Save the judiciary

GENERAL (retd.) Pervez Musharraf is a self proclaimed adventurer. His eight years rule bears testimony to his brinkmanship. While the country may eventually recover from some of his adventures, others would have far graver consequences. One such misadventure was his action on Nov 3 against the judiciary.

Though not the first of its kind, it has never been so pervasive. When the curtain finally falls on the Musharraf era, as it inevitably would, and like all mortals, he too passes into the pages of history, the baneful effects of this action would continue to haunt us.

While the founder of the country was a great constitutionalist, Pakistan lacked an acceptable Constitution for almost a quarter century. Eventually when the country had a Constitution in 1973, the process of undermining it started immediately. Fundamental rights were suspended and the judiciary came under attack.

In a democratic society governed by rule of law, the judiciary acts as the custodian of the Constitution and the law. It functions at two different levels. At the lower level, the judiciary adjudicates disputes between litigants. Here the government and its different departments also appear as litigants but are no different from private litigants.

At this level of adjudication all that is required of the judiciary is neutrality. The courts adjudicate cases on merit in accordance with law without being influenced by any other consideration or factor. Our judiciary, particularly the superior courts have always been fiercely independent and impartial in adjudicating such matters even while functioning under the darkest clouds of civilian or military dictatorship.

It is at the other higher and constitutional level where the superior courts play an altogether different role. The litigation does not involve adjudication of private disputes. The role of the judiciary is somewhat anomalous as it is required to demarcate the constitutional role and functions of other organs or functionaries of state. While playing a proactive role, it must nevertheless remain within its own constitutionally allocated jurisdiction.

This occasionally brings the judiciary in conflict with the government. Despite the aura of its moral authority, the judiciary remains the weakest of state organs as it entirely depends upon other institutions of state and public opinion for implementation of its orders.

In mature democratic societies the public opinion expressed through a fiercely vibrant media and other countervailing factors prevent situations where the executive could trespass its constitutionally allocated functions. Where governments attempt to do so, courts intervene and the matter ends there. No question of defiance of orders of courts arises. In exceptional cases where the executive attempts to derail the constitutional process, as happened in India during the emergency imposed by Mrs Indira Gandhi, the people administer the ultimate penalty at the polls.

The situation is far more complex in countries like ours where the democratic process has not fully matured due to repeated military interventions. Even polls are rigged to distort the political process. We have an executive with untamed raw power at its command and determined to use and often abuse it. It is worse when the executive branch is headed by an ambitious man enamoured with the sense of his personal indispensability who genuinely suffers from the delusion that without him, there would be no country left, as is the case with Mr Musharraf. Unfortunately, he is not the first of our self imposed saviours.

In Pakistan the judiciary has often been called upon to adjudicate on the violation of the Constitution by the executive. Historically our judiciary has been informed more by discretion than valour. In 2007 the judiciary tried to reverse that trend through judicial activism.

Chief Justice Iftikhar Muhammad Chaudhry did not embark upon this journey in any planned manner. It started initially with a few cases where the government authorities had acted in a patently arbitrary manner. It soon developed its own momentum and dynamics as there was complete rot in the system. The level of corruption, mismanagement and abuse of power was beyond belief. The court was left with little choice.

While the orders passed by the apex court in exercise of suo motu power could be critically analysed and there is room for difference of opinion, it needs to be observed that in none of the suo motu cases did the court challenge or question the constitutional authority of the government itself. The court only directed the government and its different agencies and functionaries to strictly adhere to the provisions of the law and perform their functions accordingly. This turned out to be unacceptable to the military rulers.

In its recent pronouncement where the proclamation of emergency and Provisional Constitution Order (PCO) was upheld by the Supreme Court functioning under the PCO, the court has made critical observations about judicial activism. It may be pointed out that some of the learned members of the present Supreme Court were also members of the benches which had passed orders in suo motu exercise of power. None of the present learned members of the Supreme Court dissented while passing the orders which are now referred to as abuse of judicial power.

Many other countries have witnessed judicial activism. The Earl Warren Court in America virtually carried out social engineering. The Indian Supreme Court has developed public interest litigation vigorously. While in many countries excessive judicial activism resulted in ultimate judicial retreat, in Pakistan it has resulted in decimation of the judiciary itself.

After imposition of the second martial law on Nov 3, Pervez Musharraf has virtually wiped out the institution. This has not only resulted in a complete reversal of the trend of judicial activism at the higher level of operation/adjudication, the qualitative damage to the institution is so pervasive and complete that for the very first time in the country’s history, there is profound skepticism in the legal fraternity and national intelligentsia about the presently constituted courts’ ability and capacity to even continue to function at the lower level of operation/adjudication where its function is that of a neutral empire amongst litigants in most mundane and ordinary cases. Such is the existing state of affairs.

Such an absolute annihilation of the judiciary was not experienced in either Zia’s PCO or under Musharraf’s first PCO. By a single arbitrary stroke, some of the country’s finest judicial minds have been made redundant. Look at the Sindh High Court alone. Chief Justice Sabihuddin Ahmed, Justices Sarmad Jalal Usmani, Anwar Zaheer Jamali, Mushir Alam, Khilji Arif Hussain, Amir Hani Muslim, Gulzar Ahmed, Maqbool Baqar, Athar Saeed, Sajjad Ali Shah, Faisal Arab, Zafar Sherwani, Salman Ansari, Rasheed Kalwar and Arshad Siraj have ceased to be judges. Rarely does nature create a galaxy of such profoundly deep, learned, honest, upright and humane judges. We were blessed to have them but now we are cursed to have lost them so wantonly.

General (retd.) Pervez Musharraf still has an opportunity to atone for this fatal blow by restoring the judiciary as it stood on Nov 3, when he eventually revokes the emergency and PCO on Dec 16, as promised by him. If he still has any love for this country left in him, as he so often claims, he must rectify this grave error. If he fails, he would rank even lower than Zia and Yayha in our nation’s hall of shame.

Educating the masses

IN his Nov 3 speech, Pervez Musharraf said that there was a marked improvement in the country’s social sector. He specially spoke of health and education — with focus on primary and secondary health and the promotion of educational institutions at every level.

Last week, Unesco released the sixth edition of its Education For All global monitoring report, and shockingly its figures do not seem to tally with what Mr Musharraf gave us to understand.

This report assessed the progress made by countries towards reaching the six Education For All goals for 2015. These are:

• to expand and improve comprehensive early childhood care and education;

• to ensure that by 2015 all children, particularly girls and those belonging to ethnic minorities have access to free and compulsory primary education of good quality;

• to ensure that the learning needs of all young people and adults are met through equitable access to appropriate learning and life-skills programmes;

• to achieve a 50 per cent improvement in levels of adult literacy by 2015, especially for women, and equitable access to basic and continuing education for all adults;

• to eliminate gender disparities in primary and secondary education by 2005, and achieving gender equality in education by 2015, with a focus on ensuring girls’ full and equal access to and achievement in basic education of good quality;

• to improve all aspects of the quality of education and ensure excellence of all, so that recognised and measurable learning outcomes are achieved by all, especially in literacy, numeracy and essential life skills.

Now I could compare Pakistan to the rest of the world and see what marked improvements have been made, but this would make dull reading. So instead I will compare Pakistan with its neighbours, more precisely its South and West Asian ones: Afghanistan, Bangladesh, Bhutan, India, Iran, Maldives, Nepal, and Sri Lanka.

Let us start with enrolments. Pakistan’s Net Enrolment Ratio (NER) which is the enrolment of the age group for a given level of education expressed as a percentage of the population in that age group, is 66 per cent. This means that Pakistan has the second lowest NER in the region, higher only than Afghanistan’s.

You also have the Gross Enrolment Ratio (GER) also known as the participation rate, which is the number of children attending school divided by the number of children in all age groups who ought to be attending. Here Pakistan has an 86 per cent GER for primary education and a 27 per cent GER for secondary education.

This is once again the second lowest in the region with Afghanistan having the lowest. Interestingly, while enrolment for secondary education rose seven per cent in ten years (from 1980 to 1990), it only rose six per cent in fifteen years (from 1991 to 2006).

As for the literacy rate, it went up from 45 per cent in 2000 to 54 per cent in 2006, but Pakistan still has one of the lowest adult literacy rates in the world — the third lowest in the region (Afghanistan and Bangladesh have lower adult literacy rates). Even worse, according to Unesco, by 2015 the country will have the second lowest adult literacy rate, which means that Bangladesh is making more progress here than Pakistan.

Now if we look at gender disparities in education, the report says that Pakistan has the lowest Gender Parity Index in the region, that is, more boys than girls in schools compared with any other country around us (yes, including Afghanistan).

How come Pakistan has such low levels of education, especially taking into consideration that there has been a GDP annual growth rate of more than six per cent?

Moreover, Pakistan (along with Bangladesh, India and Nepal) is part of the world’s 12 highest recipients of education aid, and at least three-quarters of total education aid in these four countries is meant for basic education.

Well, according to Unesco, governments should invest at least six per cent of GNP in education, although this doesn’t in itself guarantee quality — but it is a start. Worldwide, the share of education expenditure in GNP is above three per cent in most countries. In the region, for instance, this percentage varies from eight per cent in the Maldives to as low as 2.4 per cent in Bangladesh and Pakistan. More worryingly, while public spending in education has been increasing in places like Iran and Nepal, from 1999 until 2004 it has been decreasing in Bangladesh, India and Pakistan.

In other words, not only Pakistan is the country that spends the least on education in the region, but also it has been spending less and less since 1999.

Still, public spending on tertiary education has increased. And quite a bit of foreign aid has also been directed towards increasing the number of Pakistanis with access to higher education; just look at the increase of Fulbright scholarships. That is true – this government has indeed increased spending at university level. How good has this spending been, well that’s another story (if you’re interested, you should read what Dr Pervez Hoodbhoy has to say about it).

Now look at your streets today; who are the new faces asking for true democracy, civil liberties and independent rule of law? Yes, the university students, the so-called future of the nation. Unfortunately, there are so few of them (since only about 2.6 per cent of the population has access to higher education) that some people think they are not a force to be taken seriously. Now imagine if all the population had access to good quality, free education. We start to understand why some governments do not invest in educating the masses — you might get the whole world learning about their rights and responsibilities. Who knows, people might even start asking for these “foreign, Western” levels of democracy, civil rights, human rights, civil liberties, which some say took these countries centuries to learn.

Curiously, there are 52 “western” countries of which about only four have had electoral democracies for the past 30 years and 20 have had it for the past 15 years. But there are, according to the Freedom House, 123 electoral democracies in the world – which means that statistically, 46 per cent of the “West” are fast learners, as are about 59 per cent of the rest of the world.

Anyway, back to education: I guess then it’s no surprise that the latest Unesco report on how countries around the world are performing on universal primary education, adult literacy, the quality of education and gender parity, shows the following countries as the 10 worse performers: Eritrea, Mozambique, Ethiopia, Benin, Guinea, Mali, Burkina Faso, Niger, Chad, and Pakistan (yes, worse than Afghanistan).

The writer is a researcher currently pursuing doctoral studies in the UK.

How Nawaz Sharif will fare

LAST week the Associated Press asked President Bush to comment on Nawaz Sharif’s return to Pakistan after seven years in exile.

President Bush said: “I do not know him well enough. But he is reported to have good relations with Pakistan’s religious parties, which raises doubts about his commitment to battling the Taliban and Al-Qaeda. I would be very concerned if there is any leader in Pakistan that didn’t understand the nature of the world in which we live today.”

It is really surprising that the top leader of a country that is in the forefront of promoting democracy around the world should make such a statement on the eve of a general election in Pakistan, effectively showing US preference for one national leader in relation to another. This can be interpreted as undue interference in the electoral process and in the rights of Pakistani voters to elect their leadership.

Even more worrisome is the naive statement by President Bush that any leader in Pakistan which has good relations with religious political parties would not be able to support the campaign on terrorism. In actual fact the reverse is true because only a leader, whom the people of the country and especially those living in the NWFP, Balochistan and the Tribal Areas trust, will be able to deal with the problem of terrorism and extremism in a fundamental way. That President Bush, the main architect of the war on terror since 9/11, does not understand this simple truth would be a source of intense concern for all those who want sustainable peace in this world.

Extremism and its dreadful manifestation in the form of terrorism, is a very complex phenomenon whose nature must be clearly understood. It is a lethal combination of traditional nationalism rising against foreign occupation or foreign domination, a mindset that believes in Islamic revival through force and coercion and belatedly the symbolic manifestation of a new class war against local, regional and global elites. Most of the problems afflicting Pakistan and Afghanistan today are the legacy of the proxy war which the US fought against Russia in the 1980s, with the help of Pakistan. The number of people with an extremist mindset in Pakistan is very small, but there is a much larger number of people, especially in the NWFP and the Tribal Areas, which is very sympathetic to the extremists’ worldview and their struggle against foreign domination. Wherever possible, they provide shelter and sustenance to those who need them. This includes the Taliban who escaped from Afghanistan after the American occupation in October 2001, or their Al Qaeda supporters who were initially foreign volunteers, who were brought to Afghanistan to help the Afghan mujahideen (holy warriors) in the war against Russia. Only after 9/11 these foreign militants joined a loose network called Al Qaeda.

The use of force is and will remain necessary against foreign and local terrorists who take innocent lives and also to prevent infiltration across the Pakistan border. But it is even more important to win the hearts and minds of the people who support them through a process of political engagement. That is where, contrary to President Bush’s assessment, the strength of Nawaz Sharif lies. This should be clear from the following facts:

• The party which Nawaz Sharif leads, the Pakistan Muslim League-N, is a moderate and progressive party, which is not apologetic about Islam. Its worldview is very balanced as it seeks a peaceful world where people belonging to different faiths can live in peace and harmony.

• In terms of total votes, the PML led by Nawaz Sharif has been the most popular party in Pakistan. It received a total of 30.76 million votes in four party-based elections held in 1988, 1990, 1993, and 1997, compared to 27.38 million votes polled by the PPP, the second largest party. The PML also won more National Assembly seats from the NWFP than any other party in all these four elections.

• In 2006, Nawaz Sharif spearheaded the formation of an opposition alliance of 28 political parties called the All Parties Democratic Movement (APDM) which includes not only all the religious parties (MMA) but also many other nationalist and progressive parties like ANP, JWP, BNP, PKMAP and TI.

In comparison, the political space occupied by the PPP in the NWFP and Balochistan is relatively limited. Most of the PPP supporters in the NWFP defected in 2002, to the Aftab Sherpao group, called PPP (Patriots) and joined the Musharraf government.

Some of Benazir Bhutto’s recent statements have also adversely affected her ability to win the hearts and minds of the people in the tribal areas.

Similarly Musharraf’s ability to deal with the problem of extremism and terrorism has been eroding, partly because of the issue of legitimacy and partly because of the widespread perception that he has been following an American agenda that is not fully in line with the country’s national interests.

There is no doubt that a democratically elected leader, with the support of a strong parliament, will have a far better opportunity to evolve a policy that will have much wider political support in the country and the affected provinces.

No one should be more aware than America, of one of the stark lessons of history, especially after Vietnam and Iraq, that a popular insurgency or movement cannot be overcome through war alone. The political dimension becomes even more important when the so-called ‘adversaries’ are your own people.

The writer was finance minister in 1990-93 and 1997-98 and foreign minister of Pakistan in 1998-99 under Nawaz Sharif.