Founders, martyrs, keepers

IT should have been a founding anniversary that vindicated. But vindicating the democratic transition into the PPP’s eager hands is not apparent in good governance though they try hard with demos and promos.

Unfortunately, there is more to managing a front-line state in crisis than marketing a brand. And it is sadly true that a brand which lets down the logo loses its niche.

Democracy-friendly commentators tend to forbear from sharp criticism; forgetting that relevant criticism is far more constructive than false praise or kind silence. Spin, whitewash, selectivity and self-censorship for the media are recommended for fear cogent criticism could substantiate the hateful case for authoritarian interventionism.

Indeed it could; but so could a government’s culpability or inadequacy. Where may people turn for damage control if, for instance, aggressively dysfunctional democratic governments erode legislative and judicial independence, renege on consensus or use methods in coalition politics no different from a dictator’s?

Its self-congratulatory 42nd birthday makes appropriate occasion to look at where the years have taken the PPP. Kudos to it for survival. But it is only too easy to ask whether in the process of evolutionary survival it has become a different species. Yet, it sticks to the rhetoric of yesteryear and, even more perilous, ignores the growth in civic consciousness. Pakistan is a disconcerting mix of things that have changed and things that have not; and an exiled or jumped-up leadership is not getting it right: read the slogans and look at the images commemorating the party in power that punctuated Karachi’s eerily silent or terrifyingly aflame early-December streets. Partisans need a reality check.

ZAB founded a dynamic party to counter a hidebound presidential-military-bureaucratic combine. He was anti-establishment and so was the party. That was one of the reasons it always had a tough time despite its vote bank. Today the party is as ‘establishment’ as they come and has a tough time because of its vote bank’s demands and expectations. And what of its grassroots that weathered the Zia blight and sprouted forth, strong yet again, just a year ago on Oct 18, despite having been so scorched and blackened by party conduct in a tenure that few grieved when President Leghari invoked the Eighth Amendment? It would be hubris if the PPP deems them evergreen.

However the party may see itself, the people no longer see it as a victim of anti-democratic politics. In a post-Iftikhar Chaudhry Pakistan the PPP that has not reverted to the pre-Musharraf-emergency constitutional dispensation is a democratic joker. Insult to injury, a proclaimed de jure sovereign parliament looks de facto to the president. The presidency runs the federal government in a way that would make the late Ghulam Ishaq Khan salivate. But the PPP snapped its fingers at civil society’s intelligentsia and non-party commoners soon after the elections. And as stodgily as the oligarchs of yore it says people don’t give a fig about constitutional fig leafs: they live by bread.

And so between bloating benches, assigning contracts, renaming airports, roads and hospitals, the new government devises Benazir income-support schemes and subsidies. It does not pause to ask whether it has earned enough public confidence to make citizens regard the distribution of such monies as any less doubtful than Gen Zia’s zakat funding or Gen Musharraf’s food-stamp schemes for the hungry as in Mr Shaukat Aziz’s PML-Q. Meanwhile, parliament raises the salaries and perks of those who keep the stale system going. Dictators and encroachers need to finagle. A democratically elected government lacks that excuse. It is true that life with Article 58-2(b) may not perturb the masses, but life with cabinets 55 plus does.

The appalled silence that stifled Pakistan when Bhutto was hanged resonates to this day to give the party life. The destructive rage instantly manifested at Benazir’s monstrous assassination haunts the party quite differently. Her sacrificed life is used to whip up emotion. Playing with mass hysteria is a fascist not democratic tactic. Unlike the PPP-founding father who did not seek a deal with Gen Zia from his cell, the PPP’s lady martyr sat out years of self-exile without bridging the Gulf until the time was ripe to craft a deal with Gen Musharraf which precluded imprisonment.

America in the 1970s thought of making ‘a horrible example’ of ZAB. In 2007 it operated to use Benazir as a splendid example of democratic worth, suited to replace their man Musharraf. Did fidelity to the spirit of the vote bank rather than the spirit of the deal cost the PPP heroine her life?

The stupendous welcome she received upon her homecoming in October last year was crafted as a global media event. It climaxed in a horrendous bomb blast after which she was entreated to be practical about fears for her life and forgo mass contact.

Obviously that would have made her rather like any other media-carried paper politician. Her strength was the people. She also grasped it was not just fear of mayhem that was keeping subsequent jalsa turnouts comparatively disappointing and that she had to sync with popular endorsement of the lawyers’ movement. Might Pakistan’s democratic resurgence have turned too autonomous given Benazir’s international standing and enhanced acuity?

After her elimination no one wanted to provide Gen Musharraf with an excuse to postpone the electoral tryst. Nobody wanted the PPP’s second-tier leadership to be seen engaged in a protracted intra-party power struggle, and if that meant Mr Asif Zardari taking the reins so be it. Even before her will was disclosed, Mr Zardari’s Pakistan khappay stance, public humility, conciliatory negotiation went down well. But after the elections Mr and now President Zardari is opting for personal consolidation and only as much national consolidation as serves party supremacy with himself at the head.

People wanted Gen Musharraf out because they were tired of arbitrary rule. They want a rule of law where the law is not so much an indemnifier of political misuse of power as protection for the people and their Pakistan from that misuse. Iftikhar Chaudhry matters not because of the PCO he took and the PCO he did not take or the possible favours sought for his son versus possible favours sought for Dogar’s daughter. He is undeniable because the concrete negation and deconstruction of Musharraf-style realpolitik with law is vested in the restoration of the pre-Nov 3, 2007 position. Nor will people be fooled by a parliament that restores after benches have been reassuringly stacked. The PPP’s leadership is making it clear it does not subscribe to judicial independence. The independent executive comes first.

Its parliamentary attitude and gubernatorial endorsements show the bad old desire to centralise power and make parliament a personalised seal. Legislation remains inseparable from presidential preference. The difference is that this time the president is not a COAS but a party’s co-chairman. Civil dictatorship may prove even more destructive of the social fabric than a military dictatorship. Some people sense that already. So must the PPP. It is time for it to bury its ghosts.

Beyond conspiracy theories

THE Mumbai massacre has been a shocking event for all civilised souls across the world, including those in Pakistan.

As is always the case, the search for responsibility began and, almost immediately, fingers were pointed at Pakistan. Equally promptly, denial followed from this end.

However, the world community appears to be accepting the Indian view and Pakistan is under enormous pressure from all quarters. The government has been aware of the gravity of the situation and the complete diplomatic isolation of the country. It has acted responsibly and has taken a series of measures on the domestic and diplomatic fronts to limit the damage.

Questions arise as to who could be responsible for this barbaric act and what could have been the motive. Three classes of conspiracy theories can be discerned. One, there is the Indian view that the perpetrators were Pakistanis and the attack originated in Pakistan. It is stated that Pakistan has been using non-state actors since the 1980s to forward its regional agenda in Afghanistan and Kashmir. In Afghanistan, their motive was to bring down the pro-Soviet, pro-India regime and to install a pro-Pakistan dispensation.

Post-2001 it is stated that these non-state actors have been operating with the support of rogue elements within the country’s intelligence agencies, meaning without official sanction. Their theatre of operation is now limited to Kashmir and to the occupying power, India, with the objective of bleeding India to the point of conceding Kashmir.

The second view is that the Mumbai attacks were executed by the Indian intelligence. India, it is said, has been unnerved by the sustained peaceful agitation for independence in Kashmir, aggravated by the sharp communal split in the held state. India’s claim that the Mumbai attackers had trained in camps in Azad Kashmir as well as implied threats that India could launch attacks on such camps are noteworthy in this respect. It is suggested that a successful Indian military operation in Kashmir would effectively exclude Pakistan as a party to the dispute and weaken the independence movement therein to enable India to force a political settlement on its own terms.

The third view is that the Mumbai operation was part of an Indo-Israeli-US conspiracy with the larger objective of denuclearising Pakistan. The immediate objective could be to prove to the world that the Pakistani security establishment is incapable of controlling the militant establishment which can hijack the country’s nuclear arsenal. If this is indeed the case, one can expect more such sponsored attacks.

The latter explanations may sound preposterous, given that half a dozen US and Israeli citizens and more than 100 Indians have been killed. This kind of modus operandi is, however, not unknown in the world of covert intelligence operations. Of course, it was necessary for the nature and scale of the attack to be audacious, the targets high profile and symbolic, and the death toll high if the desired ends were to be attained. The actual involvement of Pakistani nationals is irrelevant. Anybody in the world could have covertly hired any number of Pakistanis to carry out the operation for them.

Herein lies the catch for Pakistan. Of the above three scenarios, all of them may be true, none of them may be true, or some of them may be partly true. That, however, is not relevant. What is relevant is the fact that Pakistanis could have been hired by foreign elements. This implies that there are enough Pakistanis with the necessary ideological mentoring to be available for jihadist operations. And these jihadis do not emerge as individual products.

Clearly, there is an infrastructure with organisational, financial and operational resources to recruit, indoctrinate and train the jihadis. Clearly, such an infrastructure cannot exist and operate without an element of tolerance or support from powerful elements aligned to state agencies. Otherwise, how is it possible that sophisticated arms can be stockpiled in the centre of the capital city, Islamabad, enabling the ‘students’ of Lal Masjid/Jamia Hafsa to fight the Pakistan Army for days?

How is it possible that A.Q. Khan can engage in worldwide nuclear smuggling without the intelligence agencies deputed to protect him failing to discover his operations? How is it possible that hundreds of firearms are brought out and liberally used in clashes in Karachi and the intelligence agencies cannot identify the source and supply channels of such arms?

Apart from the bloody mayhem these outfits may or may not be causing in neighbouring countries, they have certainly torn Pakistani society apart.

Either the nation’s intelligence agencies are completely incompetent or totally complicit. If it is the former, then the country is in mortal danger. If a mere imam of a mosque can stockpile arms or if a high-security state official can smuggle sensitive material out of the country then it must be equally possible for an enemy country to smuggle in its agents and arms for internal sabotage in the event of a war. If it is the latter, then the criminal adventurism of the self-styled protectors of national interest is bestowing on the country international disdain and endangering its stability and security.

In the 1980s, the ‘non-state actors’ paradigm was used within the ambit of the US and western global strategy. Understandably, no aspersions were cast internationally with respect to the legitimacy of the means being employed. Of course, the paradigm was irresponsible and criminal then and is equally so now. The difference is that, in the current global scenario, US patronage is no longer available and this paradigm is simply unacceptable. The cost that Pakistan will have to pay for continuing such a course of action will be exorbitant.

It is likely that the stage can be set for US-led international forces to carry out an operation aimed at eliminating the presumed capacity to mount terrorist operations abroad — and to prevent nuclear weapons from falling into the wrong hands. Given, however, that India will be a partner in any such operation, an attempt will be made to disable our intelligence capability altogether. The implications for national security will be grave.

It would, therefore, be prudent for the country’s security leadership to undertake to renounce the highly counterproductive use of non-state actors as a policy tool and launch a full-fledged clean-up operation on their own initiative. An operation of some sort is currently underway. That is not sufficient. The leadership of jihadi organisations may appear fierce with their bushy beards and fiery rhetoric. However, a more potent danger is posed by their handlers. Pakistan’s security demands that these handlers be neutralised.

Clash between institutions

THE issue of granting extra marks to Chief Justice Abdul Hameed Dogar’s daughter by the Federal Board of Intermediate and Secondary Education (FBISE) has the potential to cause a conflict between parliament and judiciary.

It has been argued that parliament is a supreme and sovereign organ of the state and that no other institution, body or person can interfere in its functioning.

It is claimed that the National Assembly Standing Committee on Education probing the issue and examining the conduct of the officials of FBISE enjoys the powers of the Assembly itself and may summon any person for the purpose of inquiry, including the father of the beneficiary of extra marks irrespective of any public office he may hold. No court has the jurisdiction to interfere in the functioning of the committee.

It was in the backdrop of this assertion of sovereign status for parliament and its committees that a judge of the Supreme Court passed an ex parte interim order in chamber restraining the committee from continuing with its proceedings. Responding to the order the committee’s chairman reasserted the sovereign status of the committee and vowed to continue with his proceedings.

The first point that needs to be clarified is that under our constitutional structure, sovereignty does not rest with any single institution but with the people who have delineated the powers of each organ of the state through the constitution. Thus our legislatures including parliament only enjoy such legislative powers, privileges and immunities as are conferred on them by constitution and law. Likewise the executive and judiciary have their powers delineated by the constitution.

Article 66 of the constitution provides that subject to the constitution and rules of procedure there shall be freedom of speech in parliament and no member shall be liable to any proceedings in any court in respect of anything said by him in parliament. It also confers powers, immunities and privileges on parliament and its members including the framing of laws to provide for punishing those who refuse to give evidence or produce documents before a committee.

Article 69 of the constitution provides that the validity of any proceedings in parliament (committee) shall not be called into question on the ground of any irregularity of procedure and no officer or member regulating procedure or business shall be subject to the jurisdiction of any court in respect of the exercise of those powers. Article 68 prohibits a parliamentary discussion of the conduct of judges of the Supreme Court or high courts in the discharge of their duties. Article 175(2) of the constitution provides that no court shall have any jurisdiction save as conferred on it by law.

These provisions indicate the clear intent of the framers of the constitution that these co-equal organs of the state function strictly within their distinct spheres without interfering in the affairs of the other. However, no human construct can be forever immune from ambiguity. This applies to our constitution as well. By its very nature a strict delineation of powers between these institutions is impossible to articulate. Thus, the need for an authoritative interpretation of the constitution by a final arbiter.

Reverting to the present facts, the parliamentary committee was inquiring into the conduct of FBISE officials who had allegedly granted extra marks to Chief Justice Abdul Hameed Dogar’s daughter reportedly at his instance.

Strictly, the committee was not examining the conduct of Justice Dogar in the discharge of his duty as a judge, as this would be barred under Article 68. Indeed the allegation under probe was not the discharge of duty by a judge at all but the alleged misuse of his office.

It is true that the primary reason for the committee’s probe of the matter was the alleged role of Justice Dogar but such action, as alleged, could never fall within the protective ambit of Article 68. No person, however high his status, is above the law. Thus, the committee appeared fully entitled by law to conduct its probe regarding the facts, without infringing on Article 68.

The question is whether the restraining order is violative of Articles 66 and 69. From a plain reading of these provisions and an examination of judicial precedents, it may be argued that these provisions do not impose an absolute prohibition on judicial scrutiny.While members have immunities and privileges, these are limited and subject to exceptions. The ouster of the court’s jurisdiction envisaged in Article 69(1) is only on the grounds of irregularity of procedure. Immunity from judicial scrutiny conferred on the committee or its chairman under Article 69(2), though apparently without restriction, is not unlimited. Immunity depends on the legal conduct of the proceedings carried out in a bona fide exercise of powers. Even a law passed by parliament can be struck down by the judiciary if it is contrary to the constitution. This is the essence of the rule of law.

Though such situations may be rare, it is not hard to imagine cases where parliamentary functionaries referred to in Article 69(2) could be acting unlawfully, beyond jurisdiction or for mala fide reasons. To suggest a complete ouster of a judicial review even in such cases would be damaging of democratic norms.

History is replete with instances of conflicts between parliament and judiciary. The people are the ultimate victims of such power struggles. The weakening of either institution weakens the delicate balance of power so vital to the liberty of the people.The case examined by the standing committee was apparently within its domain warranting restraint by the judiciary. More so when the alleged conduct involved a judge of the apex court itself. Judicial statesmanship requires greater restraint in cases of personal or institutional interests of the court lest it appear self-serving. The grant of ex parte injunction in chamber for a date in office in this situation is unlikely to strengthen the confidence of the people in the impartiality, neutrality and independence of the judiciary.

That said, it must follow that respect for the rule of law lies not in the defiance of the court’s order but in seeking its revocation from the court itself. Ignoring or defying the order of the court would result in a mutually destructive clash. The committee should approach the apex court and request a hearing by a larger bench comprising independent judges whose verdict the committee would have no reason to doubt.

A case of neighbourly comedy

THE rising tensions and flurry of recriminations between nuclear neighbours India and Pakistan over the last few weeks have, perhaps inevitably, descended from the solemn and serious to the downright comic. The comedians in question being, of course, India and Pakistan’s duly elected representatives.

News of the two nations being on the brink of war because of a ‘hoax call’ is not just a little shocking. A caller claiming to be India’s external affairs minister Pranab Mukherjee was put through to Pakistan’s president Asif Zardari, and insisted that India would move militarily unless Pakistan moved against the militants immediately.

Now, the Pakistanis insist that the call was traced to an official number in New Delhi’s Ministry of External Affairs while the minister of that department denies making any such call. At 61, you’d think the two would act their age but there remains an element of the schoolboy — your word against mine.

Even more shocking, however, is the arrest by the Kolkata police of Mukhtar Ahmed, a man who was said to have supplied the Mumbai terrorists with SIM cards. Cut to a few days later, and Indian intelligence sources are saying that he was a ‘high-value undercover asset’ working with the police in Indian-administered Kashmir.

His undercover brief was to supply militants with SIM cards and then pass on the information to the intelligence services, so they could be monitored. But of course, the Indian police has bungled yet again, the identity of an undercover agent has been made public and the safety of his family has been put in grave danger.

Only a week ago, we were gripped by fear that the terrorist atrocity on India’s financial capital could trigger new furies across the arc of the subcontinent. Today, we stand at risk of having our sides split open with rip-roaring laughter at the sheer incompetence of both governments.

And if the terrorists wanted a welcome diversion from the pressure being applied on them in Pakistan’s northwest areas, they probably got a good chuckle at the expense of the subcontinent’s elected leaders, its policy mandarins and security personnel.

But the humour is dark, and tempered by a sense of alarm. The comedy of errors could easily have had grave consequences. Here lie two countries, with a combined population of one and a half billion people, standing at the brink of unreason and they are quarrelling about a phone call. Based on which they might have mobilised troops and gone to battle, much to the detriment of all of us.

What is the calibre of staff being employed in President Zardari’s office and in India’s Ministry of External Affairs anyway? It is impossible to believe that a single phone call cannot be placed and received correctly. And why isn’t there any communication whatsoever between the Indian police and intelligence services?

It is time India realised that being an emerging world power is not just about a rising bourse, sprawling software parks and a seat on the Security Council. It also means being able to protect your citizens effectively against terrorist threats and not embarrass them continually with myriad intelligence failures and administrative incompetencies.

Given all the brouhaha about India’s proficiency in information technology, it’s surprising that more innovative and advanced intelligence gathering mechanisms and databases have not been developed as yet to curb the threat from apocalyptic outfits of terror.

If the ideology of terror is that it works, then the ideology of security has to be preparedness for the worst possible scenario. But recent events have made a mockery of not only the intelligence agencies of both countries, but their civil services too.Escalating tensions need to be defused swiftly and dark comedy, however amusing, is not the answer. Now more than ever, we need real statesmen to step up to the plate and act with maturity, restraint and vision.

India and Pakistan are in this together, one cannot succeed while the other falters. But how they work together to handle this situation — publicly, politically, diplomatically — will be critical in defining their futures, and ours.

The writer is based in New York.

rakesh.mani@gmail.com