Pakistan in the sense that no one within or outside Pakistan considers the process credible. One can easily evaluate the current election process in light of the above-mentioned five factors and find out that it lacks all of them. The whole process is seemingly flawed and all indicators point to a predefined result. In this scenario, each political party has its own reservations.

Even the candidates contesting under the banner of the Q-League are complaining of irregularities. The Election Commission has admittedly proved itself incapable. While all political parties, save the Q-League, at least once considered, rather, vowed to boycott elections, some have dared to really go for it.

The caretakers are terming the decision to boycott the election by the APDM as non-democratic and an attempt to create disturbance. The government has also declared ‘zero tolerance’ against those who push for an election boycott. But no one can claim that either the decision to boycott the election or the parties supporting this option are non-democratic.

It has been repeatedly asserted by the APDM that it demands nothing but a free, fair and transparent electoral process, conducted in the light of relevant rules and regulations and according to the provisions of the Constitution. While elections are inevitable for a genuinely democratic system, the political parties have every right to resist every attempt to rig them.

Today, the Pakistani nation is faced with a crucial test. A country that was established as a result of a popular ideological and democratic movement led by the great constitutionalist, Quaid-i-Azam Mohammad Ali Jinnah, has not been allowed to function as an ideological and democratic state by the legion of civil and military rulers.

Every ruler has considered himself to be indispensable, ignoring the fact that political stability does not depend upon individuals; it depends on institutions, traditions and established processes. The nation today does not aim at mere regime change but seeks a paradigm shift. An increasing sense of deprivation and alienation amongst the people has resulted in an indifferent approach to the electoral process.

The national press is repeatedly reporting the failure of the election campaigns to attract the masses, and electioneering in its conventional sense has not warmed up. The projected elections, if held as planned, would help only in lending strength to the dictator ruling the land and his coterie thus elected and would offer legitimacy to a fascist system.

The whole façade would sound the death knell for the supremacy of the Constitution, the rule of law, freedom of the judiciary and the cause of basic human rights in the country. Such a process is bound to throw the country into the cauldron of autocracy, political servility and lawlessness. Without challenging the rulers and forcing them to reform the whole framework constitutionally, legally and administratively, mere participation in these elections would lead to nothing but the negation of the principles of democracy and the rule of law. It would further strengthen the stranglehold of dictatorship round our necks.

The writer is a JI Senator.

Who can alter the Basic Law — II

THE mere inclusion of Articles 270-A and 270-AA in the body of the Constitution unequivocally demonstrates that the president’s power to amend the Constitution could be exercised and have effect only during the period of constitutional deviation.

This was conceded by the Supreme Court in the case of the military takeovers by Ziaul Haq and Pervez Musharraf.

Obviously, once the constitutional government stood restored, all legislative power, including the power to amend the Constitution, exercised by the CMLA/chief executive came to an end. Nevertheless, the amendments in the Constitution could not be allowed to continue of their own force and it is precisely for this reason that the above articles were incorporated in the Constitution.

If the power to make amendments in the Constitution had been made available to any individual by the Supreme Court on a permanent basis they would have had no need to insert the above articles in the body of the Constitution. It is a universally recognised principle that no constitutional provision can be treated as redundant.

Even in the Order dated Nov 23, 2007, it was categorically held that the Constitution remained the supreme law of the land. Albeit some parts thereof — para 4 (1 ) — stated that “the old legal order has not been completely suppressed but it is a case of constitutional deviation for a limited transitional period and the judges of superior courts are subject to accountability before the Supreme Judicial Council in accordance with the procedure laid down in Article 209 of the Constitution”.

Against this backdrop, the observation that those who have not taken the oath have ceased to hold their respective offices and therefore their cases were hit by the doctrine of past and closed transaction could only speak of a bar to their reopening during the subsistence of the period of deviation and no more.

It may be recalled that Article 270of the Constitution was inserted through the Seventeenth Amendment to confer constitutional validity to the removal of judges effected through the PCO of 2000. Indeed, a new clause (2) is sought to be inserted to constitutionalise the removal of judges under the PCO of Nov 3, 2007, through the President’s Order 6 of 2007 on Dec 14, 2007. But the aforesaid amendment can have no effect after the revival of the Constitution.

An attempt no doubt has been made to ‘validate’ the amendments made during the period of deviation by insertion of Article 270AAA through the constitutional amendment issued on Nov 21, 2007. It is, however, incomprehensible how a person taking an invalid measure could validate his own act. Keeping in view past history, such a provision could only be made by the Constitution-making body itself.

At the same time, it needs to be kept in view that in Zafar Ali Shah’s case as reviewed by the Supreme Court in the Wasim Sajjad v. Federation of Pakistan, it was held that any constitutional provision stipulating the removal of judges without recourse to the Supreme Judicial Council would impair the independence of the judiciary, negate the basic spirit of the Constitution and would be beyond the Constitution-amending powers of parliament. A view contrary to the above, held by an 11-member bench, has not been taken by a larger bench of the court so far.

The argument that the constitutional amendments made by the president have become effective and do not require any validation is ex facie fallacious. It is yet another crude and senseless attempt to revive a controversy which is both legally and politically dead. On the contrary, upon the revival of the Constitution all amendments made since Nov 3, 2007, ceased to have legal effect and all orders which could not withstand the test of constitutionality became inoperative. Only the executive will to enforce the supremacy of the Constitution is required.

Even the caretaker government could advise the president to do so, though it might not, for its own reasons. However, the constitutional crisis would remain unresolved from the standpoint of any political government unless an independent judiciary in accordance with the parameters laid down by the Supreme Court in the Al Jihad case (PLD 1996 SC 324) and Asad Ali’s case (PLD 1998 SC 161) is duly installed.

In the above cases, the court emphatically insisted upon meaningful consultation with judicial functionaries in the appointment of judges and seniority principles in the appointment of chief justices to ensure the independence of the judiciary from the executive.

Under the PCO, 13 out of 18 judges of the Supreme Court including the Chief Justice were removed and replaced by handpicked individuals. Restoration of an independent judiciary, therefore, must be a prime issue for the functioning of any parliamentary democracy worth the name.

The Order dated Nov 23, 2007, validating the Proclamation of Emergency and PCO, was passed by seven individuals each one of whom was a beneficiary of the latter, that is, one was appointed as Chief Justice and six as judges of the Supreme Court under the said instrument. Incidentally, while three of the four other judges of the Supreme Court who had taken the new oath were initially included in the bench they subsequently declined to participate.

The collective wisdom displayed in one’s own cause might be rare in judicial history and yet their lordships did not consider it proper even to issue notices to judges whose cases were declared “past and closed transaction which could not be reopened”.Again, they categorically held that judges of the superior courts were accountable before the Supreme Judicial Council and could only be removed through the procedure laid down in Article 209 of the Constitution. Yet they sought to validate the removal of their colleagues in defiance of the mandate of the Constitution, the binding precedents of the court and their own judgment.

(Concluded)

The writer is a retired judge of the Supreme Court of Pakistan.