A DIVIDED and distracted judiciary would be President Musharraf’s most troublesome legacy to the next government. The infringements, atrocities and stupidities committed in the last few months in handling the reference against the Chief Justice of Pakistan and the lawyers’ agitation that followed have overshadowed his regime’s all other good or bad deeds.

The mutual mistrust in the legal community has reached such a stage that insinuations are made and base motives attributed whenever a judgment is handed down in matters of public importance.

The Lahore High Court staying the creation of a new High Court at Islamabad and the Supreme Court overturning the High Court order on the plea of the attorney-general that it smacked of personal vendetta show the depth that this mistrust has scaled.

The question before the two courts was one of law and public convenience in which the personal preference of the judges, much less vendetta, should have found no place.

Mr Hamid Khan, a former president of the Supreme Court bar, has attributed even the retirement of Lahore High Court Chief Justice Iftikhar Hussain Chaudhry to his differences with the attorney-general.

The tenure and terms of the LHC chief justice, as of all other judges, are determined by the Constitution. Mr Hamid Khan’s comment suggests that he serves at the will of the attorney-general. The conduct of the superior court judges is thus being projected in a light unbefitting even the executive magistrates of yesteryear.

But then it is also hard to recall an instance where a magistrate was insulted or manhandled by the police or his movements were restrained without a court order as were of the judges.

To deny the right of habeas corpus available even to the humblest of citizens to the ultimate custodians of this right must be an instance without precedent in our judicial history howsoever chequered it might have been.

Why the sitting judges had not issued a common-law writ directing the police or whatever other agency was detaining Justice Iftikhar Mohammad Chaudhry and other judges to produce them before the court is difficult to comprehend.

A magistrate as a matter of course directs the police, or at least used to, to produce a person, even a suspected criminal, in custody to look into the legality of his detention. A presiding judge not doing it for another judge alleged to be in illegal detention is puzzling in the extreme.

Much anguish is caused by reports that feudal lords run private jails to keep the peasantry in control or that tribal elders provide shelter to criminals beyond the reach of the law. Here the state itself has been seen converting the residential colony of the judges virtually into a jail without the courts intervening.

The judicial ferment caused by the constitutional amendments made through an executive order under which some judges ceased to hold office and others were inducted is unlikely to subside even after the elections.

The agitating lawyers who hardly have a dissenter in their ranks will continue to be supported by the parties boycotting the elections. Aitzaz Ahsan has staked his high position in the PPP to inspire and lead them. Mahmood Achakzai is rallying crowds to threaten a no more than one per cent voter turnout in Balochistan.

The aggrieved sardars will surely help him get close to that mark.The reinstatement of the judges who did not take oath under the Provisional Constitution Order was the first article of Nawaz Sharif’s election manifesto, though now the party has announced a boycott.

The PPP was committed to an independent judiciary but not to the recall of the ousted judges. Whatever the representational character of the national and provincial assemblies that emerge after the polls whenever they are held, the legality of judges whether forced out or inducted in office will surely remain a divisive issue in the assemblies, in the courts, in the bar rooms and out in the streets and will not let the governments at the centre and in the provinces settle down to their normal work.

It would be unfair of the present regime to pass the problems created by its transgressions on to the new parliament and government.

They may be able to cope with the consequences of Musharraf’s devolution plan, the centre’s inroads into provincial jurisdiction and degeneration of administrative structures but not with the judicial mess when confronted by a united, unrelenting legal fraternity.

President Musharraf should feel personally responsible for resolving the judicial crisis when his legal advisers have been only aggravating it. It cannot be left to the courts to find a solution for it revolves around the judges who preside, or should be presiding, over the highest court.

The issue of judges is no longer just about legality. It is also moral — the right and wrong of it. Departing from the normal remedy which is only legal and remains controversial and elusive, one would venture to suggest that a board comprising of five retired Supreme Court judges — Javed Iqbal (Allama Iqbal’s son, to avoid confusing him with another judge of the same name), Fakhruddin G. Ebrahim, Shafiur Rehman, Mamun Kazi and Ajmal Mian — may be constituted to put their heads together to find an all-encompassing solution for putting the judicial system back on the rails and also to suggest safeguards against its ever being derailed in the future.

The five judges named should make a good lightening rod for the raging legal storm. The likes of Sharifuddin Pirzada and Malik Qayyum on the one side and Ali Ahmed Kurd and Munir Malik on the other are bending backward to make it a popular issue of politics that divides the judges into rival factions who either side with the government of the day or oppose it. The judges must be spared the fate that has overtaken our civil servants.

IN its closing days, the year 2007 has left a deep scar in the collective memory of this nation. It will not be possible to fill the huge void that the assassination of Ms Benazir Bhutto has left in the political landscape of Pakistan.

No other leader in this godforsaken land commands the respect and love of people the way she did. Many envied her intellect, eloquence, courage and mastery of world affairs. Even her most vocal critics were humbled by her brave sacrifice for the cause of democracy in Pakistan.

In 1986 her return home after years in exile had rekindled hope amongst the wretched of the earth driven to live without a life under the despotic and soulless regime of General Ziaul Haq. This time round in 2007, she ended her exile once more to lead the PPP in the process that was widely believed would facilitate the country’s return to democracy. No other leader in Pakistan has captured the imagination of the people as she did.

A leader who learned the ropes of politics early in life, Benazir cut an admirable picture of a Muslim lady politician par excellence. Growing wiser with age and experience her pragmatism is testimony to her understanding of the political ground realities where the ruling institution is armed to the teeth and enjoys the support of the West for backing its ‘war against terror’.

She never rambled and spoke clearly on issues confronting the country, especially the threat posed to the social fabric by religious fanatics. Humanity has travelled far enough in time to have learned that societies cannot be subjugated indefinitely. It is not an accident that the United Nations included in a number of its bills of rights intangibles such as the right to expression, right to assembly and right to self-governance as basic human rights.

No one can condone loot and arson but what moral high ground do the law enforcers have if they cross all decent limits of governance on a whim.

Civility is not genetic, it is learned and acquired. The civilised way of governance will have to be adopted before it can be demanded of the poor to vent their anger in a measured way without causing great public loss. If the government justifies its acts of abuse of power on one pretext or another, it is hard to stop the barefoot child photographed in Karachi running away with a bottle of jam from the scene of looting and arson by protesters.

THE overwhelming sentiment in reaction to Thursday’s dastardly event is anger. This is natural and expected. However, difficult as it may be, the situation being faced by our nation demands that we fight our natural instinct and come up with a strategy that helps overcome the clear and present dangers confronting the nation.

Far too much innocent blood has been shed in this unfortunate land of ours. The soul of the nation is fractured almost beyond repair by tragedy upon tragedy inflicted upon it. There is barely enough time to mourn one tragic event before we are faced with another. And now this monumental tragedy whose reverberations seem to be shaking the very foundations of our nationhood. In the words of Faiz the nation is left asking :

“Kab nazar mein aye gi bedagh sabze ki bahar

khoon key dhabbey dhulein gey kitni barsatoon key baad”

(When will we see the blooming of an unsoiled garden, how many rains will it take to wash away the bloodstains)

This is not the time for confrontation and hatred. This is the time for a genuine national reconciliation. For unless we confront the myriad dangers facing us right now as a united nation, the magnitude of the challenges is such that we will have no chance of success. And yet succeed we must. More than just the welfare of the 160 million citizens of Pakistan is at stake. If we fail to meet the challenges we are confronted with, the consequences will be felt not just in the region but I fear around the globe. Failure is not an option.

In my opinion a grand national reconciliation will have to bring together political parties which were a part of the governing coalition as well as the ARD led by the PPP, PML-N, JUI-F and the APDM. This will ensure that the political leadership representing all the provinces is at the table. In addition to these political parties, President Musharraf has to be a party to this national reconciliation as he also represents a significant political reality that needs to be acknowledged in crafting any scheme of national reconciliation.

The reconciliation formula would comprise the following key elements:

1. Postponement of the elections by 60-90 days with a fresh election schedule announced requiring the re-filing of papers for nomination of candidates.

2. Creation of national/provincial governments comprising all the political parties mentioned above. The members of these interim federal and provincial cabinets, including the prime minister and chief ministers, to be eligible to participate in the forthcoming elections. This is important as it is critical that the interim government is inclusive of all important political leaders. We cannot afford an impotent non-political interim government at this stage.

3. Reconstitution of the Election Commission based on a consensus among all parties with vast administrative and legal authority for all actions required for the conduct of elections; i.e. the interim governments not to have any powers to influence the outcome of the elections.

4. A one-time exemption for President Musharraf from the constitutional provisions barring him from being eligible to contest the presidential elections.

5. An agreement by President Musharraf that he will enter a fresh contest for presidential elections once the new assemblies are in place

6. An agreement that the issue of the restoration of the pre-Nov 3 judiciary will be decided by a simple majority of the new parliament.

7. An immediate repeal of the amendments in PEMRA Ordinance 2007

The above formula requires a compromise from the stated positions of almost all the key players. With so much at stake, these compromises are not just acceptable but perhaps necessary. Extraordinary times require extraordinary measures. In effect, what I am recommending is that all the key issues which have led to the current impasse and a sharply divided polity be resolved by a referral to the will of the people of Pakistan.

If this recourse to the will of the people is undertaken by a consensus of all the key players, it will set the foundations of a legitimate political structure acceptable to all the people of Pakistan. Only a political structure which carries such legitimacy and moral authority can deal with the key challenges facing the nation.

The government that comes into being from such a parliament will then have the capacity to deal with the three issues that demand immediate attention if we are going to safeguard the sovereignty and security of Pakistan. These challenges relate to (i) civil-military relations in the state structure; (ii) balance of power between the federation and the federating units and amongst the federating units; and (iii) the national security strategy inclusive of how to fight the scourge of extremism and terrorism.

These challenges demand immediate attention which has been made all the more urgent by the horrific tragedy of Benazir Bhutto’s assassination. We delay dealing with these issues at the peril of putting the very unity and security of the country at risk.

One hopes all the key players will show sagacity and statesmanship by recognising the unprecedented dangers facing the nation and demonstrate the ability to make the sacrifices required to lead. However, I appeal most of all to President Musharraf: you have spent your entire adult life in public service, performing I am sure to the best of your ability according to what you thought was best for the country.

Now that entire lifetime’s, and in particular, the last eight year’s legacy is at stake. The whole country is waiting to see if you will prove to them that “Pakistan first” is not just a slogan but a deeply held conviction. Let this not be simply a slogan — as has been the case with most other rulers — used as an excuse for perpetuating your rule at any cost.

For someone who in her personal life was so elegant and fastidious about her appearance, she deserved better than a stark wooden box for a coffin and a used ajrak shawl, thrown hurriedly over it. But then who will blame her stunned distraught supporters.

For someone who in her public life had stared death in the face on more occasions that even Death can count, she lay inert. Her face that had launched a million dreams. For no face in the history of modern South Asian politics — with the possible exception of

Mrs Indira Gandhi — was as instantly recognisable as that of the late Mohtarma Benazir Bhutto.

Just as Indira Gandhi had crafted an image of herself with its almost contrived, distinctive plume of white hair, Benazir Bhutto had adopted the white dupatta as her own personal emblem. It more than framed her face; it delineated her public persona. And like Mrs Gandhi, she knew when and how to use it to her advantage.

To anyone familiar with the classics, the lives and deaths of Mrs Gandhi and Ms Bhutto contain all the elements of a Greek tragedy. Both were heroines condemned by Fate to follow a path not of their own choosing; both were granted a reprieve by Destiny and allowed to succeed despite the slimmest of odds. Both suffered on occasions and in varying degrees from hubris, and both paid the ultimate price for their flawed moment of judgement.

In Mrs Gandhi’s case, it was her deliberate deployment of Sikh guards for her personal security even after the attack she had ordered on their Golden Temple at Amritsar; in Benazir Bhutto’s it was the momentary, spontaneous error of standing up through the sunroof of her otherwise bulletproof Land Cruiser. And both of them paid for those innocuous mistakes with their lives. Mrs Gandhi’s ashes have dissolved in the waters of the Ganges and mixed with the earth of India. Mohtarma Benazir Bhutto’s body lies buried next to that of her father. She shared his name, she shared his ideals, and now she shares with him a mausoleum at Garhi Khuda Bukhsh. They leave behind them the Pakistan People’s Party, the party he founded and she nurtured, a party that has grassroots support but no stem, and now no flower.

Many both inside and outside her party today ask, with the benefit of hindsight, why she felt it necessary to return to Pakistan, first cautiously in October and then again with increased determination and bravado to contest the forthcoming Jan 2008 elections. Was it to activate her wilting party? Was it out of loyalty to her rudderless party workers? Was it as a flagrant challenge to her adversaries, a dare to do their worst when she intended to do what she did best — to fight them through public speeches, through public rallies, and finally on Jan 8 through the ballot box?

Who could have given her the assurance, renewed after the suicide bomb attack in Karachi on Oct 18, that she would be safe? And who would have given her the guarantee that her diligent, exhausting electioneering campaign would yield the laurels of a third prime ministership and not the ashes of an unwanted opposition? No one will ever truly know. These secrets go with her to her grave. Meanwhile, the memory of her courage will remain, as will the image of a fearless political leader who paid the price even when knowing the cost.

If Mohtarma Benazir Bhutto was fortunate, it was to be born in an age when the media is the midwife of public opinion. She knew all too well its uses, and had endured its abuses. She knew her own strengths and its weaknesses, and above all she knew how to package and market a product that would sell.

A measure of her success was the coverage her death evoked in every medium everywhere in the world. To the networks who had ignored her for the past eight years, the State Department that fobbed her off with junior staffers when she visited it during her years in the wilderness, and to the television anchorpersons who found her an articulate guest, she had graduated from being the Daughter of the East to becoming the Darling of the West.

Today, and from now on, the image that Mohtarma Benazir Bhutto presented to the world during her lifetime will gradually ossify into an icon. What she and her supporters and admirers had not anticipated was the suddenness with which her white veil would become a white shroud.

HANDS raised, mouths agape, hearts shattered, they carry what remains of her, a strip of ajrak fluttering across her coffin like a mother’s tender caress. Feet falter against each other, striving to remain rooted to the ground despite the terrible tragedy that has struck. These men carry a great burden, one that their hearts cannot contain. The wooden casket contains the mortal remains of an icon who challenged the existing order, condemning the violence which claimed her, taking her away from a people orphaned time and time again.

I look closely at the hands which hold her aloft. These are calloused hands, bruised by countless strikes against walls which protected the powerful, made still more commanding by the control over forces which were meant to protect us, not destroy us. That Benazir Bhutto had been seen by the intelligentsia to be conciliatory towards those very forces did not deter her supporters, for in the hearts of the people she led, she was their hope, the answer to their desperate cry for salvation.

How did our people reach this point in our nation’s history where they were willing to put their lives at risk for a woman who gave up her life for them? Were we, the chattering classes, even aware of the sorrow which hooded the eyes of these men and women who dared to dance in the streets to welcome her, forgetting for a brief moment that their children died of lack of nourishment and medical care? Why did we allow the desert of neglect to creep into the fabric of our people’s lives, eroding the vital sources of life, crippling the mighty Indus and stripping the people of their dreams? What happened to all the promises of justice and democracy which were made time and time again, raising hopes and then dashing them to the ground which is now soaked with the blood of believers? How did we allow our violation at midnight, at midday, the enemy amidst us?

It has been an insidious plan, this grand design to rein us in. We never even knew the hour of our own violation, we were asleep when the enemy slipped in, we were barely awake when the drum roll of the conqueror sounded in our ears, loud and clear, beating its rhythm with the regularity of the assured.

We no longer look towards the shadows at the ghosts who orchestrate this pantomime. I look, and I see, and I turn away, for I have recognised the enemy and I fear that the enemy lives within us. (How do you stand tall, how do you exist when tyrants rule, how do you keep the stitches of the soul intact. But how do you, how do you stretch beneath the low ceiling of tyranny, how do you bear the hailstorms of despotism, how do you stand still in the whirlpool of oppression when tyranny’s rank smell swirls from your own soul)

In these past eight years, I had watched and yearned, waiting for some small fissure through which I could insert myself and seek relief for this burden of recognition, this terrible sense of foreboding which governed my reticence. I have seen the unfolding of the grand design, the clamouring for the spoils, and the arrogance of the victor.

I have seen the general bask and beam under international scrutiny, switching the texture and colour of his well-cut coats with the ease of a consummate actor playing out the longest farce on a West-End stage. I have seen the others flock around him, seeking him out, asking him to tell us, tell us, tell us, where does our future lie? I have seen the deception and the lies, the disregard for what must be truly our national interest, as the parade marches on and we become silent spectators at the funeral of our future.

And now the final convulsions of this rotting corpse of all things light and moderate. A grave is dug, a coffin lowered into the soil which embraces the bones of her father and his father before him. There is so much grief that the throat constricts with anguish, the earth’s powdery dust veiling the agony of the mourners. There are cries and questions within those cries; there is anger, a need for answers. All around us there is a knowledge which embeds itself in that soil which shall cradle what remains of her. We know who has tried to murder the soul of this nation, and we know that despite the bombs and the bullets, this soul shall not die, that she shall live on, in the hearts of the people for whom she died.