THE explosions recently caused by two legislative measures have greatly intensified the tussle for power in Pakistan that the prospect of a general election had revived. Regardless of the merits of the two bills and the arguments advanced by the contending parties, the situation apparently suits both sides as it limits the political debate to a narrow area and diverts public attention from the overarching issues of democratic revival. For the same reason, the premises of the new confrontation do not suit the people.

The first shot in the current battle was fired by the Frontier Province’s MMA government when it defied its erstwhile promoters by steamrollering its Hasba Bill through the provincial assembly for the second time. The second explosion was caused by the federal government’s defiance of conservative clerics’ opinion by going ahead with legislation aimed at extending some relief to women.

Before taking stock of the broader political situation a brief look at the measures in contention will be in order.

The row over the Hasba Bill started in the summer of 2003 when the draft prepared by the provincial government was objected to by the governor. The Council of Islamic Ideology (CII) was consulted. But the Council’s advice against going ahead with the measure, as it was considered violative of the Constitution and liable to abuse, was ignored and the bill was rushed through the assembly.

The matter was referred to the Supreme Court for opinion. The Supreme Court declared that many provisions of the bill (sections 10,12, 23, 25 and 28) violated the fundamental rights guaranteed in the constitution and its Article 175, and that the proposed legislation envisaged the setting up of a parallel judicial system and would deny citizens their right of access to justice. The governor was advised against assent.

In the revised Hasba Bill now adopted by the Frontier assembly the provincial government has tried to meet the Supreme Court’s specific objections. The powers and duties of the Mohtasib have been somewhat diluted. His power to “protect and watch the Islamic values and etiquettes”, to watch the media and ensure that it upholds Islamic values, and to forbid government employees from acting against Shariah have been deleted. Likewise the clauses in the section on his special powers have been reduced from 26 to 18. The bar to judiciary’s intervention in matters before the Mohtasib has been removed and the section investing the Hasba law with overriding effect has also been dropped.

Whether these changes fully meet the Supreme Court’s objections may be left to the august court to decide. However, the affair has exposed flaws in the briefs of the Frontier and the federal governments both. The former has tried to legitimise an illegitimate expedition by scaling down its cost to ordinary citizens. The main cause of public concern was not, and is not, the amount of soil sticking to the turnip but the rotten state of the turnip itself. That concern cannot be removed by juggling with the provisions of a measure that is unnecessary and misconceived, which will involve abuse of law and belief both, and which seeks to sanction official interference with an individual citizen’s right to private belief and opens the way to an inquisitorial order.

On the other hand, the federal government invites indictment for seeking extra-political solutions to political issues. The contradiction in its attempts to take cover under the provisions of a Constitution it has scarcely respected is obvious. The judiciary cannot always be expected to save governments from the consequences of their political follies and their misadventures in the realm of ideology.

The other measure, described as Protection of Women Bill, is in simple words an attempt to reduce the havoc caused to criminal jurisprudence and the Shariah by Gen. Zia. While foisting the Zina ordinance on the people he had capriciously put in it several provisions after taking them out of the Penal Code. The most significant of these provisions related to rape. These offences, except for the offence of adultery, have been restored in the Penal Code and the expression ‘zina bil-jabr’ has been expunged from the Zina ordinance. Thus, rape will now be tried under the PPC and the punishment will be death or imprisonment for 10 to 25 years, while gang rape will be punishable with death or imprisonment for life.

Other offences transferred back to the PPC are: kidnapping, abducting or inducing a woman to compel her marriage etc; kidnapping or abducting in order to subject a person to unnatural lust; selling a person for purposes of prostitutions, etc; buying persons for purposes of prostitution, etc; cohabitation caused by a man deceitfully inducing a belief of marriage; enticing or taking away or detaining a woman with criminal intent. All references to punishment under Tazir have been deleted from the Zina ordinance. An addition to this ordinance is a bar to conversion of the offences of Zina into fornication or vice versa. Some amendments have also been made in the Qazf ordinance of 1979.

The offence of illicit sex (zina) stays in the Zina ordinance and is liable to hadd penalty but the procedure has been changed. Proceedings will begin only on a complaint to a court which will examine the complainant and four Muslim, adult, male eye-witnesses. If the presiding officer is of the opinion that sufficient ground exists for proceeding further, the trial of the accused will begin with the issue of summons to him, otherwise the complaint will be dismissed.

Another change, made in the text after the Select Committee report, is the addition of a new provisions: fornication, earlier described as lewdness. Cognisance will be taken by a court on complaint and the court will determine whether a case prima facie exists on the basis of statements by the complainant and two-eye-witnesses. Punishment is imprisonment for five years, and a false accusation will carry the same punishment.

The government case is that hudood laws should apply only to zina and qazf as these offences have been mentioned in the Quran. “Any offences not mentioned in the Quran and the Sunnah, or for which punishment is not stated therein, is Tazir which is a subject of state legislation”, the government says in the statement of objects and reasons. This is the crux of the compromise the government has offered to its estranged friends in the MMA. Unfortunately compromises such as this one never work.

Quite understandably, therefore, the government has fallen between two stools — the rational lobby (including women activists) that has been campaigning for repeal of all Hudood ordinances, especially the Zina ordinance, on one side, and the orthodox religio-political elements that put these Zia contrivances beyond any mortal’s intervention, on the other side. The debate between the two sides is not likely to end for decades. At the moment we are concerned with the exploitation of the two bills for political profit, particularly in the context of the coming general election.

The religio-political lobby is seeking a licence to rule Pakistan because it claims to have served Islam by adopting the Hasba Bill and resisting the Women’s Bill. Apart from the fact that this claim is questionable on both counts, challenging the regime or fighting an election solely on a religious slogan can never be considered a democratic exercise. Democratic politics, governance and election involve people’s right to choose from more than one option while this right is incompatible with belief. Thus, all that the politicos sporting political colours are offering the people is replacement of one brand of authoritarianism with another, and a life-time is not enough to determine which of the two versions is deadlier than the other.

The faction in power is seeking perpetuation of its hold on power on the strength of its being “progressive”, “moderate” and “enlightened”, because it claims to have reduced oppression and exploitation of people, especially women. For one thing, the qualities claimed by the regime, even if correctly claimed, have often been found to be tactical devices rather than values rooted in conviction and commitment. And, for another, no amount of state benevolence can legitimise a denial of the people’s right to manage their affairs.

The British showed a lot of progressivism and enlightenment but that could never confer legitimacy on colonial rule. Ayub Khan enacted the Muslim Family Laws Ordinance, admittedly a radical measure at that time, but that did not entitle him to perpetuate dictatorship.

The only moral of the tale of two bills is the need to purge politics of claptrap. The state’s crisis of legitimacy has deepened. The hardships the people face are becoming increasingly unbearable. There are serious doubts about the existing institutions’ capacity to maintain rule of law. Arms are being used to deny federal units’ rights. The external policy is a shambles. These are matters that need to be debated for choosing the pathfinders to representative and responsible governance.

When you take out your sheep for grazing you need reason and not belief, said the second Caliph. So let it be.

IN February 2003, a month before the US-led invasion of Iraq, the Saudi foreign minister, Prince Saud al-Faisal, warned President Bush that he would be “solving one problem and creating five more” if he removed Saddam Hussein by force. Had Bush heeded his advice, Iraq would not now be on the brink of full-blown civil war and disintegration.

One hopes he won’t make the same mistake again by ignoring the counsel of Saudi Arabia’s ambassador to the United States, Prince Turki al-Faisal, who said in a speech last month that “since America came into Iraq uninvited, it should not leave Iraq uninvited.” If it does, one of the first consequences will be massive Saudi intervention to stop Iranian-backed Shia militias from butchering Iraqi Sunnis.

Over the past year, a chorus of voices has called for Saudi Arabia to protect the Sunni community in Iraq and thwart Iranian influence there. Senior Iraqi tribal and religious figures, along with the leaders of Egypt, Jordan and other Arab and Muslim countries, have petitioned the Saudi leadership to provide Iraqi Sunnis with weapons and financial support. Moreover, domestic pressure to intervene is intense.

Major Saudi tribal confederations, which have extremely close historical and communal ties with their counterparts in Iraq, are demanding action. They are supported by a new generation of Saudi royals in strategic government positions who are eager to see the kingdom play a more muscular role in the region.

Because King Abdullah has been working to minimise sectarian tensions in Iraq and reconcile Sunni and Shia communities, because he gave President Bush his word that he wouldn’t meddle in Iraq (and because it would be impossible to ensure that Saudi-funded militias wouldn’t attack US troops), these requests have all been refused. They will, however, be heeded if American troops begin a phased withdrawal from Iraq. As the economic powerhouse of the Middle East, the birthplace of Islam and the de facto leader of the world’s Sunni community (which comprises 85 percent of all Muslims), Saudi Arabia has both the means and the religious responsibility to intervene.

Just a few months ago it was unthinkable that President Bush would prematurely withdraw a significant number of American troops from Iraq. But it seems possible today, and therefore the Saudi leadership is preparing to substantially revise its Iraq policy. Options now include providing Sunni military leaders (primarily ex-Baathist members of the former Iraqi officer corps, who make up the backbone of the insurgency) with the same types of assistance — funding, arms and logistical support — that Iran has been giving to Shia armed groups for years.

Another possibility includes the establishment of new Sunni brigades to combat the Iranian-backed militias. Finally, Abdullah may decide to strangle Iranian funding of the militias through oil policy. If Saudi Arabia boosted production and cut the price of oil in half, the kingdom could still finance its current spending. But it would be devastating to Iran, which is facing economic difficulties even with today’s high prices. The result would be to limit Tehran’s ability to continue funnelling hundreds of millions each year to Shia militias in Iraq and elsewhere.

Both the Sunni insurgents and the Shia death squads are to blame for the current bloodshed in Iraq. But while both sides share responsibility, Iraqi Shias don’t run the risk of being exterminated in a civil war, which the Sunnis clearly do. Since approximately 65 percent of Iraq’s population is Shia, the Sunni Arabs, who make up a mere 15 to 20 percent, would have a hard time surviving any full-blown ethnic cleansing campaign.

What’s clear is that the Iraqi government won’t be able to protect the Sunnis from Iranian-backed militias if American troops leave. Its army and police cannot be relied on to do so, as tens of thousands of Shia militiamen have infiltrated their ranks. Worse, Iraq’s prime minister, Nouri al-Maliki, cannot do anything about this, because he depends on the backing of two major leaders of Shia forces.

There is reason to believe that the Bush administration, despite domestic pressure, will heed Saudi Arabia’s advice. Vice-President Cheney’s visit to Riyadh last week to discuss the situation (there were no other stops on his marathon journey) underlines the preeminence of Saudi Arabia in the region and its importance to US strategy in Iraq. But if a phased troop withdrawal does begin, the violence will escalate dramatically.

In this case, remaining on the sidelines would be unacceptable to Saudi Arabia. To turn a blind eye to the massacre of Iraqi Sunnis would be to abandon the principles upon which the kingdom was founded. It would undermine Saudi Arabia’s credibility in the Sunni world and would be a capitulation to Iran’s militarist actions in the region.

To be sure, Saudi engagement in Iraq carries great risks — it could spark a regional war. So be it: The consequences of inaction are far worse. —Dawn/Washington Post Service

The writer, an adviser to the Saudi government, is managing director of the Saudi National Security Assessment Project in Riyadh and an adjunct fellow at the Centre for Strategic and International Studies in Washington. The opinions expressed here are his own and do not reflect official Saudi policy.

AS the saying goes, there is always a place at the top for a hardworking person with dedication — notwithstanding the fact that it may be crowded and some reach it through unfair means. The late Ghulam Ishaq Khan commenced his career at the lower rungs of the civil service in 1940 and climbed the ladder of success.

He specialised in finance-related subjects and served as irrigation secretary and in the federal planning commission. He was appointed chairman, Wapda, federal finance secretary, cabinet secretary, governor, State Bank of Pakistan, and after the separation of East Pakistan, secretary-general of defence.

President Zulfikar Ali Bhutto appointed General Ziaul Haq out of turn as chief of army staff. Ziaul Haq and Ghulam Ishaq Khan developed a good equation. On July 5, 1977, martial law was declared in Pakistan and Ishaq Khan was inducted into the cabinet as finance advisor and then as finance minister. He was elected senator, then became chairman of the Senate. General Ziaul Haq wanted to hold further elections also on a non-party basis but Ishaq Khan voiced his support for party-based polls for the promotion of democracy. Ziaul Haq died in August 1988 and, as provided in the restored Constitution of 1973, Ghulam Ishaq Khan took over as acting president. Later, party-based elections were held and he became president.

Ghulam Ishaq Khan was an efficient bureaucrat-turned-politician. His main attributes were that he was simple, honest, hardworking and a strict follower of rules and laws. He was well-read, knowledgeable and soft-spoken. His most outstanding quality was that he was not corrupt.

Since I belonged to the judiciary, I watched his actions and decisions with regard to judicial matters when he was president of Pakistan. I recall that in 1989, differences arose between President Ghulam Ishaq Khan and Prime Minister Benazir Bhutto over the appointment of judges to the superior courts. A summary was sent by the prime minister to the president recommending the appointment of four chief justices for the high courts as acting judges, and the induction of one member of bar as a permanent judge in the Supreme Court.

The president did not feel satisfied with this arrangement. He modified the proposals and appointed the chief justices as permanent judges and the judge in the Supreme Court as acting. The summary modified by the president was published in the media but the prime minister directed the federal ministry of law not to issue the notification as that ministry functioned under her control. For want of notification, the appointments did not take effect.

Attorney-general Yahya Bakhtiar took the matter to the Supreme Court for a decision on the moot point of whether or not, in the appointment of judges, the recommendation of the prime minister was binding on the president. The judgment of the Lahore High Court that a special provision in the Constitution prevailed over a general provision had led to confusion. The differences between the president and prime minister became so acute that at one point Mr Sharifuddin Pirzada stood up in court and produced a letter of authority from the president to appear on his behalf. Mr Bakhtiar took the stand that as attorney-general he appeared for the federal government representing both the president and prime minister.

Later Mr Bakhtiar resigned but his resignation was not accepted by the prime minister. The situation worsened. In the meantime, ministers Aitzaz Ahsan and Iftikhar Hussain Gilani intervened and the matter was settled outside the court on the grounds that the appointment of judges would be made with the mutual consent of both the president and prime minister. The summary cleared by the president was accepted and notification was issued by the ministry of law. The matter was disposed by the Supreme Court without judgment on merits.

Later, in another case, the Supreme Court decided that the recommendation of the prime minister was binding on the president in the appointment of judges as required under Article 48 of the Constitution. This is how the controversy was resolved and the stand taken by the president was vindicated that constitutional appointments should be made with proper care and caution.

Gen Zia restored the Constitution in 1985 with the Eighth Amendment including Article 58(2)(b) empowering the president to oversee the functioning of the government of the prime minister and dismiss the same if the government is not functioning according to the Constitution. This provision is disliked by politicians who are directly elected by people and don’t want an indirectly elected president to dismiss prime minister’s government.

President Ghulam Ishaq Khan used Article 58(2)(b) and dismissed the Benazir Bhutto government in August 1990. The courts upheld his order. Fresh elections were held and Mian Nawaz Sharif took over as prime minister. Things went smoothly in the beginning but later differences arose between the president and the prime minister. Finally, President Ishaq Khan dismissed the government of Prime Minister Nawaz Sharif under Article 58(2)(b) of the Constitution on August 18, 1993.

In fact, one day earlier, the prime minister appeared on TV and criticised the president on the ground that he was conspiring with disgruntled elements to destabilise his government. A petition was filed in the Supreme Court against the order of dismissal of the government. A full bench of 11 judges heard the advocates on behalf of the parties.

The courtroom was jampacked with supporters of the dismissed Prime Minister Nawaz Sharif. The president appointed Mr Balakh Sher Mazari as caretaker prime minister. Mr Sharifuddin Pirzada was appointed as foreign minister and proceeded abroad for medical treatment. Justice Muhammad Rafiq Tarar, who was on the bench, was very busy collecting like-minded judges discussing with them the proposed result of the case through consensus-building measures. The proceedings were given prominent coverage by the print and electronic media. The conclusion could be predicted by the manner in which questions were asked in the court.

On May 26, 1993, a short order was announced with the majority of 10 judges holding that the order of dismissal was not sustainable and the government of Mian Nawaz Sharif was restored. One judge dissented and held that the order was proper and since there was a wide gulf between the president and prime minister, the restoration would not last long.

In about a month’s time, the situation again became explosive and the prime minister wanted to appoint Mian Azhar as governor but the president did not agree. The federal government wanted to use the Rangers to take physical possession of the Punjab Secretariat and Governor’s House but this was resisted by the provincial government of Mian Manzoor Wattoo. President Ishaq Khan also did not cooperate if there was a procedure lapse or if things were not done under the law. The army did not want the Rangers to be used against the police and it was clear that the country was heading for another breakdown of the constitutional machinery.

With such a background, Chief of Army Staff General Abdul Waheed Kakar had to step in. He was conscious of the fact that in the presence of Article 58(2)(b) there was no room for martial law or a military takeover. Secondly, he was himself not ambitious and wanted to retire after his term was over. It was not proper to allow the president to dismiss the government of the prime minister again, particularly after it had been restored by the Supreme Court. In such circumstances, President Ghulam Ishaq Khan proceeded on leave. Mr Wasim Sajjad, chairman of the Senate, took over as acting president. A resignation was obtained from Mian Nawaz Sharif and Mr Moin Qureshi was appointed caretaker prime minister. Elections were held within 90 days.

Since the prime minister resigned, nobody approached the court for redressal of grievances. According to the results of the elections, the Pakistan Peoples Party headed by Ms Benazir Bhutto was returned to power. Ms Bhutto requested the relevant quarters to be allowed to have a president from her party and that request was granted. Later, her government was dismissed for the second time by a president nominated by her.

From this account, the lesson to be learnt is that as president, Ghulam Ishaq Khan played a proper role and performed his duties strictly according to the law and did not yield to pressure and acted according to the Constitution, the law and his conscience. He rose from the ranks and performed his duties with dignity and honour and did not do anything for which his country had to suffer. He will be long remembered as a good civil officer and as a president who did everything within the bounds of laws and did nothing regrettable.

The writer is a former chief justice of the Supreme Court.