The executive & the judiciary

THE government’s dilly dallying over the reinstatement of some sixty members of the superior judiciary deposed on Nov 3, 2007 is hardly surprising if seen in the context of judiciary-executive relations in Pakistan.

Throughout the country’s history, the executive has sought to control the judiciary and divest it of its independence — and has done so with success. The courts have been made to put their seal on the most controversial executive actions including abrogation or suspension of the constitution. The judges who do not succumb to pressure from the executive are penalised in one way or another.

The direction of judiciary-executive relations was set by the verdict of the federal court, now the Supreme Court, in The Federation of Pakistan versus Moulvi Tamizuddin. In 1954, the governor-general dismissed the first Constituent Assembly and the dismissal was challenged by its president, Moulvi Tamizuddin in the chief court, now the Sindh High Court. The chief court declared the dismissal of the assembly invalid. However, headed by Justice Muhammad Munir, the federal court reversed the chief court’s decision on technical grounds. The federal court’s verdict is arguably the most important judicial decision in the history of Pakistan. Had it upheld the verdict, the history of parliamentary democracy and judiciary-executive relations in Pakistan would have been altogether different.

The second test of the independence of the judiciary came when the apex court was called upon to adjudicate on the legitimacy of the 1958 martial law regime in The State versus Dosso and Others. The court, again headed by Justice Munir and drawing inspiration from Hans Kelsen’s doctrine of necessity, held that a successful revolution or coup d’etat was an internationally recognised method of changing a constitution. Hence, the Laws (Continuation in Force) Order 1958 promulgated by Gen Ayub constituted the new legal regime from which all legal instruments and institutions including courts derived their validity and legitimacy.

The judicial verdict had far-reaching implications; the most significant being that success was the only test of the legitimacy of a military coup and no judicial decision could make it illegitimate. Another implication was that the courts derived their authority from the new legal regime put in place by the chief martial law administrator and were therefore bound to uphold the supremacy of that regime. The decision was thus an invitation to future military adventurers to step in.

The decision in the Dosso case came in for sharp criticism from the apex court itself in Asma Jilani versus Government of the Punjab. The court observed that it was difficult to appreciate under what authority martial law could be proclaimed. By itself a military coup or a legal regime put in place by a military ruler was not legitimate. Rather they acquired legitimacy only when courts recognised them as de jure.

The Supreme Court landmark judgment created the hope that in future the judiciary would not put its seal on unconstitutional actions of the executive. However, contrary to that, in Begum Nusrat Bhutto versus Chief of Army Staff and Federation of Pakistan, the apex court again declared a military coup, this time by Gen Ziaul Haq, legitimate on the basis of state necessity and welfare of the people.

We all know how much the Zia regime worked for public welfare or safety of the state. But that is a different story. It is however pertinent to mention that an independent judiciary is essential for protecting public rights without which the notion of public welfare is meaningless. The Zia regime, true to its character, tried to put the judiciary in chain through various measures, the most infamous of which was the provisional constitutional order (PCO) 1981 under which the superior court judges who were not administered oath under the PCO ceased to hold their office.

The Supreme Court decision in judges appointment case (March 1996), represented a valiant attempt by the judiciary to assert its independence and free itself from the shackles of the executive. The decision ended the executive’s discretion in the appointment of the members of the superior judiciary. That is why the then PPP government had sharply criticised it. The row between the judiciary and the executive during the second Nawaz Sharif government (1997-99) is an ugly chapter in the constitutional history of Pakistan.

The crisis erupted when the government showed reluctance to elevate five judges to the Supreme Court on the recommendations of the Chief Justice of Pakistan. The prime minister was summoned to the Supreme Court on the charge of contempt of court. As contempt of court proceedings against him were in progress, a mob ostensibly at the behest of the government attacked the court and the judges had to run for their life.

The 1999 coup which brought Gen Pervez Musharraf at the helm was also indemnified by the judiciary, again under the doctrine of necessity. One of the judges who sat on the Supreme Court bench which validated the coup was Justice Iftikhar Muhammad Chaudhry, who was later elevated to the country’s highest judicial office. However, when the same Justice Iftikhar Chaudhry showed some independence, he was made a target of the executive’s whims.

Seen in the context of the traditional role of the judiciary in Pakistan, the Supreme Court’s verdict against the suspension of the constitution on Nov 3, 2007 was nothing less than historic and easily the boldest of all judicial decisions in Pakistan. The judges who delivered that verdict along with more than fifty other members of the superior judiciary were deposed by the military ruler. Reinstatement of these judges should have been the priority of an elected government.

However, that has not been the case. Though our judiciary may have changed, the executive has not and remains ill-disposed towards the idea of an independent judiciary. All said and done, the rule of law is impossible without an independent judiciary and without the rule of law, democracy cannot take root nor can state safety or public welfare be ensured.

hussainhzaidi@gmail.com

Unlearnt lessons

POLITICS 101: compromise good; confrontation bad. It’s a lesson our democracy brigade refuses to learn. The complaint that the long march should have achieved something more is really code for wanting to give the government a black eye.

If a frenzy had been whipped up on Parade Avenue, parliament had been stormed and the damn politicians had been taught a lesson, the long march would have been a success. But the marchers dispersed peacefully without getting their way, leaving the march a dismal failure and an exercise in futility.

In Pakistan, if you think you are right then you must get your way. Trouble is everyone seems to think that they are right. Living to fight another day, perhaps even another battle, is for the weak, the gutless, or worse, the collaborators. Was the long march a success? Yes, without a doubt. It’s a pity few are willing to acknowledge the fact.

Five years ago, on Feb15, 2003, ten million people gathered in sixty countries to protest against the impending invasion of Iraq. London saw a million people gather in Hyde Park; a million and a half turned out in Barcelona; Rome witnessed three million on its streets; and Australia half a million. They were protesting against the relentless drumbeat of war emanating from the White House which climaxed in shock and awe a month later.

In comparison with the Iraq war, the dismissal of Chief Justice Iftikhar and his band of judges is small hat. Yet the anti-Iraq war protesters disbanded peacefully at the end of the day, and were stronger for it. The protests have gone down in history as an awesome show of dissent. Patrick Tyler, chief correspondent of the New York Times, famously declared that there may be two superpowers on the planet: the US and world public opinion.

Or take a look at the blasphemy law here in Pakistan. It is an odious law, jealously guarded by the mullah brigade. The law is bravely opposed by human rights activists and the few good people amongst us. Forget constitutional imbalances and illegitimate power, the blasphemy law is, literally, a death sentence. But nobody opposing the law is talking about storming parliament or cuffing the law minister for not revoking it.

Somehow opposing the lawyers’ movement elicits vitriol that exceeds anything thrown at the Iraq war and the blasphemy law. I got an earful from a protagonist of the lawyers’ movement. I didn’t know how many articles of the constitution were affected by the 17th, 8th and 5th amendments. I didn’t know how many missing persons the Supreme Court was looking into and hadn’t read the court record. I didn’t know that the Charter of Democracy wasn’t effectively dead after BB played footsie with Musharraf. My command, or lack thereof, of the minutiae of the constitutional package rendered anything I have to say on it wrong.

My sin: suggesting that no charter, declaration or constitutional package was relevant to what the politicians would ultimately do. And that the constitution’s position on coups, judges, prime ministers and treason is irrelevant when a man in uniform wants to get his way.

Another lawyer — with degrees from Yale, Harvard and Cambridge — claimed, after a little prodding, that a bit of mayhem on the streets of Islamabad in front of the cameras would have put real pressure on the government.

The law is not a joke. It is serious business and requires dedicated study. Neither is the entire Pakistani constitution a joke. But the fact is that this particular round of constitutional rejiggering was precipitated for no other purpose than to create a specific set of circumstances to keep a specific set of people out and another set in. That’s it. There was no higher cause or logic. If you want to call it a charade, go ahead. It is. And a farce, a joke and daylight robbery. Musharraf and company are dancing on the graves of jurisprudence.

It is galling. Worse, it is galling to be told that fighting beyond a point is bad. Why should one side play by the rules when the other side — the Musharrafs and their collaborators — refuses to do so? What good is working for stability if the other side is creating instability? Well, that’s how a democratic system, even a highly developed one, works. You can’t pummel the other side into obeying the rules. You nurse your wounds, you campaign, you lobby, and you lie in wait until the next elections.

The fact is that a space has been created in Pakistan for indirect civilian rule through elected representatives — your regular, vanilla flavoured democracy the world over. The whys of this reality are for political scientists to debate. It could be that the military is suffering from governance fatigue. It could be that the people have found their democratic voice. It could be that the Americans want it. It could be all of the above. Whatever the reason, there is no doubt that this space exists.

We have had relatively fair elections; we have a National Assembly that is relatively representative of the electorate; we have two genuinely popular political parties that dominate the assembly; and we have two leaders of those parties who are unquestionably in control and are talking to each other. The lawyers genuinely want to add another element to this reasonable mixture: a relatively independent judiciary.

We would all like to add the elements of democracy as quickly as possible and must constantly look for opportunities to do so. But the issue is also one of trajectory — are we headed in the right direction or not. And while undiluted, unconditional reinstatement of the judges is a course, it isn’t the only course. In fact, given the vehemence of Musharraf and the reluctance of Asif, it’s sure to send the trajectory of democracy into a downward spiral. And there is no doubt that waiting in the wings are people who can inflict new lows and new forms of damage on the country.

The lawyers have expressed what most Pakistanis feel: a deep unease about who we are and what we have achieved. But those mocking the lawyers for failing and counselling them to raise the stakes aren’t pinning their hopes on democracy; they are hoping for change brought about somehow, anyhow. Eight years ago the winds of change blew in Musharraf; today it is Chief Justice Iftikhar. But why not the politicians?

John Lennon saw Vietnam and just wanted to give peace a chance. For eight years, ugliness has stalked this land. Can’t we just give politics a chance now? n

cyril.a@gmail.com

Minus one, minus two

CHIEF Justice Iftikhar Mohammed Choudhry has put up a memorable fight. Starting from his first resolute ‘no’ to President Gen Musharraf, his defiance was the ‘spark that lit a prairie fire’ — as Mian Ijazul Hasan put it in June 2007 while visiting the US as Benazir Bhutto’s spokesman gathering support for her return and for the lawyers’ movement.

His observations shared with some expatriates in Boston remain valid today: “The rallies demonstrating support for the suspended chief justice have been spontaneous,” he said, “People flock on their own in the thousands to see and hear the chief justice, and most remarkably, there has been no violence or damage to public property.” The lawyers’ recently concluded long march also bore all these hallmarks.

Plus, “for the first time the higher judiciary is working with the people rather than with the army or the bureaucracy. And right now there is only one issue in Pakistan — the restoration of the chief justice.” A year later, this observation too remains valid, despite all the changes since then, including the transformative experience of Benazir Bhutto’s assassination. The year that was saw a new hope dawn when the Supreme Court restored the chief justice to office, a decision Musharraf accepted even if reluctantly. Over the next few months, the superior courts were seized of several significant cases with the potential to deeply impact Pakistani politics. Some related directly to restrictions imposed by the military dispensation, like the right of an exiled politician to return and participate in politics, or police brutality on lawyers and journalists.

Moved by the families of the ‘disappeared’, the courts had since the summer of 2006 even begun to engage in a kind of ‘judicial activism’ that was rocking the status quo, shaking up the intelligence agencies and leading to the production of several missing persons in court. However, it is noteworthy that only after the elected government was installed did the courts —headed by the PCO judges — order the release of political prisoners like Safdar Sarki and Akhtar Mengal.

The superior courts were also hearing cases related to the National Reconciliation Ordinance that Musharraf promulgated on the eve of the presidential elections, clearing the way for Benazir Bhutto’s return to Pakistan without being arrested for the corruption charges instituted after she was ousted from power in 1996. The PPP reciprocated by abstaining from the presidential vote, allowing Musharraf to remain in office (heavily backed by Washington).

The ‘deal’ also paved the way for general elections and the subsequent transition to a democratic path that Ms Bhutto had long been arguing for. Whether or not there was substance to the charges, there were political motivations behind them (Ms Bhutto always noted that they were never proved in court).

Perhaps the most significant case before the courts related to petitions against the validity of Musharraf holding the dual offices of president and army chief. After he pledged to quit the army before starting a new presidential term, the court in a short order dismissed these petitions as “not maintainable”, enabling Musharraf to contest the presidential elections while remaining army chief. In its final judgment, the court may well have declared Musharraf’s presidential election invalid — a possibility neither he nor his supporters in Washington were (or are) willing to contemplate.

Before this could happen, the jittery president reneged on his end of the US-brokered ‘deal’, imposing emergency rule on Nov 3, 2007 and sending all those judges packing who refused to take fresh oath of office — an unprecedented two-thirds of them. Most were placed under house arrest. Leaders of the lawyers’ movement were imprisoned, and many suffered solitary confinements and harsh conditions that resulted in severe illnesses to some of them, such as Munir A. Malik and Justice (retd) Tariq Mahmood. Many, including the chief justice, were released only after the new government took oath.

Whatever good Musharraf did (like the revival of women’s seats and joint electorates) now pales before his short-sighted and downright dangerous refusal to face his obvious unpopularity and illegitimacy (which even those who are working with him concede) and step down.

The peaceful lawyers’ movement over the past year was instrumental in convincing Washington that there were other alternatives in Pakistan to their man Musharraf. Clearly, these alternatives had to be a political party. After elections ushered in a democratically-elected government, despite the pre- and post-election manoeuvrings, it was time for civil society and the lawyers to ‘hand over the torch’ to elected representatives, so they could hammer out the restoration issue constitutionally in whatever time it takes. This at least is the view taken by one faction of the pro-democracy camp.

Another faction (joined by others with dubious democratic credentials) wants street agitation to counter the Zardari-led PPP’s delay in its pledge to restore the judges. Interestingly, those who were in favour of boycotting the elections are also in the forefront of this agitation, apparently oblivious to the democratic potential that the elections have unleashed.

The government’s recently-announced increase in the number of judges appears to be part of a move towards restoring the ‘non-PCO judges’ — the sticking point appears to be the man who sparked the prairie fire. Those who have been keeping the pressure on regarding the judges’ restoration refuse to consider this possibility, citing the suffering that the ‘chief’ and his family have faced in months of incarceration and the tremendous symbolic position he now occupies.

The ‘chief’ himself is not willing to indicate that if restored, he would not resume office on the grounds that he has become too politicised for the position. There are related concerns about the sanctity of the judiciary having been compromised, given the recent activism and its elimination of the requisite distance between judges and lawyers — how are they to appear before each other in court?

The chief justice’s defiant ‘no’ to a uniformed army chief last year was admirable. His defiance today may prove disastrous in a situation where it is critical to support the coalition and ensure its survival, even at the expense of an individual. From the president, one can hardly expect any such magnanimous and wise gesture. But from the chief justice, such a unilateral and unconditional gesture could open the doors to a new era in Pakistan even if the president stubbornly clings to his position.

The failure of the coalition will throw us back into the lap of undemocratic forces who are only waiting for such an opportunity.

The writer is an independent journalist and documentary filmmaker based in Karachi.

beena.sarwar@gmail.com

Zimbabwe: cutting the losses

THERE is no Plan B. Morgan Tsvangirai was right to withdraw from the run-off presidential “election” in Zimbabwe on Sunday, because there’s no point in getting people killed when there’s no hope of a fair vote, but he has no more cards to play. South Africa is not going to intervene, nor is the Southern African Development Community, or the African Union, or the United Nations.

Another million despairing Zimbabweans will probably flee to South Africa, but there is not going to be a revolution in Zimbabwe, either. The people have no weapons, half the working-age population lives abroad, and the “security forces” are vigilant, well-armed and brutal. Violence has triumphed; President Robert Mugabe has won.

Thousands of Tsvangirai’s supporters have been kidnapped and tortured by Mugabe’s thugs since the campaign started, and 86 have been murdered already. Many more would have suffered the same fate if the election had gone ahead, and it would all have been for nothing. Mugabe was determined not to let the opposition win, regardless of what the voters did.

Whether this is genuine paranoia or merely low cunning, it lets the 84-year-old president justify the reign of terror he has unleashed against opposition supporters since he lost the first round of the election to Tsvangirai by claiming that it is “a second liberation war.” In wars, you can kill people who oppose you, and you are not obliged to count the enemy’s votes.

A lot of polling agents for the opposition Movement for Democratic Change have already been killed, and thousands have been driven from their homes in order to break the MDC’s organisation in rural areas. Mugabe’s strategy was clearly going to succeed: either he would win a majority of the votes because enough MDC supporters had been terrorised into staying home, or else he would rig the count later on.

He didn’t win the count the first time, in late March, because he foolishly allowed local vote tallies to be posted up at the polling stations, not realising that opposition activists would photograph them.

Whatever the real vote count was, Mugabe’s tame Zimbabwe Election Commission was unable to massage the outcome enough to give him a first-round victory. Most of the local voting totals were too well documented.

After a month’s delay, the ZEC released results showing Tsvangirai with about 48 percent of the vote to Mugabe’s 43 percent. That was enough to force a second round of voting, since a candidate had to get more than fifty per cent of the vote in the first round to avoid a run-off, but it was a huge humiliation for the liberation war hero who has ruled Zimbabwe since independence in 1980.

He richly deserved it. Mugabe has misgoverned Zimbabwe so badly that this once-prosperous country now has two million per cent inflation, and one-quarter of the population have fled to South Africa to find work and send money home to their families. Zimbabweans now die, on average, at a younger age than any other nationality in the world.

The ruling Zanu-PF elite presumably knows these statistics, but they cannot afford to care. If they lose power, they lose everything, for almost all their wealth was stolen and they have killed too many people. They would kill many more to keep it.

So Morgan Tsvangirai had to decide how many more lives he wanted to sacrifice in order to force Mugabe to steal the election openly. But how would that discredit Mugabe any more than the crimes he is committing right now? And what good does it do to “discredit” him?

Mugabe is a tyrant and the people who run his government and army are brazen thieves, but there will be no effective intervention in Zimbabwe from outside. The only African leader who has enough clout to do that is South Africa’s President Thabo Mbeki, but his goal is to usher his old friend Robert Mugabe into an honourable retirement while keeping Zanu-PF in power. Until Zimbabweans can give him that, they will be left to rot.

Zimbabweans are on their own, as they always really were. Tsvangirai and the MDC have belatedly realised that there is no point in hoping that justice will prevail — but they have probably not yet thought beyond that. Basildon Peta, the head of the Zimbabwean Union of Journalists, certainly has. This is what he wrote after Tsvangirai announced his decision.

”I hope it won’t be another long round of Thabo Mbeki’s timid mediation while Zimbabwe continues burning. The MDC must now do what it should do to rid Zimbabwe of this shameless criminal. The opposition party knows what that is, though I can’t print it here.”

Well, I can. It is revolution in the streets. But that is almost certainly not going to happen.

— Copyright Gwynne Dyer