An uncertain transition

THIS has been a truly tumultuous week, in some ways unprecedented even in Pakistan’s drama-filled history. General Musharraf doffed his uniform on Nov 28. The next day he was sworn in for a fresh term as president and soon thereafter, announced that the state of emergency imposed by him on Nov 3 would be lifted on Dec 16.

Musharraf’s words and demeanour showed the reluctance with which he surrendered his uniform, which he had called his ‘second skin’. At his swearing-in ceremony, he claimed success for his efforts to introduce genuine democracy in the country. But his anger and disappointment at both domestic and foreign reaction to the emergency was palpable from the manner in which he lambasted the Chief Justice, accusing him of ‘conspiracy’ and chided western ambassadors for “unrealistic obsession on your part to expect us to ape your form of democracy, human rights and civil liberties.”

Obviously, the general had forgotten that Pakistan was achieved by politicians, led by Mr Jinnah, a lawyer-politician, who chose to pursue a constitutional struggle, rather than engage in violence or force.

The president’s adherents hailed this transition as ‘historic’, while major foreign powers, especially the US, expressed relief at it. Bush remarked that the general, who he had described as a ‘man of his word’, had lived up to his expectations, adding that Musharraf was “truly somebody who believes in democracy”! That must be news to the Pakistanis, even though they showed no sign of excitement, continuing to exhibit apathy and resignation at the president’s ‘election’.

What explains this phenomenon? For one, during the past eight years, the regime has shown scant respect for the laws, while engaged in destruction of institutions, even those that had functioned well for many decades, encouraged nepotism and cronyism on a large scale and then finally, the army chief carried out a virtual coup against his own regime.

With the country facing neither an external threat nor internal disturbance, nor even a natural calamity, it became apparent that the emergency was meant to prevent the Supreme Court from pronouncing on a number of major issues that would have affected the president (and the prime minister), that neither was prepared to countenance.

While Musharraf may have good reasons to be satisfied with managing another term, the whole process was so controversial that serious questions of legitimacy will continue to haunt it for decades. He may claim that he is a strong believer in democracy and that he has worked strenuously to ensure the establishment of genuine democracy in the country. But recent events have proven that Musharraf’s concept of ‘guided democracy’ has been flawed.

He should have known that while democracy has many variants, none allows any individual to do whatever and whenever he pleases. Democracy means free elections, free speech, fundamental rights and an orderly transfer of power, at periodic intervals. Moreover, even with untrammelled powers, the regime failed to give the nation either peace or stability, or even strengthened the country’s ability to pursue the war on terror. Musharraf’s second coup, in fact, had negligible impact on the government’s war on terror. Its impact was instead felt most painfully by members of the civil society, thousands of whom were locked up, while the radicals had a free run of the place.

Pakistan faces many challenges. Two are particularly critical. One is the battle against religious extremists and the other is the struggle against authoritarianism. When the West says that the general is the best bet against extremism, it is being either naïve or disingenuous. Extremism cannot be challenged by an authoritarian regime, but only by a civilian democratic government, that will first ensure consensus amongst the masses in favour of its policies, before embarking on new initiatives.

To the regime’s disappointment, the current crisis also failed to impress any of the general’s many foreign admirers, with the Commonwealth, western leaders, the media and political analysts, all calling for a swift end to emergency. But more disturbing is that domestic polarisation and strife has renewed fear among observers that the country could “begin to crack up along ethnic lines”, as observed by well known political scientist, Stephen Cohen, who was critical of Bush for having supported Musharraf for so long, without conditions. He was of the view that the US should have “pressed for a broadening of Pakistani politics much earlier and failing to do so means that Washington has no means but to ride the Musharraf tiger to the end—whatever that may be.”

However, the Bush administration’s primary interest in Pakistan is to ensure order and stability, under a moderate but strong government. This arises from Pakistan’s pivotal role in the war on terror, which while earning Musharraf kudos in Washington, has created havoc within Pakistan. Nearly one hundred thousand troops are engaged in combat operations against local and foreign militants, while large swaths of the country are in a state of insurgency, with suicide bombers now striking even in urban centres.

Thus it was no surprise to learn from US media that with Pakistan in a state of turmoil, the Pentagon was engaged in an exercise to overhaul the system of massive US military aid by more directly tying the payments to Islamabad’s success in combating the terrorists and that this would require a detailed accounting of how Pakistan was spending the roughly one billion dollars it gets in annual payment.

Now as regards Pakistan’s nuclear assets, US newspapers have reported that Washington has sponsored war games that simulate capturing Pakistan’s nuclear weapons to prevent them from falling into the wrong hands. Various options have also been examined to achieve this objective. This was followed by another suggestion that the US military should work jointly with the Pakistan army to protect the nuclear weapons if there was a ‘political meltdown’ in Pakistan.

While it is true that influential circles in the West continue to harbour deep suspicions and misgivings about Pakistan’s nuclear weapons, it is not enough for government spokesmen to dismiss these reports as irresponsible. We have to acknowledge that they also constitute evidence of our failure to convince Washington that adequate institutional and technical safeguards have been established to ensure the safety and security of our nuclear assets.

The failure of another long spell of military rule has demonstrated not only the complex nature of problems confronting Pakistan, but the inherent inability of unrepresentative leaders to govern a developing country, deeply divided by ethnic, linguistic, sectarian and class considerations. The demand for democracy should not be dismissed as the expression of romantics, or rejected on such spurious grounds as illiteracy of the masses, or the corruption of the politicians. Lest we forget it, it was the failure to ensure democracy that contributed to irreversible alienation in former East Pakistan.

In fact, the current crisis has renewed fears among political analysts that unless there is a genuine transformation in the country, wherein the people are empowered both politically and economically, and all the constituent units of the federation come to believe that they are equal stakeholders in the destiny of the country, Pakistan could be facing ‘an uncertain future’.

Desperate moves

IN a desperate move to win new allies, former Sindh chief minister and provincial president of Pakistan Muslim League-Q, Dr Arbab Ghulam Rahim, recently travelled to Larkana, a PPP stronghold and hometown of the Bhutto family. There he held a meeting with the provincial chief of Jamiat Ulema-i-Islam, (JUI) Dr Khalid Mehmood Soomro, to invite the religious party to join the official bandwagon against the Pakistan People’s Party.

The meeting took place at a madressah where Dr Rahim must have felt at home as he is known for participating in religious gatherings of the Tableeghi Jamaat, which shares a typical Islamic ideology with the JUI and Islamic revivalists around the world. As Dr Rahim is a self-proclaimed follower of Dr Jam Sadiq, he may even have used his Tableeghi credentials to convince Dr Soomro to help him block the way of a ‘woman’s rule’ which the Thari politician deems as a curse for society. Enlightened moderation, isn’t it?

It is not clear whether Dr Rahim accomplished his mission or not as Dr Soomro has remained tightlipped about the outcome of his negotiations with Dr Rahim. But the PML leader has since been counting the JUI among the PML allies in Sindh and has even ‘offered it a share in the upcoming provincial coalition’.

Whatever satisfaction Dr Rahim may draw from his Larkana visit was marred by neighbouring Sukkur where five local PML leaders, led by Qasim Shah, former special assistant to Dr Rahim, announced their decision to quit PML and join PPP. To add insult to Dr Rahim’s injury, he had to bear the taunts of the leaders of the Mahar group, whose rivalry with Dr Rahim dates back to the ouster of Ali Mohammad Mahar from the chief minister house in Karachi and Dr Rahim’s subsequent entry into it. At a press conference, the Mahars accused their rival of having destroyed the PML. They maintained that Qasim Shah and his group have always been loyal to Khurshed Shah of the PPP who took advantage of his ties with Dr Rahim and got Qasim Shah inducted as his special assistant to make inroads into the provincial administration.

The echoes of criticism against Dr Rahim were also heard in the adjacent district of Khairpur where Pakistan Muslim League Functional leader Pir Sadaruddin Shah Rashidi, a minister in Dr Rahim’s cabinet, and bureaucrat-turned-politician Imtiaz Shaikh, whose dream to become chief minister was shattered first by Ali Mohammad Mahar and then by Dr Rahim, had been lashing out at Dr Rahim in public meetings. Both accused Dr Rahim of narrow-mindedness and charged him with obstructing their efforts to develop their constituencies.

This trading of charges and counter charges shows lack of coherence among the political forces confronting the PPP in Sindh. But during and after elections, they can be expected to set aside their differences to resist the onslaught of the popular party. At that stage they may be joined by nationalists like G.M. Syed’s grandson, Jalal Mehmood Shah, and Mumtaz Bhutto, whose sole motivation in politics these days seems to be his hatred for Benazir Bhutto. This main beneficiary of this infighting will be the Muttahida Qaumi Movement, the party representing the urban populace of the province.

In the meantime, PPP candidates have been complaining about the partiality of the provincial caretaker government, non-cooperation of the election commission and the use of the state machinery by PML candidates, particularly in Dadu and Thatta districts. PPP candidates have particularly been irked by the transfers and postings in the police department and the judiciary despite a ban on new appointments that was imposed after the election schedule had been announced. But it has chosen to remain silent on the secretive recruitments of hundreds of candidates in different departments of the Sindh government, including education, police and health.

The recruitment of thousands of school teachers on political basis and in violation of merit and government rules and regulations has created resentment among tens of thousands of candidates who had appeared in written tests and interviews for the jobs. But even the PPP has failed to raise a voice over the issue as its attention has been focused on election activities. But this has betrayed its lack of concern on basic issues that really affect the people.

First things first

IT was heartening to see Benazir Bhutto and Nawaz Sharif finally sitting together. The formation of a joint ARD-APDM committee is a positive step. The committee is to agree on a minimum charter of demands that must be fulfilled before the opposition parties participate in the elections.

Naturally, the primary agenda of the opposition parties is to ensure an atmosphere where free and fair elections are possible. But such elections are impossible without the restoration of the superior judiciary to the status quo prevailing on Nov 2. There can be no transition to democracy without an independent judiciary.

Consider this. The Election Commission of Pakistan (EC) is responsible for the overall organisation and conduct of elections. It comprises a retired Supreme Court and one serving High Court judge from each province. The actual nomination and polling process is supervised by District Returning Officers (DROs), Returning Officers (ROs) and Assistant Returning Officers (AROs). Serving district judges, additional district judges and civil judges perform the duties of the DROs, ROs and AROs respectively. The Chief Justices of the provincial High Courts have administrative control over the subordinate judiciary. They control their appointments, transfers and promotions.

Any challenges to an RO’s acceptance or rejection of nomination papers are to be decided by election tribunals constituted for that purpose. These tribunals consist of High Court judges. Any post-election disputes relating to the qualifications of candidates or allegations of unfairness or rigging are decided by election tribunals constituted for this purpose by the EC. Challenges against decisions of these tribunals end up before the provincial High Courts and finally the Supreme Court.

Every stage of the election process is conducted and supervised by the judiciary. Given our electoral system, it is naïve to say that the issue of restoration of judges can be taken up after the elections. There can be no free and fair election unless and until all the superior court judges are restored. You cannot put the cart before the horse. Independent judges supervising the electoral process are the only guarantee of a free and fair election.

On Nov 3, the Chief Justice of Pakistan, the Chief Justices of two provincial High Courts and the majority of Supreme Court and High Court judges were sacked. The Chief Justice and his brethren Supreme Court judges are under house arrest! It is impossible to over-emphasise the enormity of this action. It has no parallels in Pakistani or any other country’s history.

What was their crime? They were hearing a petition against Musharraf’s re-election as president. They had not even decided the case! When judges of the Supreme Court can be summarily dismissed and placed under detention for daring to simply hear a petition against Musharraf; how can any judge in the future ever act independently? How can a man who worries for the safety and future of himself and his family ever go against the wishes of the establishment?

My concern for the management and editorial staff of this newspaper prevents me from expressing my views on the few judges who decided to take oath under Musharraf’s Provisional Constitution Order (PCO) superseding their original oath to preserve, protect and defend the Constitution. They enjoy their offices while their erstwhile brother judges are forcibly confined to their houses.However, I am told that I can express my ‘respectful, temperate criticism’ of their judgments. I see no point in doing so. The legal fraternity does not and will not recognise PCO judges and their judgments. There is no point in petitioning courts whose independence is not guaranteed. The handful of lawyers who ignored the Pakistan Bar Council’s boycott call, have already witnessed the utterly predictable results of their impetuosity. Likewise, political parties who rush to elections without first securing the restoration of an independent judiciary to supervise the electoral process will regret their haste.

Hundreds of district judges, additional district judges and civil judges throughout Pakistan were transferred with immediate effect by the incumbent de facto Chief Justices of the provincial High Courts just prior to the announcement of the election schedule. Again I am restrained from commenting upon the reasons behind this unprecedented step. But whatever the reasons may be, it is these lower court judges who will perform the functions of returning officers during the entire electoral process. And the EC has refused to reverse such transfers.

I am an optimist but I’m not a fool. The elections will be rigged. The ruling parties shall be returned with a thumping majority in parliament. Should PPP, PML-N, ANP and other opposition parties decide to participate; they shall be left marginalised. The most optimistic outcome could be a hung parliament where legislators will be left with a personal choice between packing their bags and going home or ratifying legislation that will preserve and grant indemnity to the usurper and his actions. And given the absence of an independent judiciary, there will be no legal recourse open to them.

The picture should be clear with the rejection of the nomination papers of the Sharif brothers. Understandably, they consider it futile to challenge the rejection before the current election tribunals and superior courts.

If the opposition parties are serious about securing free and fair elections with a level playing field; they must place the demand for the full restoration of the judiciary to the pre Nov 3 position on the top of their list. This demand has to be non-negotiable. In the absence of a full restoration of the judiciary; any concession granted by Musharraf’s regime shall be meaningless.

The continuing protests, in the legal community and beyond, are taking their toll on the regime. The judicial machinery has come to almost a complete standstill. The growing consensus between the opposition parties is an endless source of concern for the establishment. The desperation of Musharraf’s regime is evidenced by the number of leaks and feelers being sent out in every direction. Despite the Supreme Court’s declaration that the issue of sacked judges is a past and closed transaction; it is being conveyed unofficially that the regime is amenable for a partial restoration of judges.

The legal fraternity shall not brook compromises on this issue. We shall not become party to the regime’s attempt to pick and choose between judges and pack the courts with the more pliable ones. Each and every judge must be restored unconditionally. Our stand is based on principles and is not about individuals.

Now the judges who refused to take -- or were not given -- oath under the PCO are men who believe in the rule of law. They took a principled stand for the independence of the judicial institution at great personal cost. If they are restored, some may decide that the larger interest of an independent judicial institution requires them to make further personal sacrifice. But that choice must be theirs and theirs alone.

I have closely known the Chief Justice of Pakistan, Iftikhar Mohammad Chaudhry, Chief Justice of the Sindh High Court, Sabihuddin Ahmed and the Chief Justice of the Peshawar High Court, Tariq Pervez. I can testify to their honour and lack of vindictiveness.

But it is for the establishment to decide whether it prefers a course of confrontation that will plunge the nation into turmoil or whether it wishes to restore Pakistan’s stability by submitting to the rule of law.

The writer is a former president of the Supreme Court Bar Association, who is currently hospitalised following renal failure during his detention in Attock jail.