The fog of a legacy

SINCE Benazir Bhutto was assassinated on Dec 27, inevitably a lot of discussion has eddied about her legacy. Historian William Dalrymple, in an article in The Observer, has said that Ms Bhutto introduced a strange strand of democracy in Pakistan, which in essence was “elective feudalism” and “helped fuel the current, apparently unstoppable, growth of the Islamists”.

Abbas Rashid has called Ms Bhutto “a symbol of deliverance … committed to fighting the growing perils of extremism and militancy that threatened Pakistan …” These are rivalling countenances of Ms Bhutto obfuscating her real legacy. A common motif running through opinions of Ms Bhutto is the perception that her two governments were corrupt and yet another motif is that the main reason she was celebrated in the West was because she was seen as ‘one of us’ — western, modern, liberal and anti-Islamist — conducting western-oriented politics at the cost of the nation state’s.

Understanding Ms Bhutto’s legacy requires a deep understanding of Pakistani politics — as it stands, not what it ought to be. Pakistan is a feudal society where from the beginning the feudals have wielded power. Most people in Pakistan cherish feudal tradition pivoted around a family name, cohering and structuring a community. Of course, in an egalitarian society people should not blindly support a person just because of which family they happen to be born into. But this is the stark truth in Pakistan.

As historian Barbara Ramusack has shown through her work, the Indian princely states were stable societies because they established a system based on a patron-client nexus. The prince, and in this case the landlord, provided the client, the peasant or the labourer, with certain basic guarantees — life, food and shelter and in return the client provided support for the patron. Not too dissimilar from the classic version of a state’s social contract with its citizens.

This much is certain that the patron-client system will remain rooted until and unless there is qualitative human development and growth of the economically marginalised and dispossessed. Notwithstanding the corruption allegations levelled against Ms Bhutto, she maintained an enigmatic effect on countless Sindhis and rural Punjabis, and indeed the federation as a whole. That was in large part a result of her father’s brilliantly populist slogan, ‘Roti, kapra aur makan’, which she reintroduced for the recent campaign blitz, encapsulating the necessities many tens of thousands of ordinary Pakistanis were bereft of.

By renewing and reaffirming that slogan so integral to the idea of the Pakistan People’s Party, Ms Bhutto shrewdly tapped into the appeal of populism, reviving an elusive hope. A country with pervasive corruption has, with the exception of its founder, Mohammad Ali Jinnah, had many of its political animals associated with the awful C word. Hence, for a great number of Pakistanis, sadly but verily, corruption is not a yardstick for public support.

Terming Ms Bhutto ‘westernised’ and claiming that this in turn made her the ‘darling of the West’ is perhaps true. But when this aspect of Ms Bhutto is appropriated by her detractors, such as the loquacious Imran Khan, to downplay her grass-roots-level popularity, presenting a zero-sum game in which a pro-western mooring may come at the disadvantage of the nation state, then that points to a facile response to a far complex context.

While the shared academic experiences and social interaction Ms Bhutto had in Harvard and Oxford moulded her into a person considered ‘like-minded’ by her western colleagues — accepting the exigencies of great-power politics and making, at times, some controversial statements — that still fails to explain the Eucharistic bond between Ms Bhutto and the tens of thousands who welcomed her with roaring street parties in Lahore in April of 1986 and in Karachi last October.

History demonstrates that politics in Pakistan has always been one of charisma. Western values, outlook and sartorial sense are not obstacles to the public’s acceptance of a leader or politician in this country. Mr Dalrymple criticised Ms Bhutto’s lack of finesse in the vernacular languages, but in Mr Jinnah’s case the lack of finesse in Urdu was particularly acute and he could barely even string a sentence together in his native Gujarati.

Like Ms Bhutto, Mr Jinnah was vastly shaped by his education in the West and, arguably, was even more westernised than Benazir in his day and age. That did not in turn preclude a connection between Mr Jinnah and the larger public. The Muslim League, a failed party in the 1937 elections, swept the 1946 polls under the westernised Jinnah. Of course this is not to say that non-westernised people do not have an appeal in Pakistan. It is important to note, however, that the western element does add that extra touch of flair and charisma.

The morning after Ms Bhutto was assassinated, what struck us was that almost immediately everyone began referring to her as ‘Shaheed’, a martyr. This was not a title used by only her party; most people on news channels and even in the street were referring to her as such. Why? We realise that people are circumspect using the word because of its Islamic aura but in Pakistan, as elsewhere, the word’s meaning has evolved into the secular realm. In Pakistan, soldiers who die on the battlefield are conferred the status of ‘Shaheed’. When a soldier goes into battle, he knows that he might not come out alive but he goes in with the purpose of serving his country even with his blood.

Ms Bhutto’s heroic homecoming last October was pock-marked with two massive suicide bombings but she, to paraphrase Stanley Wolpert, remained the soil’s ‘dauntless daughter’ even after all these years abroad, cognizant of the cost she may personally bear. Ms Bhutto went unhindered on the campaign trail, never sure if assassins were shadowing her. She was finally felled by their bullets, haunting the nation forever with her sacrifice.

All this she did because she believed in democracy and its virtues for the oppressed and victimised. We are not arguing that she was right in all her policies but that she was sincere in her aim to serve the country and its people. Many professors and friends of ours, post 27/12, inquired from us as to why she put her life in danger knowing the threat. The answer is simply that she was committed to her cause which had been enshrined by her father in the 1973 Constitution — a democratic and welfare state that kept being derailed by long bouts of dictatorship.

She wished to help recreate that vision. She went into the election campaign armed with intelligence briefs knowing that she may not come out of it but she did it for her country, for our great country, just as Liaquat Ali Khan, Pakistan’s first prime minister, who was assassinated in almost the same place. That is why she is a martyr. Maybe things are coming full circle now. But her story is not over yet.

Razi U. Ahmed is a Lahore-based businessman and Yaqoob K. Bangash is a historian at Keble College, Oxford.

The flawed doctrine of necessity

ARTICLE 232 of the 1973 Constitution authorises the president to issue a proclamation of emergency if, at any time, he is satisfied that the security of Pakistan is threatened by internal disturbance.

However, the proclamation issued on Nov 3 was an unconstitutional and anomalous exercise of power in that the order held the Constitution itself in abeyance and was signed by Pervez Musharraf in his capacity as COAS.

The purported validity of this extra-constitutional regime is based on the Provisional Constitutional Order 2007 issued on the same day. The PCO, as amended, inter alia suspended fundamental rights and authorised the president to amend the Constitution and other laws.

The Oath of Office (Judges) Order 2007 was issued on Nov 3. About 60 judges of the superior courts were subsequently removed from office. A few weeks later the president amended the Constitution to introduce Article 270AAA which validates and affirms the Judges Order 2007 and all amendments in the Constitution.

In recent petitions challenging the emergency and the PCO, the Supreme Court validated the regime, considering the purported constitutional cover for the removal of judges to be a past and closed transaction. The court also authorised the president to amend the Constitution as he deemed necessary.

On Dec 15, President Gen (retd) Pervez Musharraf withdrew the emergency and the PCO. If the starting point of any Constitutional analysis is judicial recognition of the de facto extra-constitutional regime, predicated on the doctrine of state necessity, the mere revocation of the emergency and the PCO would only have the effect of reviving the Constitution with the provision for protection against the removal of judges, under Article 270AAA, still intact. The president now claims that only the next parliament can restore them.

In the seminal judgment in the case of Ex parte Milligan (1866), Justice Davis of the US Supreme Court observed that “The Constitution of the United States is a law for the rulers and the people, equally in war and in peace … the government, within the constitution has all the powers granted to it, which are necessary to protect its existence; as has been happily proved by the result of the great effort to throw off its just authority”.

In view of the penchant of our rulers to revert to extra-constitutional measures and the ingenuity of its legal draftsmen in holding the Constitution in abeyance rather than abrogating it, the observation of Justice Davis is a lesson every Pakistani must take to heart.

After the adoption of the Constitution in 1973, General Ziaul Haq in his military takeover in 1977 issued the Proclamation of Martial Law and the CMLA Order 1 of 1977 on July 5. Pursuant to the Order, notwithstanding the abeyance of the provisions of the Constitution, Pakistan was subject to any orders by the CMLA, to be governed, as closely as possible, in accordance with the Constitution. The president also issued the Revival of the Constitution Order 1985 (RCO), whereby Article 270A was incorporated in the Constitution. The Article validated all orders passed by the military. In spite of the validation of his extra-constitutional regime by the Supreme Court, the president prevailed upon the partyless parliament to pass the Constitution (Eighth Amendment) Act 1985 on Nov 11, ratifying all amendments made in the period of constitutional deviation to complete transition to the constitutional path.

In 1999, in the second period of constitutional deviation, Gen Pervez Musharraf did not declare martial law. He followed the same course by assuming the office of chief executive (CE) and first issued the emergency and the PCO on Oct 14. Pursuant to this Order as well, Pakistan was subject to any orders of the CE, to be governed as closely as possible in accordance with the Constitution.

Thereafter came the Legal Framework Order 2002 (LFO), which incorporated Article 270AA in the Constitution with the express purpose of validating all extra-constitutional orders and laws made by Gen Musharraf. And in spite of the validation of his extra-constitutional regime by the Supreme Court, Gen Musharraf also sought to manipulate parliament into passing the 17th Amendment Act 2003, thus ratifying and completing the transition to the constitutional path.

If the history of our constitutional deviations is a guide to the future, our present rulers will also, of necessity (no pun intended), finally attempt to secure ex post facto validation of all current extra-constitutional measures by the new parliament.

The major political parties, in part due to their own compulsions, have now decided not to boycott the elections. Civil society must proactively attempt to persuade the parties to resolutely refuse to validate the purported amendments to the Constitution. Without such ex post facto validation they will remain void ab initio, a nullity in the eye of the law.

All that is necessary to effect a restoration of the removed judges is for parliament to pass a resolution, by simple majority, rejecting all the purported amendments to the Constitution, including the Judges Order 2007, with retrospective effect on the following grounds: (i) the right to make amendments in the Constitution is the sole prerogative of parliament; (ii) the purported amendments to the Constitution are, per se, violative of Article 239 (requirement of 2/3 majority for amendments); and (iii) the purported amendments also violate a salient feature of the Constitution, namely independence of the judiciary which parliament is bound to protect and preserve.

In Achakzai’s case of 1997, the Supreme Court was of the view that “it would suffice to say that freedom bestowed upon the Parliament … does not include power to amend those provisions of the Constitution by which would be altered salient features of the Constitution”.

And in the Zafar Ali Shah case, the Supreme Court held: “If the Parliament cannot alter the basic features of the Constitution, power to amend the Constitution cannot be conferred on the CE of the measure larger than that which could be exercised by the Parliament. Clearly, unbridled powers to amend the Constitution cannot be given to the CE even during the transitional period even on the touchstone of ‘state necessity’”.

In the case of Ex parte Milligan, Justice Davis concluded that “No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of [the US constitution’s] provisions can be suspended during any great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false”.

The obligations of political parties

ASK any modern-day economist and he will tell you that institutions matter as much as capital accumulation and human development for economic progress and modernisation.

Pakistan has done poorly in all three areas. This is particularly the case in the area of institutional development.

The failure to develop institutions is not restricted to the domain of economics. It is also the case in several other fields of human endeavour, in particular in politics. That this is indeed the case was demonstrated vividly by recent events. A few days after the unfortunate and tragic death of Benazir Bhutto, her party — the Pakistan People’s Party — appointed her 19-year-old son as her successor.

Bilawal Zardari succeeded his late mother as the party’s chairman. It was said that Benazir Bhutto had left a will indicating that if anything happened to her the reins of the political organisation she headed should be handed over to her husband, Asif Ali Zardari. Mr Zardari chose to follow a slightly different route. He had the PPP high command appoint their son as the chairman. Mr Zardari was to act on behalf of his son. It was said that he would hold that position in trust for the couple’s oldest son until he completed his studies at Oxford where he is an undergraduate. Bilawal will then take over the command of the party his grandfather had founded nearly four decades ago.

In treating the PPP as if it were a fiefdom to which rules of democratic management don’t apply, the party leadership has forfeited an opportunity to develop a vital institution in the country. Ms Bhutto had said repeatedly that her main goal was to bring democracy to the country which had deviated from that path for decades. But it appears that she chose not to follow that course for her own organisation.

This is the third time that the PPP has followed dynastic principles to appoint the leaders of the party. After the death of Zulfikar Ali Bhutto from hanging in 1979, the party first chose Nusrat Bhutto, the slain prime minister’s wife, as the chairperson. Later she transferred that job to her daughter who not only assumed the party’s leadership but also did it for life. No elections were to be held to appoint the party’s leader for as long as she lived. Even in death she defied the very rules by which she wished the country to live.

But the PPP is not the only political organisation that has followed the course of dynastic politics. The Pakistan Muslim League headed by Nawaz Sharif also passed on the leadership to the former prime minister’s brother when constraints were placed on him about participating in politics. There was speculation that the party may be led by Begum Nawaz Sharif if, for some reason, he was not allowed to return to politics.

The Muslim League has also not held open elections to select the people who will lead it. The MQM is also led by a person who has not subjected himself to formal elections. The Jamaat-i-Islami is the only major party that selects its leaders by holding elections.

This was not always the case. The Muslim League that won Pakistan as an independent homeland for the Muslims of British India followed democratic principles in all matters. It not only renewed its leadership through elections. All major decisions were taken by putting them to vote.

It was the thorough domination of Pakistani politics by the feudal class that perverted the system from which it is still to recover. This serious aberration has to be taken care of. It is obvious that institutional reform of the political system is vital for Pakistan if it is to survive as a nation state. Pakistan also needs to develop its political institutions in order to maintain economic progress.

In late 2001 Clare Short, who was then the UK minister for development in the government headed by Prime Minister Tony Blair, invited me to write a report on Pakistan’s political development. She knew that I was an economist but her people turned to me to do that task recognising the interest my profession had begun to take in the building of institutions. Minister Short’s interest in the subject was due to the presence of a large number of people of Pakistani origin in her constituency.

I accepted that task and wrote a paper in association with the political scientist Mohammad Waseem. We made several recommendations. These included the need to develop a charter of responsibility for the country’s political parties. It was our conclusion that simply holding elections would not bring democracy to Pakistan. What was also needed was the development of institutions that supported democracy. Political parties were an important part of the institutional landscape.

We recommended that the political parties wishing to participate in elections must meet several conditions. They should hold elections to choose their leaders; they should maintain and publish their accounts; they should reveal the main sources of their funding; they should maintain proper offices in which their records should be available and kept current; and they should periodically review and publish their manifestos.

There were some other recommendations as well including an increase in the size of the National Assembly, the need to train members of the national and provincial assemblies in legislative matters, and greater devolution of authority to the provinces.

Waseem and I presented these recommendations to Minister Short and she recommended that we meet with General Pervez Musharraf. A meeting was arranged in Islamabad and I gave a detailed presentation to the Pakistani president. He liked most of what we had to say and suggested that we go public with our report. The British Council arranged three seminars for us to address, one each in Lahore, Karachi and Islamabad. I also wrote several articles for Dawn on the subject that were published in the spring and summer of 2002.

However, the recommendations concerning the political parties did not receive attention from the government when it announced its plans to hold elections in the fall of 2002. This is where the matter stands six years later. The way the PPP has managed the crisis resulting from the assassination of its leader suggests that there is little incentive for the political parties to become democratic in the way they manage their business.

The hold of feudal thinking on their operations and conduct has survived. The fact that the party was prepared to accept the will of the departed leader for determining succession, and the fact that the leadership has remained within one family, is an indication of the inability of the parties to grow on their own. If they are not inclined to do this themselves then change should be forced on them.

I suggest that the government should take the initiative and develop a code of conduct for political parties that include the suggestions Waseem and I made six years ago. Following this code should be the condition for participating in elections. If something like this is not done we will continue to ride the political roller coaster that has dominated Pakistan’s history for much of its existence.