A RECENT report in this newspaper (March 4) said the government had decided “in principle” to relax restrictions on the movements of Justice Iftikhar Mohammad Chaudhry and his family, who have been under house arrest since Nov 3, 2007.

No official statement in this regard is being issued, reportedly because the government does not want to admit the fact, known to all, that it has been keeping Justice Chaudhry, and numerous other judges, under detention without any lawful authority.

The caretaker government which will technically make the decision in this case has been putting its name to many more actions than those expected from an interim arrangement. Actually, it has been acting not as a government with a mind and a will of its own but as a proxy for Gen Musharraf. Days before a new government’s inauguration, it has announced major political decisions. Acting for the general, it has, for instance, increased fuel prices, appointed a man of his choosing as governor of Balochistan, and ordered a great many postings and transfers of high-ranking civil servants. All of this would seem to have had the design of transgressing the domain of the newly elected parliament and the government it will install.

There is more to the caretakers’ doings than meets the eye. They represent a continuation of Gen Musharraf’s regime. They do his bidding in matters that engage his interest, and then they do what pleases them and what they can get away with. Officials in the Islamabad administration are said to have revealed that the decision concerning the restrictions on Justice Chaudhry has emanated from the presidency. That sounds right. As I have just said, all important decisions taken purportedly by the caretakers are in fact made by the president.

The Chief Justice and some of his colleagues in the Supreme Court were deposed and placed under house arrest on the day emergency rule was imposed (Nov 3, 2007). Had the caretakers possessed any real authority, they could have withdrawn the detention orders after the emergency was lifted a few weeks later. They did not do so, either because they did not have a choice in the matter or because they believed there was good reason to keep the judges in detention. In either case one has to ask why the judges were removed in the first place, why their replacement by more acceptable persons was not deemed enough for the general’s purposes, and why they were placed in detention at all.

Gen Musharraf would seem to have been led to anticipate that a majority of the Supreme Court judges were going to hold his election as president to have been unlawful. In case that did transpire the honourable course of action for him would have been to accept the court’s verdict and go home. That, under no circumstances, was he willing to do. The judges therefore had to be removed. Moreover, he believed that the Chief Justice, who had influenced the thinking of several of his colleagues, was personally hostile to him.

It may be recalled in this connection that on March 9, 2007 the general had arbitrarily dismissed the Chief Justice. This action led to a lawyers’ movement for his restoration and for the independence of the judiciary. Justice Chaudhry was invited to address bar associations and other forums all over the country.

Huge gatherings were organised to applaud Justice Chaudhry and to denounce the general’s high-handedness. The Chief Justice emerged as a hero not only in the legal profession but also in the esteem of the public at large. Gen Musharraf’s prestige tumbled both within the country and abroad. A few weeks later the Supreme Court overruled the general’s action of March 9 and reinstated Justice Chaudhry.

The present, reconstituted and replenished, Supreme Court upheld all of the general’s moves of Nov 3, including his dismissal of a majority of its own judges.

The lawyers’ movement, referred to above, continued unabated and it has gained new momentum after Justice Chaudhry’s second dismissal. Aitzaz Ahsan, president of the Supreme Court Bar Association, an eloquent public speaker and competent organiser, had been leading this movement very effectively.

He and several renowned jurists and lawyers, who had been aiding him, were also imprisoned or placed under house arrest. He was recently released after some four months’ confinement but some of his associates are still detained. He has resumed his role as the chief spokesman of the legal fraternity. Their movement demands the judiciary’s independence but release of the deposed judges from

detention and their reinstatement have become its principal objective.

Mr Ahsan intends to organise a long march to Islamabad if the National Assembly does not do all that may be necessary to obtain the release and reinstatement of the deposed judges as its first order of business. He has gathered a good deal of political support for his drive. Mr Nawaz Sharif and his PML-N have placed these goals on the top of their agenda.

Pervez Musharraf is wholly opposed to the judges’ reinstatement. He is apprehensive, and not without good reason, that if these gentlemen return to their posts in the Supreme Court, and if the issues of his election and his actions of Nov 3 are reopened, which they probably will be, the court will rule against him to his great embarrassment and discomfiture. He will have to leave office in humiliation and disgrace.

It is clear that in these circumstances Justice Chaudhry’s release will enable him once again to rise as the symbol and star of an anti-Musharraf movement. Considering the massive popular support that had developed for him during the spring and early summer of last year, it may be safe to say that a movement in his behalf at this time could turn out to be very troublesome for Musharraf. It is then not surprising that he wants the judge to stay put in his home. But the present situation is equally disgraceful, both for him personally and for the nation. In a civilised system of governance the ouster of the Chief Justice of the country and several other judges of its highest court, and their detention, would be preposterous even to contemplate.

As a related question, one may ask if there is anything, other than the forestalling of a movement, that Musharraf stands to gain from the judge’s continued detention. Consider first that a movement to overthrow him, inspired by Justice Chaudhry’s detention, is already on in spite of his physical absence from the scene of action. It is an open question whether his release, and that of other judges and lawyers, will further energise or defuse an anti-Musharraf movement out in the streets and in the National Assembly. It is hard to predict which way the wind will blow. On the other hand, if the assembly listens to Nawaz Sharif and repudiates Gen Musharraf’s moves of Nov 3 the consequences will not be his to control. Furthermore, the movement in question will have become unnecessary.

The writer is a visiting professor at the Lahore School of Economics.

anwars@lahoreschool.edu.pk

WHEN President Musharraf said he would preside as a “father figure” for the next five years, he was not being humble or generous. Having retired from the army and his party — the Q-League — and having lost at the polls, a father figure is all he can be, not withstanding the extraordinary powers he assumed under the 17th Amendment to the Constitution in pursuit of his “checks and balances” fad.

Unless the PPP-PML-N government through its incompetence or internal wrangles hastens to discredit itself with the electorate (which does not look unlikely), one cannot imagine Musharraf dissolving the National Assembly even if the ruling coalition fails to muster the two-thirds majority needed in both houses of parliament to repeal Article 58-2(b) of the Constitution.

Musharraf’s other device to keep the parliamentary forces in check, the National Security Council, was of no help to him in the series of crises he faced before the polls nor in all likelihood will it be in the future. Looking back it seems all the hullabaloo accompanying its creation in 2002 was misplaced. The council has hardly played a role in the affairs of the state since its creation. In the changing circumstances it is even less likely to find a role for itself and might, in fact, become moribund.

The third significant power that Musharraf acquired through the 17th Amendment was the right to appoint the service chiefs, judges and some other high-ranking state officials at his own discretion or in consultation with the prime minister but not on his advice. Even this power he would find difficult to exercise when a question mark hangs over his own legitimacy and the directly elected prime minister enjoys the backing both of parliament and the people.

All combined, the results of the polls, unexpected coalescing of the two principal parties, defections from the Q-League and the lawyers’ unrelenting demand for the recall of deposed judges would, in any case, tend to make Musharraf a president more in the image of Chaudhry Fazal Elahi in Z.A. Bhutto’s government and Rafiq Tarar in Nawaz Sharif’s than the chief executive (read: chief martial law administrator) that he was for eight years.

Reducing a head of state to a figurehead who is unable even to counsel or warn the government and who becomes a target of public ridicule (as were Fazal Elahi and Tarar) has its own hazards. But the issue that now has the making of a crisis is the commitment of the PPP and PML-N to their Murree declaration and the pledge to reinstate within one month, through a resolution of the National Assembly, all those judges whom Musharraf removed.

Just as Nawaz Sharif is adamant on the reinstatement of the judges, Musharraf remains determined not to give in. On the mechanism for reinstatement there are as many views as there are legal experts — all, quite obviously, coloured by their political preferences.

At one extreme is obstreperous Aitzaz Ahsan (also being mentioned as the next likely prime minister) who thinks the removal and subsequent confinement of the judges was a crime which can, and should, be undone through a simple executive order. A more detached Fakhruddin G. Ebrahim tends to hold a similar view: any unconstitutional act imposed by brute force, he thinks, is ab initio void and can be disregarded when the force is lifted.

At the other extreme is Malik Qayyum, the laid-back and shrewd attorney general. He believes, and the president would be justified in going by his advice for he is the principal law officer of the state, that the judges can be reinstated only by amending the Constitution. For that the coalition doesn’t have the required strength, not in the Senate at least.

The Murree declaration, on the other hand, holds that a simple resolution of the National Assembly is enough. This view may be based on legal advice but it will be surely challenged and its implementation almost certainly stayed by the present Supreme Court. Then the question would inevitably arise whether the new judges can also be removed through a resolution.

If in obedience to the resolution the old judges come back and the new ones refuse to leave, Pakistan would present to the world a sorry but amusing spectacle of two supreme courts cancelling each other’s orders as was witnessed for a while in the second Nawaz Sharif government.

Whatever the route or device adopted to reinstate the judges, it is bound to lead to litigation in which the legal counsels might lose their objectivity and the judges their impartiality. The people may riot in the streets and the country, surely, would become a laughing stock. Whether the episode ends in Musharraf’s exit or collapse of the government, in either case the rule of law and parliamentary institutions would be irreparably damaged.

Why must the intelligentsia create a legal quagmire for the common man who is already stuck in the cesspool of poverty and has little respite from murderous violence? Truly speaking, Musharraf’s dismissal of the judges is a political issue and the politicians, Nawaz Sharif in particular, are also seeking to make political capital out of it.

The conundrum thus created needs to be resolved through a political compromise or a negotiated arrangement, as ever-pragmatic Sharifuddin Pirzada has also suggested, to save the judiciary and parliament from a ruinous confrontation.

It is for the first time in more than a generation that progressive and liberal elements have come to the fore through elections. They have the numbers, and should have the will, to establish a truly democratic order in the country while the obscurantists have either chosen to stay out or been rejected by the people. Musharraf too, despite his lack of representative character and lust for power, shares the outlook of the ascendant parties.

Our misfortune all along has been that the parties that are secular, and enjoy mass support as well, have been recruiting rabble-rousing clerics only to promote their political cause. Their public policies and attitudes have empowered the most extreme and least tolerant members of society.

The result has been the growth of an outcrop of violent extremism in a society that is essentially moderate and peaceable. The religious (which really means sectarian) parties have been channelling national thinking toward polarisation rather than reconciliation. Rid of them, the emerging democratic forces should not be seen doing the same.

CHILDISH innovations do sometimes take on sinister meanings. I was born and brought up off the street variously called Temper Road and Tamper Road and seldom addressed by its real title, Temple Road. The Sacred Heart School that I went to for a while would be called Secret Heart and Scared Heart given our proficiency of the language and our mood at a particular time.

Compared to the violence life is beset by today, those were the days of gentle banter. Different points of view, different ideologies coexisted. The Regal cinema on the Mall end of the road would occasionally host festivals of films from the Soviet Union and those emerging from a show had the capacity to laugh off the taunts as mischievous right-wingers mumbled the word ‘communists’ as they went past each other. I still remember the Soviet version of the famous Rustam and Sohrab that we saw as young boys along with our grandfather. The ending was a bit too much for him and tears rolled down his cheeks all the way home.

The road had been renamed after the founder of Nawa-i-Waqt, Hameed Nizami, but it was possible for the Pakistan People’s Party to establish its first office here in the 1960s. And while he said he could never vote against his conviction, my childhood guru had no qualms when he crossed the ideological divide to author catchy slogans for a neighbourhood uncle contesting the 1979 local bodies polls under the Jamaat-i-Islami umbrella.

It was some time before the maulvi sahib who is now in charge of the mohalla mosque made his appearance on the scene to convert a whole generation of idle worshippers to his idea of cheap, close-at-hand madressah education.

All so very predictable? I am sorry to disappoint the more enlightened souls amongst us, but I will be lying if I said that the maulvi sahib ever provided us with a cause for serious complaint. Not this one at least. In the most trying of situations, the maulvi sahib is still amenable to jokes referring to his sweet tooth and banter has survived despite increasing distances brought about by pressures of modern-day life. Yet the devastated look the area wears today after a horrifying blast at the Federal Investigation Agency on March 11 is indicative of how what was and still is mainstream has been exposed to the gory lessons delivered by the suicide bombers.

“They are amongst us,” says the television talk show host and the dozens of families on Temple Road living close to the epicentre of the blast wonder if they had ever come across the young man who smashed the explosives-laden pickup van into the FIA building that morning. Did he set out on his deadly mission right in their midst? The thought sends shudders down their spines. “The one sitting in his fortified position cannot feel just how insecure the people in the danger zone are feeling.” This time it is a politician angrily reacting to the latest blast in Lahore.

The feeling of insecurity has increased but it has been there for some time. A few months ago, in the Punjab capital, you routinely ran into people not that averse to a bloody crushing of the revolt in the tribal areas. This is no more the case since, instinctively, the ordinary man on a horror-struck street behaves just as selfishly as the inventor of the ‘Pakistan First’ slogan… Pakistan first, Punjab first, Lahore first, my street first, and come the worst, my home first.

This selfishness is obviously at the core of everything that we do and could lead to some very ugly manifestations. It is most politely expressed in the vote of an individual. The people are wise enough to vote out of sympathy for themselves. This is what individuals did on Feb 18, consequently creating a new collective whole — a whole that has so far been denied power by an individual who has given himself the powers of vetoing what he doesn’t like.

The election was about the judiciary and it may have been about shortages, but essentially what the Pakistanis endorsed at the hustings on Feb 18 was at least some adjustments in the country’s approach to the war on terror. Had it not been so the Americans wouldn’t be so involved in the save-Musharraf campaign right now. It amounted to telling the Pakistanis, “Ok you have your elections and your democracy, but you must have a government of our choice.”

Even if a deal that ensures continuity in presidency is eventually cut, it is not going to be a compromise as compromises are struck in the world of politics. The post-poll moves to push the parties into accepting President Musharraf on an as-is-where-is basis actually amount to a nullification of the whole electoral exercise and a vindication of the boycotters.

The Pakistan People’s Party promised that it will not fight the war on terror as America’s war and it won votes. The Pakistan Muslim League-Nawaz also pledged a review of the strategy and even hinted at opening talk channels with the militants. The Awami National Party, the third partner in the hopefully emerging coalition, also spoke of involving people in the search for peace, thereby indicating that it was looking for an out-and-out political solution.

While it can be argued that it may be too late for us Pakistanis to call it our own war, and while the PML-N and ANP may also struggle to carry out the task as they had enunciated before the polls, they cannot be judged before they have had a good opportunity of having tried their methods. But one thing is obvious: they must act differently on the most crucial issue of terrorism than the PML-Q to justify the election.

Whether a middle, moderate way is still possible will only be clear when we set out on finding one. The Rustam and Sohrab tragedy has been enacted too many times for our own good. We need not persist with the tearful ending of one man killing the other.