EXACTLY after a year, the lawyers’ historic movement for the restoration of the independence of the judiciary and the rule of law has succeeded in convincing major political parties in the National Assembly to accept their demands.

March 9, 2007 will always be remembered as a black day in the judicial history of Pakistan. Much to our delight, March 9, 2008 will be remembered as a day of jubilance in the political history of Pakistan. It is heartening that the PPP and the PML-N have signed the Murree declaration, making a categorical commitment to restore the deposed judges within 30 days of the formation of the government.

Supporters of the president lost no time in raising erroneous and misconceived objections, such as how could there be two chief justices at the same time. How can the judges given oath on or after Nov 3 be removed by an executive order or an Assembly resolution? These objections are basically intended to sidetrack the main issue, create confusion and mislead the public.

Sound and tenable answers to these two objections are embodied in the Constitution as well as in the monumental judgements of the Supreme Court itself. One is the case of Zafar Ali Shah (PLD-2000, SC-869). While validating the takeover by Gen Pervez Musharraf in Oct 1999, the apex court had clearly declared that “no amendment shall be made [by Gen Musharraf] in the salient features of the Constitution i.e. independence of judiciary, federalism, parliamentary form of government blended with Islamic provisions”. The so-called proclamation of emergency and the PCO of Nov 2007 were a blatant attack on the independence of the judiciary in gross violation of not only the Constitution but also of the conditions of validations prescribed by the Supreme Court in the Zafar Ali Shah case.

Consequently, the said Proclamation and PCO were admittedly in violation of the Constitution, without any lawful authority and of no lawful effect. Gen Musharraf was also stripped of the benefit of the validation and shelter conferred by the Supreme Court in the Zafar Ali Shah case.

In any case, the said proclamation of Nov 2007 was immediately suspended and set aside by the seven judges of the Supreme Court on the same day. Hence, all acts done or purported to have been done, in pursuance of the said proclamation, including the PCO and the fresh oath given to the persons occupying the offices of the superior judiciary, were in violation of the Constitution, void ab initio and a nullity in the eyes of the law.

It would also be relevant to refer here to the historic ‘Judges Case’ (PLD-1996, SC-324). This famous decision has prescribed the manner and procedure for the appointment of judges of the superior courts. The oath of office of superior court judges administered by General Pervez Musharraf or by his governors in November is clearly in violation of the 13 categorical conditions prescribed by the Supreme Court itself.

Space considerations constrain the reproduction of the 13 conditions which, inter alia, provide for meaningful consultation with the permanent Chief Justice, appointment to fill permanent vacancies only and appointments only in accordance with the qualification prescribed by the Constitution. Another undeniable fact is that fresh appointments in constitutional institutions can only be made when there is a vacancy in the eyes of the law. Since the removal and detention of more than 60 judges of the superior courts in Nov 2007 was by itself in violation of the Constitution, no fresh appointment or oath of office could be given to any other person. Such appointments were void and of no lawful effect on the aforesaid grounds, hence their removal would not give rise to any crisis or difficulty, constitutional or otherwise.

Gen Musharraf’s supporters ask, why this hue and cry for the judges who were deposed in Nov 2007? What is wrong about the oath taken by the present judges under the PCO of Nov 2007? Had not most of the deposed judges, including Chief Justice Iftikhar Mohammad Chaudhry, taken oath on the PCO of 1999? On the face of it they may appear to be making a point, but a careful analysis of the matter would show that this is baseless and mala fide propaganda. In the first place, the PCO of 1999 cannot be equated with the PCO of Nov 2007 as the objects, reasons, facts and circumstances of the two are totally different.

The coup d’etat of Oct 1999 was primarily against the institutions of the federal and provincial executives and legislatures. It was not aimed at subjugating and arresting members of the superior judiciary along with their families. The PCO of 1999 was validated conditionally by the Supreme Court in the case of Zafar Ali Shah, as mentioned above. The purported validation of the emergency/PCO of Nov 2007, announced by some of the defecto judges of the Supreme Court, was without jurisdiction or any lawful authority as the purported validation was issued by those who had taken oath under the new PCO illegally enforced by Gen Musharraf. They were a beneficiary of the PCO and it is a universally followed maxim of law that “no one can be a judge in his own case”.

The so-called proclamation and PCO of Nov 2007 have to be judged against the backdrop of the failure of Gen Musharraf and his colleagues to obtain the resignation of the Chief Justice, their failure to seek his removal by filing a reference before the Supreme Judicial Council under Article 209, the resounding support he received from the judges and lawyers who firmly stood behind their Chief Justice and the historic Supreme Court judgement of July 20, 2007 which restored the Chief Justice. It is also pertinent to mention that during the course of the hearing before the Supreme Court, Gen Musharraf had withdrawn all the allegations and charges filed against Chief Justice Iftikhar Chaudhry, with an unconditional apology tendered in the open court.

Unlike the PCO of 1999 or LFO of 2002, the PCO of 2007 and any of the consequential orders, decisions and acts of Gen Musharraf have not been validated or adopted by parliament by amending the Constitution with the support of at least two-thirds of its total members as required under Article 239 of the Constitution.

Regrettably, General Musharraf and his minions continue to maintain their unconstitutional stand, inter alia, that the restoration of the deposed judges would require a constitutional amendment by a two-thirds majority. This stand is not tenable, to say the least, morally or legally because the removal of judges by Gen Musharraf was a blatant violation of the Constitution and a nullity in law. Reversal of this act does not and cannot by stretch of any logic or reason require any kind of amendment to the Constitution simply because the purported amendments made to the Constitution by Gen Musharraf in November 2007 are not part of the Constitution.

The writer is a former attorney general, federal minister for law, justice, parliamentary affairs & human rights, and a former senator.

hnhadv@cyber.net.pk

WHEN a new government takes office in Islamabad and begins the task of developing a strategy for improving Pakistan’s economic situation, it must equip itself with good understanding of what is happening to the structure of the global economy.

This was not done by the administration that held the reins of power in 2002-2007. That was unfortunate since the country lost many opportunities that had become available because of the changing structure of the global economy.

The changes that have occurred in the world economic system mean that some of the opportunities that helped a number of Asian economies to develop in the last several decades are not present for Pakistan. Nonetheless, there are still many opportunities available to a ‘catch-up’ economy such as Pakistan’s. To understand what they are, the government should study the evolving system of international production, the changing pattern of trade, the evolving system of global finance, and the demographic changes that are taking place in developed countries. In all of them there are opportunities for Pakistan.

Policymakers should also understand the changes that are taking place in the distribution of wealth and economic power in the globe. Some analysts have suggested that the world is moving away from the unipolar system that emerged after the collapse of the Soviet Union in 1991 and the emergence of the United States as the sole superpower. They believe that the world is moving rapidly towards a three-power system centred on the United States, the European Union and China.

Parag Khanna, an American scholar of Indian origin, has put forward, in his forthcoming book, a hypothesis about the structure of the globe that is worth studying. “At best America’s unipolar moment lasted through the 1990s but that was also a decade adrift,” he writes. “The post-cold-war ‘peace dividend’ never converted into a global liberal order under American leadership.

“So now, rather than bestriding the globe, we are competing — and losing — in [the] geopolitical marketplace alongside the world’s other superpowers: the European Union and China. This is geopolitics in the 21st century: the new Big Three. Not Russia, an increasingly depopulated expanse run by Gazprom.gov; not an incoherent Islam embroiled in internal wars; and not India, lagging decades behind China in both development and strategic appetite. The Big Three make the rules — their own rules — without any one of them dominating. And the others are left to choose their suitors in the post-American world.”

There are many indictors that the Americans are losing the dominant role they once had in the global economic system. One is the establishment of sovereign funds as vehicles for investment by the countries that have surplus capital. Such funds have been created by China and Singapore, several Opec countries and by Norway.

In all, sovereign wealth funds control more than $2tn, a figure that could approach $12tn by 2015 according to some estimates. Some of these funds, including the largest, the Abu Dhabi Investment Authority, are located in areas geographically close to Pakistan. While the movement of finance is constrained by distance, proximity does bring familiarity on the part of the fund managers. It is not surprising that the sovereign funds in Dubai and Abu Dhabi are supporting a number of very large investments in Pakistan in telecommunications and real estate development. This development has made Pakistan less dependent on American largesse.

In addition to the tripolar world, Khanna identifies a number of countries he labels as the second world. These countries are important for the central powers. He believes that it is important for the second-world countries to cultivate relations with the Big Three based on their (the second world’s) strategic interests. Khanna’s list of second-world countries includes Pakistan. How will this new world, dominated by three economic players, look like and what kind of adjustments should Pakistan make to this development? Some clues to formulating an answer to this question have begun to emerge as the Americans, the Chinese and the Europeans have begun to conduct business, both in politics and economics.

Two of these three centres of power have their own peripheries which they would want to influence and have already begun to do so. The Europeans will continue to work with their immediate neighbours which include the Soviet Union, the Middle East and North Africa. The Chinese will continue to take interest in East Asia, the Central Asian ‘stans’, the Middle East and the resource-rich countries of Africa and Latin America. It is only the United States that will continue to project its economic and military power across the globe.Let me now get to the second part of the question posed above: What does this rearrangement of the global eco-political system imply for Pakistan? For most of the country’s history, Pakistan has worked closely with the United States. The reason for this is that for the first half century after its birth, the country remained preoccupied with what it perceived to be the Indian challenge.

To the policymakers in Islamabad, Washington seemed to offer a way for balancing the growing power of India. It was not often realised that if the United States favoured Pakistan it did so for its own reasons and not to help Pakistan deal with its anxieties. Whenever there was confrontation with India, the US stepped back and did not offer the support Pakistan had hoped for.

First under Zulfikar Ali Bhutto in the seventies and later under Pervez Musharraf in the period since 9/11, Pakistan’s foreign policy stance has shifted. In the seventies, Pakistan was successful in developing a close relationship with China and under Musharraf it has been successful in removing the India-centric approach to the making of foreign policy. Nonetheless, the focus remains on the US.

Washington’s war against terror after 9/11 and the fact that northwestern Pakistan is one of the three places — the other being Afghanistan and Iraq — that have become the theatres of this struggle has kept Islamabad’s attention focused on Washington.

The close strategic alliance with the United States, especially during the rule by the military, also affected economic policies. Pakistan became highly dependent on capital flows from the United States to the extent that it disregarded one of the basic premises of development economics: that sustainable growth is only possible if it is based on mostly internal resources. Dependence on the US produced a roller-coaster ride for the country: the economy performed well when Pakistan was in favour with the United States; it did poorly when the flow of American resources became constrained.

But that was not the only dependence Pakistan created for itself. It also tied its export sector closely to the United States. Contrary to what the ‘gravity model of trade’ suggests, the US rather than China and India became the largest trading partner for the country. If the conclusion reached by Khanna in his closely argued book is correct and if the new world order will have three large players dominating the global system in all its manifestations, then it is necessary for Pakistan to reorient its economic policies away from the United States and directed more towards China and Europe.

WERE last month’s elections about restoring the people’s will or just about redistributing political party power? Any form of a debate on democratic dispensation, regardless of its level of sanguinity, should be encouraged, not silenced. It is only dictatorships that attempt to stifle options, choice and in particular limit divergent, dissenting opinions that compete freely for influence.

To suggest that public opinion should suspend its disbelief and hold back its critical watch over those brokering and manoeuvring their positions in Islamabad is in fact the language of those who can afford patient indifference.

In so many ways, these cautious, liberal pragmatists are no different from those opportunists who defended the need for a military dictator to take over eight years ago, as the necessary protection from flawed and megalomaniacal democratic leaders. It is the same inverted rationale that now these ‘realists’ invoke, as they accuse legal (over) activists of attempting to restore a ‘dubious’ and ‘originally PCO’ judiciary. They also question the need for unfettered freedom of a suspect and ‘irresponsible’ media and finally now they reprimand a ‘confrontational’ civil society for putting ‘pressure’ on fledgling political parties. Is this the tone for future democratic expression — fearful, walk-on-eggshells anticipation?

Gen Musharraf, Shaukat Aziz and their government spent five years warning against ‘pessimists’, which amounted to anyone who was critical of their policies or who exercised their democratic right to dissent — including Mukhtaran Mai. At that time, the rationale was that those seeking justice, desperate enough to reach out from their communities and to rescue themselves or their families from abuse and disappearances, were conspirators against the progress of Pakistan. Now, a set of detached analysts recommend the same soft, deal-making, pragmatic path towards trickle-down ‘institutional’ change. They thus warn against untimely speaking out or action that challenges the moral directions politicians are still trying to decide upon.

The flawed conjecture, that critical pressure is going to bring down a democratic government even before it begins, is remarkable. It used to be that civil society and activists never did enough, precisely because they were not radical enough and their agendas were formulated and compromised by foreign donors. So how come this same rationale is not applicable to political parties today? Surely it is unlikely that pro-democratic activists would spend the last eight years agitating and exercising their agency against a dictatorship, only to now unwittingly become party to undoing this electoral success.

On the other hand, political parties certainly seem to be swinging that way — a willingness to surrender the democratic momentum, dilute this in the House, and live with the remnants of a dictatorship. It is these internal weaknesses of party relations and unresolved systemic flaws that will bear the responsibility for rendering the democratic process unsustainable. To fix that, we require strong, proactive steps — like restoring the Constitution and undoing illegal detentions — not waiting by the sidelines for some vague, non-promised change to happen. This is not the burden of the people and certainly not those who envision bringing about accountable governance.

There are fine lines between conciliation, consensus and compromise. The people have proven themselves by exercising their political agency in a clear manner. If there is no confusion in their minds and a clear consensus emerges from their vote, then what purpose does the compromising of a legal system, the Constitution and clear mandate of people’s rights serve?

Opportunities are not dependent solely upon strength of parties and coalitions. Instead, they have to be carved out and should be based on trusted policies that guarantee economic, social and political rights. Parties earn credibility based on their willingness and expression of such rights. And if they are worried about a perceptively strong pressure from civil society for upholding these, such that it can practically derail them, then more power to us.

To suggest that Aitzaz Ahsan watered down the lawyers’ ‘confrontational’ approach by postponing the long march on Islamabad is a weak argument against the fact that a criminal FIR has been lodged against Gen Musharraf and office-holders by leading lawyers. This is textbook, pro-democratic activism demanding accountability. This does not suggest one institution or its actors are competing for political supremacy over the other. If anything, the lawyers’ movement is strengthening the role of the legislators by demanding a new term for them, cleansed of past illegal burdens. Surely, the spirit of reconciliation must start with this process of accountability.

It can only be expected of bureaucrats and interest groups to set timetables for tempered confrontation, occasional compromise and necessary collaboration. The rest of us have realised that after nearly 30 years of fighting against discrimination and abuses from a previous dictatorship, civic and human rights movements merely get diluted, dismissed or co-opted if they don’t push for some concrete, tangible, imminent resolution.

This election has been about corrective processes. In a relatively peaceful manner, the people of Pakistan gave their political verdict, not their political agency, up to the representatives. Their expectations are high and there is no bigger issue that requires correction than the sense of injustice and denied access to freedoms of expression. If the people’s wisdom is to be respected, then their expression of it cannot be considered disposable at the ballot box alone. Instead, they have raised the ‘bar’ of democratic expectations. The least the parties can do is to respectfully measure up to it.

afiyaszia@yahoo.com