Judges and public opinion

ON Sept 28, a six-to-three majority on a Supreme Court bench dismissed petitions challenging General Musharraf’s credentials as a candidate in the presidential election on technical grounds, declaring them to be non-maintainable.

A week later, the court dismissed a request to stay the presidential polls in similar petitions but directed the election commission not to notify the results until the court had ruled on his eligibility.

The Supreme Court’s action enabled Musharraf to run and win. It evoked an intensely adverse reaction from the general’s opponents. The verdict, they said, had come as a great disappointment to the nation; it had revived the disreputable tradition of Justice Mohammad Munir (Maulvi Tamizuddin and Dosso cases), and resurrected the infamous ‘doctrine of necessity’.

Some of the Supreme Court’s decisions during the last six months (notably restoration of the Chief Justice who had been made non-functional, Javed Hashmi’s release on bail, Nawaz Sharif’s right to return and live in the country) met many people’s aspiration and pleased them.

Even though this concord between the court’s judgment and the people’s wishes was merely a coincidence, certain quarters came to expect that it would continue. The court’s willingness to rule against the government in these cases was hailed as a reassertion of judicial independence. It was taken for granted that judicial independence necessarily entailed an anti-government predisposition. Needless to say, this was weird reasoning.

In a democracy, it is the function of certain institutions, such as the legislature and a cabinet of ministers, to heed public feeling or opinion on issues under their consideration. But that does not hold for the judiciary.

Courts are not put in place to cater to public opinion. Nor is it their function to enforce the rules of morality. They are to say what the law is and apply it, regardless of its ranking in terms of virtue or efficacy, in settling the issues that have come before them.

The Seventeenth and Eighth Amendments to the Constitution were bad law. They altered its fundamental character and thus distorted and corrupted it. Nevertheless, they form part of the Constitution as it now stands and must be followed until they are repealed.

The Constitution being what it is, a person may run for the president’s office if he is eligible to contest election to the National Assembly, which he is not if he holds ‘an office of profit in the service of Pakistan’ unless an act of parliament has exempted that office from the operation of this rule

Parliament did pass a law permitting General Musharraf to be chief of the army staff in addition to being president (The President to Hold Another Office Act of 2004). The issue of his eligibility would then seem to have rested upon whether this law had been validly made. The court could have gone either way, depending on its finding in this regard.

What exactly did the Supreme Court do? It did not pronounce on the validity of the law authorising General Musharraf to hold two offices. It did not say whether he was entitled to contest the election — with or without his uniform. Having heard this extended debate for two weeks, the majority on the bench decided not to take a position on these issues. It dismissed the petitions, saying that the case as initiated lay beyond the court’s original jurisdiction.

On Oct 17, the court will begin hearing the new petitions that challenge the general’s eligibility and we do not know what lies in store for the general.

Let us now address still another aspect of the matter. While he was the army chief, as well as the president, General Musharraf could order the nation’s armed forces to be deployed as he deemed fit, and he could order the various intelligence agencies to go after his detractors, and his orders would be obeyed. But once he has given up his army post, he cannot have the same leverage with the military and the intelligence agencies. After the new army chief has had the time to find his feet and inspect the lay of the land outside the General Headquarters, he will be guided by his own lights.

Much of the authority General Musharraf has exercised in the civilian sectors had been assumed arbitrarily in violation of the Constitution as it stood after the Seventeenth Amendment. The prime minister and the cabinet emerging from the next parliamentary elections will be under no compulsion to allow the president roles which the Constitution does not assign him. He will then be like an old tiger whose teeth have been pulled out.

That being the case, it would be dysfunctional for the opposition parties to spend their energies on ousting him. They have been organising street demonstrations to register their disapproval of his rule. Some of them got their members of parliament and provincial assemblies to resign their seats as a gesture of protest against his election.

It is not clear what these resignations accomplished. If the legislators concerned had remained in their seats and voted against the general, that action would have been just as strong, or even stronger, expression of their disapproval.

If Pervez Musharraf’s wings are clipped and he is reduced to the role the Constitution envisages for a president, why not let him be? His exposure to world politics and his connections with foreign governments, might turn out to be an asset. It would be far more productive for the opposition leaders to focus on the mechanics of the forthcoming elections. There is a good deal of domestic and external pressure for making them free and fair. The opposition leaders should lend their weight to the same end.

In preparing for the election they must think through the real issues facing the country and devise and publicise the strategies they intend to adopt to meet them. It is not enough to say that the nation’s problems would be solved if they replaced the present military-supported regime.

They must tell us specifically how, for instance, they will expand employment, control prices, provide drinking water and healthcare to the people, deal with the extremist militants and interact with America and India. They should also say how and where they will find the money to do all the good things they are promising to do.

The writer is professor emeritus of political science at the University of Massachusetts at Amherst, US.

Email: anwarsyed@cox.net

Polls’ fairness is crucial

WHILE to all appearances the fate of the country hangs in the balance, for the chief of Pakistan’s ruling party, Chaudhry Shujaat Hussain, it is time for banter and bluff. If the reconciliation ordinance, as Chaudhry Shujaat says, is indeed a trick played on his old adversary and possible future nemesis Benazir Bhutto, apprehensions must arise about the regime’s intention to rig elections to the assemblies.

Such apprehensions cannot be unfounded. If Benazir’s PPP and Nawaz Sharif’s Muslim League were both to remain in the opposition there would not be the remotest possibility of a fairly elected National Assembly giving a vote of confidence to President Musharraf which he is committed to seek. He doesn’t say he would resign if he were not to get it but he would hardly have another choice.

Musharraf who has defied both reason and common sense if not the law (though that remains to be judicially determined) to secure another five-year term couldn’t have risked losing it before it had really begun. To Musharraf it made eminent sense to broaden the base of his support rather than rig the polls which in any case wouldn’t have been easy in the presence of belligerent rivals, an alert media and a judiciary which is now inclined to intervene on its own, even on stray petitions.

The ordinance may have achieved the regime’s immediate purpose of persuading the PPP parliamentarians not to resign from the assemblies but Musharraf must now reconcile to the possibility of a resurgent PPP replacing the weary Q League as the majority party in parliament. So it is not all over yet, nor is it ‘rat gai, bat gai’ as Chaudhry Shujaat would like his unnerved followers to believe.

The first indication of the intention of the president, and also of his old and new allies, about the polls being free or otherwise would come on the selection of the caretakers at the centre and in the provinces and the neutral administrators chosen to replace the political nazims in the districts.

The replacement of the nazims, in a way, would make a bigger difference to the quality of the polls as the officials who would be conducting the ballot all work under them.The political shenanigans spread over the last six months have taken a heavy toll on the time and impartiality of the institutions, especially the judiciary, and the nerves of the people. The atmosphere is thick with propaganda, half-truths, bluster and intrigue. The government’s publicity blitz seems to be driving the voters away rather than winning them over.

There are two reasons for this: the people know it is all at their expense (the opposition alleges it has cost four billion rupees already); and they watch the government’s doings closely and know the facts too well to be misled by claims that are exaggerated or outright false.

The ministry of railways taxes the credulity of the people a bit too far by its advertised claim, among many others, that it has started mass transit trains in eight big cities. What the people see on the ground is that even the one train that ran for a while in the biggest of the eight cities — Karachi — has stopped.

Not much different is the Punjab chief minister’s lyrical assertion on television, at close intervals, about improving education in his province. This is followed by shots of students squatting on the floors of crumbling school buildings being taught by barely literate teachers.

In Sindh, thousands of schools are without teachers because of a protracted dispute within the coalition over the ‘quotas’ of the parties and individuals in the available posts of teachers. Every crooked argument is thrown into the quota controversy but not the one of straightforward recruitment on merit. A bizarre aspect is that the education department is said to have bought cars for its officials with the fee collected from poor unemployed youth, but exams to determine merit are cancelled time and again.

So rampant is the irregularity in recruitment in all departments that the Sindh High Court on a petition by former Karachi nazim Naimatullah Khan has been constrained to direct that no appointment should be made without the court’s approval. It should be embarrassing for the chief minister and the governor to see the high court taking over their supervisory role. But then, the irregularity, perhaps, originates in their offices. In any case, the schools will remain without teachers.

The point to emphasise here is that while the government’s propaganda is at an all-time high pitch its reputation couldn’t have sunk lower. It is unable to resolve problems that keep aggravating. Nor will the next government be able to do so, despite the weight of the PPP behind it.

If the aim is national reconciliation it should not be sought only for those politicians who are accused of crimes. The law should enable the political forces of the country — one and all, secular, parochial or ethnic — to freely participate in the electoral process. In no manner should the fairness of the polls be called into question.

Now that Musharraf has chosen an unusual and devious course to reconciliation, its limited scope should be broadened through negotiations, followed by another ordinance if necessary, to secure the unhindered participation of Nawaz Sharif’s Muslim League as also of the regional parties — more particularly of Asfandyar Wali’s ANP, Mumtaz Bhutto’s Sindh National Front and the political elements representing the Bugti, Marri, Mengal and other sardars of Balochistan. The terrorists on the frontiers of the country and the extremists at its heart pose an equal threat to all of them.

The situation demands a national government. Since that does not look likely in the prevalent atmosphere of mistrust, the government should at least represent the majority emerging out of a fair ballot in which every part of the country and every section of the population is free to participate. Only with this outcome will the reconciliation exercise be taken to serve the national interest and not Musharraf’s own interest.

Finally, and crucially, Musharraf, after relinquishing the army command, should reconcile himself to being the constitutional president and let the parliamentary institutions grow and work. Thus, while Musharraf embarks on his new career, his opponents have no reason to gloat over the success of their campaign.

The public discontent against Ayub Khan and Ziaul Haq, even against Z.A. Bhutto, was more widespread and mass protest against them was far more devastating than the one they have been able to whip up against Musharraf.

Reconciliation without truth

ONE of the successes of political liberalism is that it can coerce consumers to buy a shiny apple with a worm in its centre and convince them that it is still a delicious treat. Today, our political discourse has taken a post-modernist direction with such speed and lack of clarity that it has defied any sense of due process or rational thinking.

Consider the language used to describe our political scenario. The definition of ‘national interest’, which was the doctrine of necessity, has been replaced overnight by, ‘national reconciliation’ (without the truth bit); a constitutional president in uniform will transition into a constitutional president (without uniform); the ‘mother of all elections’ will give (re)birth to the daughter of the East (in a military hospital); and amnesty will be granted for the rich (voluntarily disappeared) thieves, rather than those suffering deprivation and state terror (who will continue to be forcibly disappeared). To consume the apple, we must reconcile with and digest the worms inside as well.

Africa has always been absent from the collective conscience of Pakistan, yet now politicians are falling over themselves in reference to the South African Truth and Reconciliation Commission (TRC) process. Similarly, the Latin American parallels we sometimes draw upon, have been limited to dictatorships and disappearances.

In both cases, the assumption is that Apartheid or ‘bad governance’ marked by gross human rights abuses, torture and excesses was simply dismantled by the removal of white supremacist leaders or oppressive governments.

This ahistorical notion makes a mockery of the implications of the process on two levels. First, it denies the painstaking process of truth, tribunal hearings and testimonies that led to some form of imperfect social reconciliation. Secondly, the central focus on transition in these cases was not meant to be about leadership and governance or even about political systems, but primarily about restructuring a discriminatory economic system.

More important, the exemplary lesson to study in these cases is that transition cannot lead to any change without addressing redistribution — of national wealth and of land — not just political heads.

In South Africa, the liberation was clearly a result of a people’s movement. This was led by the ANC that built on their Freedom Charter, and it gained momentum in the revolutionary underground for over a generation.

However, in reality, South Africa’s post-Apartheid future was negotiated by the IMF/WB and de Klerk’s National Party, with disastrous concessions by a politically immature and at times, opportunist, ANC leadership.

These included a betrayal of core issues in the Freedom Charter, such as nationalisation of the country’s wealth, redistribution and compensation payment to victims of Apartheid.

At the time, ANC activists thought they would ‘fix’ economic issues ‘later’, after they formed a government. What they didn’t understand was the very ‘nature of democracy itself that was being altered in those negotiations…(and) there would effectively be no later’ (N.Klein, The Shock Doctrine).

Subsequently, the debilitating effects of neo-liberal economic programmes in South Africa have been well documented and today it stands as the most unequal country in the world surpassing even Brazil. In the light of this, according to Klein, in 2003, chairman of the TRC, Archbishop Tutu, commented to a journalist that he wondered why black South Africans didn’t just say, ‘To hell with peace. To hell with Tutu and the truth commission.’

The problem with arbitrarily picking up language and terms without a sound understanding or conceptual clarity is that it creates a disconnect between the meaning and application of the term.

So long as those that uphold liberal values in opposition to ‘extremist’ ones, are willing to reconcile to targeted air strikes of militants to secure their own socio-political futures, there can be no chance of the painful, long democratic process towards a peaceful resolution of provincial crises.

So long as we tout the need for shock economic treatments and are awed by the urgent need for being legitimate and acceptable global actors to overcome our ‘bad reputation’ as a terrorist-producing haven, we can have no independent, introspective truth or reconciliatory process.

The issue of sovereignty lies not just in reference to ‘American influence’ on our internal political issues. There is a global team of economists and experts who carry a ‘made-to-order’ transition portfolio to war-torn and crisis-racked countries.

They work through the complicity of amenable local politicians and foreign-educated native consultants. Stephen Cohen calls them ‘Transitionologists’ and attributes to them the ability to convince political leaders, with their spin, about the inevitability of the larger, global picture which requires selling off national assets and waiting for ‘pro-poor’ trickle-down benefits.Their success lies in getting leaders to focus on political restructuring while covertly cutting economic deals which are far more pervasive, and that in the long run, will leave us with a legacy of inequality and conflict far worse than what we perceive we are facing today.

We cannot seriously believe that an imported model of peace-building can possibly take place without some form of truth and accountability of our systems. These include institutional scrutiny which must figure in the military, but also corporate businesses and ownership of land. Otherwise, the transfer of power will simply mean swapping one form of oppression for another more palatable one — or, in other words, we’ll all still be eating the same wormed apple.

afiyaszia@yahoo.com