DAWN - OpEd; January 06, 2002

Published January 6, 2002

Guideposts on roadmap

By Anwar Syed

A FEW guideposts on the so-called roadmap for the return to democracy are fairly clear. General Musharraf will remain president, one way or another, even after the elections scheduled for October of 2002. Second, the military will get some sort of institutionalized representation in the councils of government on a permanent basis. Third, the parliamentary system will remain, but presidential authority will be enlarged in order to create a “balance” between his office and that of the prime minister.

These objectives, and others which have not yet been disclosed, will be achieved by amending the Constitution at an opportune time. Soon after the ouster of Mr Nawaz Sharif’s government, many of our politicians gathered under the umbrella of Nawabzada Nasrullah Khan to demand the restoration of democracy. But his organization (ARD) has not been able to create the kind of crisis in which his well-known negotiating skills might have been put to use to change General Musharraf’s mind. What will the politicians then do between now and next October?

While there will be some independent candidates, and this time perhaps many more than is usually the case, most of the aspirants for legislative office will work through political parties. The parties are under some restraint but there is still plenty that they can do from behind closed doors. What should they be doing, and on what fronts? Common sense will tell them, loud and clear, that they should first set their own respective houses in order, meaning that they should get better organized.

This task normally includes membership drives, recruitment of party workers, internal elections to choose party officials and councils at various levels. Relating more specifically to elections, it involves the preparation of a party programme, establishment of a process for selecting candidates for various offices, shaping of a campaign strategy, fund raising, finding effective public speakers besides the candidates themselves, organizing public meetings and, towards the end, getting the voters out to polling stations and overseeing the actual voting.

Some of these functions have fallen by the wayside during the last thirty or more years. Jamaat-i-Islami (JI) is one of the few parties, if not the only one, that maintain regular lists of dues-paying members and hold internal party elections. Of the two major national parties, the record of the PML (if one knows which of its factions is being referred to) in this regard is mixed. The PPP, on the other hand, has never maintained membership lists or held internal elections. Its functionaries at each level are appointed by officials at the next higher level, and ultimately by the chairperson who holds office for life.

But as far as the next election is concerned, both the PPP and the PML (N) have a problem on their hands: neither Ms Bhutto nor Mr Sharif may be able to contest. It is conceivable but not likely that they may direct the election campaigns of their respective parties from their stations in exile. Neither of these parties can regain power, or even political efficacy, unless it finds an effective alternative to its absent overlord. The problem goes beyond Bhutto and Sharif. Several other prominent leaders from each party are under detention and may not be released until sometime after the election. Given the tradition of personalism in our politics, one cannot be certain that the notables in either party will make serious efforts to fill the leadership vacuum.

This happens to be one of those times when our nation faces several extremely serious problems, and if the debate preceding the elections is to be meaningful, our parties must study these problems carefully and develop feasible policy positions. Everyone agrees that our economy and public finances are in severe adversity. The parties may not be able to devise quick solutions, but they should at least let it be known that they are seized of the issues. They might invite economists, financial experts, and others with relevant knowledge to advise them, sponsor “seminars,” and hold debates on these questions.

They might do the same with regard to other pressing issues. For instance, they must tell the people how to think about our relations with India, and what to do about Kashmir, considering that India appears to be entirely unwilling to accommodate our preferences on the subject. They should say where they stand, and what they would do if they came to power, in relation to Afghanistan, Central Asia, “war” against terrorism, sectarian conflict and minority rights within the country, sharing of resources between the provinces, and the distribution of power and authority between the central and provincial governments.

They have an obligation to tell the people what they may reasonably expect in return for their votes. The credibility of assurances will depend in part on their specificity, showing that the party concerned has indeed given matters serious thought. Generalities — such as that corruption is bad, Islamization should be carried forward, terrorism is to be condemned, or that our national sovereignty must never be compromised — will not do.

Elections, like most other things, cost money. Candidates who run as “independents” fund their campaigns from their own resources. Many of the nominees of a party do the same, though some of them may receive an amount of assistance from their party as well. In the years following the 1970 election, the major parties, including the PPP, have often preferred candidates who were wealthy, and influential enough in their constituencies, to be likely winners regardless of their previous loyalty and service to the party. Old and faithful workers have often resented the awarding of party “tickets” on that basis.

In some other democracies, individuals donate money to parties of their choice on a voluntary basis. There is no such tradition in Pakistan with the possible exception of those who are sympathetic towards the Islamic parties, notably the JI. When elections are held at a time when a political party is in power, business houses may voluntarily, or under pressure, contribute funds to its coffers, and sometime even to those of its principal rival, in hopes of getting compensation after the election. One theory, favoured by the politicians in power, has it that they take “dirty” money not for themselves but to put it in their party’s reserves for the next election.

Considering that the elections in October will take place under the supervision of a military government, how will funding materialize? The late Zulfikar Ali Bhutto used to tell his associates that he had contributed a great deal of his own money to the party. Benazir Bhutto and Nawaz Sharif might give some of their funds, which must still be considerable, to their respective parties if they saw the opportunity of returning to their leading positions in Pakistani politics. But it is improbable that they would do so purely for altruistic reasons, or even as an investment in their future political standing, if that future appeared to be remote. Some funding from wealthy individuals in the major parties may still become available. The Chaudhrys of Gujrat, now affiliated with the PML (QA), are surely in a position to give. It is not clear if the PPP and others parties are similarly blessed.

It is unlikely that business houses, many of them on the run or in doldrums, will give significant sums of money to any of the major national parties. Individuals with long-standing sympathy for a party may go out of their way to donate funds, if the party workers are able to approach them, but their contribution cannot be large enough to make up for the sources now missing. The problem of funding can be mitigated substantially if the present government can, and does, enforce the already existing limitations on campaign spending. These can be made more effective by shortening the electioneering period to a few weeks, permitting public meetings but prohibiting rallies and processions, allowing candidates free and equal access to public radio and television, and enforcing strict vigilance to prevent them from bribing the voters.

Dedicated party workers, canvassing from door to door, and even collecting donations, can provide critical help. That is if such workers can still be found. Their loyalty to the party concerned, the regard in which they hold their party notables and their performance, their own personal expectations in case their party wins, their feelings about whether their services were recognized, and whether “opportunists” prospered, during their party’s previous rule are relevant to a consideration of what may be expected of them during the coming election campaign.

The late General Yahya Khan and his associates were at peace with the project of holding the country’s first general elections in 1970, partly because their intelligence agencies had assured them that the resulting assembly would be fragmented with no party having a majority of seats. That intelligence turned out to be entirely wrong. But if similar advice is being given to the present government, the outcome of the election will probably confirm it.

Considering the constraints placed on politicians and political parties, and the other problems referred to above (especially the probability that a substantial number of independents will find their way into the assemblies and become amenable to “horse trading”), the post-election political weather is threatening to be foul. Much will depend on whether the army wants supremacy or whether it will be content with “balance” between institutions in the post-election government.

Ending terrorism and its causes

By Kunwar Idris

AS the leaders of India and Pakistan lead their countries to the brink of war for the umpteenth time, they need to be reminded of just the following three of the many stark facts:

The annual per capita income of their people was $60 in 1960. So was it of South Korea. Now South Korea’s is $11000 (repeat eleven thousand dollars). India and Pakistan both are less than $500. Two, half of the world’s people living in absolute poverty (subsisting on less than a dollar a day) live in the subcontinent and their number has doubled over the past 15 years. Three, South Asia with its 1500 million people (one-fourth of the world population) has a share of only half a per cent in the world trade.

It seems the leaders of the two countries, whether elected or self-appointed, relish a state of war to escape their responsibility towards their people. Instead of leading them out of poverty, they chose to lead them into war in which jingoism subdues the urge both for civil liberty and economic rights.

While the blame for the three wars the two countries fought in the past might be shared, the current hysteria is whipped entirely by India because this time round it is better placed both in the power and economic equation to wage a war.

India’s war machine is more than twice as large as Pakistan’s, yet Pakistan as a percentage of its national income spends twice as much on defence than India does. The Indian economy is one of the fastest growing in the world — or at least was till the hijacked planes and recession hit America. Pakistan’s economy, on the other hand, is fumbling and its growth is barely keeping pace with the growing population.

The lower expenditure on defence enables India to spend more on education. As a percentage of its GDP it spends 6.5 per cent. Pakistan spends only 2.5 per cent (Sri Lanka spends 14 per cent). Quite understandably then the adult illiteracy rate in Pakistan is 42 per cent against 33 per cent in India. In female illiteracy Pakistan is a bigger laggard — 71 per cent of its women are illiterate against India’s 57 per cent.

It was in this background that a famous educationist noted in anguish when Pakistan Navy’s Atlantique surveillance aircraft was shot down by India that it cost $60 million while the annual budget of Pakistan’s all the public universities is only $40 million. No price could be placed on the loss of life. The cost of ignorance imposed by inadequate funds for education is similarly incalculable.

At present when the war-on-terror psychosis is clouding all other realities, India has been able to bring Pakistan under tremendous pressure to rein in and punish its militants. But the world refuses to take note of the rebellion in Kashmir and the Indian atrocities to quell it, and the denial of basic rights to the people of the Valley which has compelled their compatriots on this side of the line of control, and indeed from the world over, to sneak in to fight alongside them.

Like all armed freedom struggles, the insurgency in Kashmir has its “collateral” damage — the Hindu Pundits have been driven out, innocent people are dying or starving, the dissenters are mocked and harassed, the civil establishments like the Srinagar assembly have been attacked.

The world also fails to appreciate that if there is terrorism in Kashmir today it is born of an unrepresentative brutal rule there as it was in Afghanistan under the Taliban militia and in Bosnia or Kosovo under Solobodan Milosevic; and also that no amount of “cross-border terrorism” can keep alive a freedom struggle for 12 years in which seventy thousand people fall victims to an occupation army of half a million.

For Pakistan to answer the charge of terrorism while the world overlooks India’s ruthless repression in Kashmir only because its parliament has come under a suicidal attack signifies a tremendous failure of Pakistan’s diplomacy. For that the blame must be taken by the authors of the Afghan policy where Pakistan recognized and militarily helped a terrorist regime for five years and backed down only when the terrorists strike in America and the ultimatum that followed left it with no other alternative.

The upshot of this discussion is that in the prevalent trend of world opinion and Pakistan’s own political vacuum, economic compulsions, sectarian strife and impending elections, the government must take whatever steps are necessary to end the confrontation on the borders created by India.

The foremost step in that direction would be to bring the extremist groups under strict surveillance and to check the entry of the mujahideen, into the Indian occupied Kashmir. In any case the fighting and grieving people of Kashmir need a respite from 12 years of unceasing brutality and economic deprivation.

The odds are also now stacked against them by the American-led war on terrorism and the suspicion cast on their legitimate struggle by that insane attack on the parliament building engineered, maybe, by their misguided supporters or saboteurs or, more likely, by other regional insurgent groups that abound in India.

The people’s struggle for self-determination must now enter a new phase to yield success or, at least, an acceptable compromise solution for the Indians too have learnt their lesson that bullets can kill people but not their urge for freedom.

The government here then must revert to its priority tasks which are to restore law and order, repair the economy, reform the Constitution and hold elections. All this will be made easier by curbing extremism which is as much responsible for sectarian tension at home as on the borders.

Pakistan and India are bound by ties of history, language and religion (there are as many Muslims in India as in Pakistan), culture and cuisine. So far politics has driven their relations. They should now let economy drive their politics.

Making democracy stick

BACK in 1991, Zambia was hailed as a model of Africa’s turn toward democracy. Kenneth Kaunda, the aging strongman who had led the country since independence in 1964, was persuaded to allow the country’s first multi-party election.

Foreign observers arrived to oversee the vote, and a promising trade-union leader named Frederick Chiluba became Zambia’s new president. A decade later, however, Zambia’s democratic breakthrough appears less than complete. Now the inauguration of Chiluba’s chosen successor, Levy Mwanawasa, had to be protected from demonstrators claiming that the just-held election was rigged.

The blame for this anger must be shared among opposition leaders and the election authorities. Ten candidates took on Mwanawasa, winning a combined 70 percent of the popular vote; if a majority of Zambians feel cheated to see the ruling party hang on to power despite years of dismal economic performance, it is partly because the opposition failed to unite behind a single challenger.

The leading opposition candidate, Anderson Mazoka, came within a hair’s breadth of defeating the ruling party candidate. But he spoiled that achievement by recklessly claiming victory early in the counting process and threatening “chaos” if he was not named the winner.

Mazoka might have shown restraint if the election had been conducted more fairly. Goaded by election watchdogs both foreign and domestic, the authorities did make some worthy efforts to level the playing field.

Chiluba respected the constitutional bar against running for a third term despite an early promise to seek reelection.

The state television station reduced its usual pro-government bias by airing a series of debates. And the one clear incident of fraud on voting day — involving an election official who opened a sealed ballot box — was quickly redressed by assigning a new team to check and count the contents.

But the campaign was still marred by the apparent use of government vehicles and patronage to win over voters. And the transparency of the vote was willfully compromised by the election commission, which did not tell election monitors in advance of its intent to tally the vote at its headquarters, and then granted only intermittent access to the process.

The lesson, both for Zambians and for democracy proponents abroad, is that political freedoms are harder to install than was hoped at the start of the 1990s. —The Washington Post

The crumbling judicial edifice

By Qazi Faez Isa

MARKED improvements can be discerned if one compares the working of Pervez Musharraf’s government to that of his predecessors, both democratic and military. There is no stench of corruption wafting from the higher echelons of government. Public sector corporations and banks are not being forced to employ incompetent and corrupt favourites.

A free press and critical views expressed on the state-controlled electronic media are other significant milestones. But in its dealing with the judiciary this government’s performance has been poor, and far worse than its predecessors. The manner in which four judges were recently nominated to the Supreme Court reaffirms this.

The prescribed number of Judges of the Supreme Court is sixteen, excluding the Chief Justice of Pakistan. Four judges therefore constitute a quarter of the Supreme Court. It is the right of the citizens of this country to see that these appointments are properly made, as these judges will have the final say in respect of all matters.

The Constitution of Pakistan provides that, “each of the other Judges [other than the Chief Justice of Pakistan] shall be appointed by the President after consultation with the Chief Justice” [Article 177(1)]. Therefore, any judge who is being elevated to the Supreme Court of Pakistan can only be elevated in consultation with the Chief Justice of Pakistan.

However, the present Chief Justice of Pakistan, Irshad Hassan Khan, retires four days before the new judges will be appointed and called upon to take their oath of office as Supreme Court judges. At the risk of stating the obvious the appointments made to the Supreme Court after the retirement of Mr. Justice Irshad Hassan Khan, can only be made in consultation with the next Chief Justice of Pakistan.

In deeming to seek the opinion of the Chief Justice when the present incumbent would no longer grace the office, and in deeming to give an opinion in respect of a matter occurring after his retirement takes us into the realm of make-believe. If one were to accept what is being proposed, that the present Chief Justice of Pakistan can be consulted in respect of appointments to be made after he retires, then on this interpretation appointments to judicial office could be made a year, two or ten in the future. Every government may even proceed to procure a list from the outgoing Chief Justice of the judges it wishes to elevate in the future.

In all matters legal this government appears to be placing trust in the one and the only tailor-master, know for his skill to destroy the best fabric. Unfortunately, General Zia and all subsequent rulers have sought out his legal skills and are captivated by the web he spins. And things have not changed. Pervez Musharraf has moved away from the divisive and destructive legacy of his military predecessor in most matters. But in dealing with the judiciary this government exhibits the same contempt as did Zia’s. Probably this is on account of the fact that Zia’s chief legal adviser is still influencing matters pertaining to the judiciary. Sadly the present law minister has not moved out of this dark shadow and into the bold light of truth and justice.

At a glance the strewn wreckage of the holders of judicial office is found littered on the judicial landscape. Probably relying on incorrect and injurious legal advice, all superior court judges were called upon to take a fresh oath despite the fact that there appeared to be no threat to General Musharraf’s government from any quarter. Half the Judges of the Supreme Court of Pakistan declined to take the prescribed oath whilst seven High Court judges were arbitrarily not invited to take it, and stood relieved from the august office they held. Altogether there were thirteen casualties.

The reason why the mode and manner of the appointment of the Judges to the superior courts and their respective seniority is important is best answered in the words of the Supreme Court. “There is a direct nexus between the mode of appointment of Judges and the independence of judiciary” as stated by Mr. Justice Ajmal Mian in the case which has come to be known as the ‘Judges case’(Al-Jehad Trust versus Federation of Pakistan, PLD 1996 Supreme Court 324).

Justice Ajmal Mian subsequently became the Chief Justice of Pakistan and acquitted himself admirably and did the judiciary proud in very difficult times. In the same case the Supreme Court, after a thorough examination of various Islamic sources, stated “that the power to appoint Judges is a sacred trust, the same should be exercised in utmost good faith, any extraneous consideration other than merit is a great sin entailing severe punishment”. The Judges case has been considered by most jurists and analyst to be a major milestone and one that helped the judiciary regain its lost respect and regard in the public eye.

In the Judges case it was also held that ‘consultation’ with the Chief Justice of Pakistan in respect of proposed appointees was ‘mandatory’, and that if such consultation did not take place it “would be violative of the Constitution.” Since consultation cannot take place with an individual who has not assumed the office of the ‘Chief Justice of Pakistan’ it follows that the judges who are to be appointed on January 10, 2002 will be appointed without consultation with the ‘Chief Justice of Pakistan’ and as such these appointments may be regarded as unconstitutional.

The meaning given to the word ‘consultation’ by the Supreme Court of Pakistan was “effective, meaningful, purposive and consensus-oriented leaving no room for complaints of arbitrariness or unfair play.” The Supreme Court of Pakistan further held that “in view of the relevant provisions of the Constitution and established conventions / practice, the most senior Judge of a High Court has a legitimate expectancy to be considered for appointment as a Chief Justice and in the absence of any concrete and valid reason to be recorded by the President / Executive, he is, entitled to be appointed as such in the Court concerned”. By implication and necessary analogy the same test has to be applied when appointments are to be made to the Supreme Court.

By appointing a relatively junior judge to the Supreme Court the Judges case is not being followed. Our courts have held that in order to ensure the cardinal principle of separation of the executive from the judiciary, the judges should not be made to hold executive office. But this government appointed a sitting judge as its law secretary, and who is also amongst the four to be elevated, bypassing a number of senior colleagues. Intimate relations between government functionaries and a judge creates an unhealthy environment. The Supreme Court has vividly depicted what may follow. “Most judges may feel that by having good terms with the government in power he can become the Chief Justice. This will destroy the institution and public confidence in it . It is, therefore, very important that the Chief Justices should not be pliable and they should act independently.”

It is being contended by some in the government, although not independently verified, that the reason for not appointing the Chief Justice of Punjab to the Supreme Court is because he did not want to be elevated to the Supreme Court. However, Article 206(2) of the Constitution stipulates that if a Judge has been appointed to the Supreme Court but does not wish to go there, he shall be deemed to have retired. It may, however, happen that the government rather than ‘appointing’, for instance a Chief Justice informally speaks to him and decides not to appoint him if he declines.

Therefore, a judge whom a government wants to be rid off is ‘appointed’ to the Supreme Court because if he does not agree to proceed there, he would stand retired. In respect of another it takes into consideration his wishes and permits him to continue as Chief Justice. The Chief Justice of a province by not wanting to be elevated effectively holds up the promotions of all judges and the ‘legitimate expectancy’ of the senior judge to become Chief Justice. Therefore, in such a situation the consent of all the judges should be taken, since they will be the ones paying the price to accommodate the Chief Justice.

A similar situation presented itself when Mr. Justice Ameerul Mulk Mengal, who was the then Chief Justice of Balochistan High Court did not want to be elevated to the Supreme of Pakistan and resultantly had to step down. Mr. Mengal paid a significant price for his refusal because he would have eventually become Pakistan’s Chief Justice and held the office for many years. The government has elevated to the Supreme Court only one Chief Justice, that of the Peshawar High Court, and appointed the other three from Punjab, none of whom were the senior-most judges. Why? The refusal by a Balochistan Chief Justice to proceed to the Supreme Court cost him his job in the service of Pakistan, but the government contrary to the precedent wants to accommodate the Chief Justice of the Punjab.

This is not the only instance of this government inducting certain judges from the Punjab. Earlier it elected not to refer the case of the two judges to the Supreme Judicial Council despite there being considerable evidence of ‘misconduct’ against them. It was only public outcry, which compelled them to tender their resignation and thus save the judicial edifice from further ridicule.

It is just this kind of duality in dealing that gives rise to brooding grudges, embitters otherwise noble minds and incites petty provincialism. The perception of injustice in the country’s eastern part and the complete insensitivity of those than governing Pakistan were exploited to tear it into two. The Hamoodur Rehman Commission’s Report has finally seen the light of day, but it may as well have been left buried in the darkest hole for all the lessons that we have failed to learn from it. It is the duty of every patriotic citizen to stand up against foreign aggression just as it is his or her duty to oppose the assault being launched on the judiciary, a premier national institution.



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