SPOKESMEN of political parties opposed to the present government, bar associations and other groups of lawyers, some editorial writers and columnists have been denouncing General Musharraf’s Legal Framework Order (LFO) ever since its promulgation as a package of amendments to the 1973 Constitution. Apart from their objections to some of its specifics, critics contend that the instrument, of and by itself, is wanting in legitimacy inasmuch as its author had no lawful authority to make it. They would want it to be annulled.
Yet one must also face the stark fact that elections to the National Assembly, the Senate, and the provincial assemblies have been held, and governments formed, under the authority of the very same LFO. It is not surprising then that many of the critics, notably the elected politicians, want only some of its parts to be undone.
The LFO includes numerous amendments to the Constitution. The objection here is that the Constitution itself names an authority and prescribes a certain procedure for making amendments. That way is said to be the only way amendments can be made. Those written into the LFO have not been made in the prescribed manner; they are the general’s handiwork and, therefore, no part of the Constitution. But then what about the Supreme Court’s judgment that not only legitimized General Musharraf’s coup d’etat but also conceded him the authority to amend the Constitution.
Some observers have asserted that it was none of the court’s business to give the general an authority that was not its own to give. I suggest that there is another way of interpreting the court’s work. It did not give the general the authority to amend the Constitution; it merely recognized his possession of this authority as a consequence inherent in his initial act of seizing power.
Considering that the Supreme Court is the court of last resort for determining the legality of acts, transactions and propositions, it is strange that the critics of the LFO have not taken the issue of its legal status to that court to settle. Aware, most probably, that they will not get their wish in that quarter, they have chosen to rely on various means of harassing the present government — non-cooperation, disruption, protest movements, street power — in hopes of bending it to their will.
They have not allowed the National Assembly, elected more than seven months ago, to do any legislative work. General Musharraf has not met his obligation to address a joint session of parliament because they have threatened to disrupt it. Mr Javed Hashmi, acting president of the PML (N) has recently declared that his party would not let the government present the annual budget to the National Assembly (presumably by resort to boisterousness on the floor).
Is the opposition’s strategy working? To an extent, yes. A joint committee of the government and opposition representatives has had ten meetings in May to see if they could all agree on what must be done with the LFO. Prudently enough, the opposition does not insist that the entire document be scrapped. Its concerns are now focused on seven or so of the LFO’s provisions. It is not at all clear that its objectives can be realized without running into a host of grave legal and practical difficulties.
The opposition argues that if the LFO is to be made a part of the Constitution, it should be submitted to parliament, which in its wisdom may (or may not) accord it the desired status. In that event the government will probably have to present it as a bill of proposed amendments, conceding necessarily the opposition’s view that it is not a part of the Constitution at this time. But the government cannot then justify its own existence or that of the numerous other bodies and arrangements that have come into being with the LFO’s authorization. It will then be opening doors to sweeping chaos and anarchy. Surely this is not the result the opposition wants.
The way to go then may be first to drop the argument that General Musharraf had no lawful authority to make amendments to the Constitution. The opposition will have to accept, even if quietly and perhaps even indirectly, that the LFO is indeed a part of the Constitution. It can then go on to argue that, their legal validity notwithstanding, parts of it will work as impediments to good governance and should therefore be repealed. The government can then move an amendment bill to repeal those provisions of the LFO that both sides to the issue have agreed to throw out.
The opposition has identified seven LFO provisions as being intolerable. The foremost of these are the ones that allow General Musharraf to serve as president and as the army chief of staff concurrently. There is objection also to the provision that enabled him to appoint himself president for a five-year term. The opposition wants him to step down as the army chief and, then, seek election to the post of president in the manner prescribed in the Constitution.
The government team in the negotiations referred to above agrees that no person should hold these two posts at the same time. But it is urging the opposition to allow the general a “reasonable timeframe” for making the transition. The general is most reluctant to take off his uniform, for reasons that are not hard to fathom, but he may eventually be persuaded to take that leap by a mutually acceptable date.
The proposal that General Musharraf should seek election to the post of president is fraught with greater complications. If he were still the “chief executive,” he could have sought election to the other post. But that situation is gone beyond recall. It would now be ridiculous, and perhaps also legally untenable, for him to seek election to an office that he already holds. He might conceivably resign his present post, become an ordinary citizen, and then contest.
Leaving aside the very tedious question of who would serve in his place until a new president was found, resignation could land him deep in a dark and winding tunnel where he saw no opening and no light on either side. Parties in the MMA say they will support Musharraf’s bid for election. But other opposition leaders have declined to make any such commitment. If the general does step down to the station of an ordinary citizen, the MMA may well change its mind and join hands with those who will want to try him under Article 6 of the Constitution and, in addition, charge him with numerous other “crimes.”
The idea that General Musharraf may resign his post now and then run for it will not do, and he will not accept it for the reasons mentioned above and others that may weigh with him. The opposition will do well to drop this demand and accept him as president for the sake of the country’s political stability. This concession may hasten his decision to quit as the army chief. Next in line is the matter of critical powers that the general is said to have concentrated in his own hands under the LFO. Appropriation of these powers is regarded as subversive of the parliament’s supremacy or, if you will, its “sovereignty.”
The notion of the parliament’s supremacy is misunderstood. Unlike the British parliament (which is sovereign in law if not in fact), our parliament is subject to the Constitution, the Quran, and the Sunnah, and therefore far from being sovereign. Its executive authority is exercised, and its legislative authority is guided, by the prime minister and his cabinet, who act on behalf of the ruling majority in the National Assembly. In our case, the prime minister has happily announced more than once that he works for General Musharraf, and that the general is his “boss.”
The cabinet and the ruling coalition voice no objection to this arrangement. If those who exercise the parliament’s authority do not insist on being “supreme,” opposition politicians have no reason to moan and groan over the alleged loss. They may say that they are out to defend a principle. But why elevate to the status of principle something like the division of powers between the president and the prime minister that is best left in the domain of the expedient (“hikmat-i-amali”)?
Let us now take a quick look at some of the specifics. The first culprit here is the president’s authority to dismiss the national and provincial legislatures and governments incorporated in the Constitution (Article 58-2B) by General Ziaul Haq in 1985, repealed on Nawaz Sharif’s initiative in 1998, and revived by General Pervez Musharraf in 2002. The oft-repeated argument that the president’s authority under this Article works as a safeguard against military interventions is not necessarily valid. Yet, it makes sense to place somewhere in the political system the capability for dismissing an intolerably incompetent or blatantly corrupt government.
Normally it should be the function of the majority party in parliament to remove an unwanted government and assemble another in its stead. But this has not happened in our experience, and it has fallen to the president to dismiss bad (or allegedly bad) governments.
The Constitution and the parliamentary tradition do not empower the president to dismiss a government that commands majority support in the assembly. He has, therefore, had to dismiss the assembly itself to get rid of a particular government.
But there is nothing to stop us from being innovative. We can insert a provision in the Constitution authorizing the president to dismiss a government without having to dismiss the legislature at the same time. Some such arrangement — with appropriate safeguards against presidential high-handedness — may be acceptable to the opposition.
There are other powers and prerogatives that the LFO confers on the president to which the opposition objects, but I have run out of space, and a consideration of those will have to be deferred till next week.
The writer is professor emeritus of political science at the University of Massachusetts at Amherst.
On the Taliban track?
THE NWFP ministers have denied either encouraging or conniving at the destruction of video-music shops or smearing of billboards with female faces prior to the introduction of the Sharia bill in the provincial assembly. The ministers thus have unwittingly admitted the danger inherent in their hallowed enterprise.
The law derived from the holy Quran and life-example of the holy Prophet to whom it was revealed cannot be but perfect. The fault lies in the people who enact the statutes and even more in those who enforce it. The enactment can be flawed or based on disputed interpretations.
Its enforcers can use it to harass the dissenters and the minorities or the political adversaries of the government and even to settle personal scores.
The statement of the ruling party that it was not a party to the vandalism is not at all convincing. The administration certainly made no attempt to stop it. On the contrary, by some accounts the rampaging hooligans were trailed or escorted by the police.
If the administration wanted to prevent disorder and damage, one SHO (police sub-inspector) supervised by a magistrate would have sufficed (having been a magistrate myself for 15 years — six of them in NWFP — I say it with a sense of responsibility and not out of aplomb).
A news analyst from Peshawar wrote in Dawn the other day that as the vandals wrecked the shops and hoardings, the provincial police chief acted like an SHO. Aspersion on the IG apart, the comment is an insult to the SHO. Even the weakest of the breed would have put them to flight unless he was directed to look the other way. However, the Frontier maelstrom once again brings into focus the point that the law and order in the country has become subservient to the interests of the ruling cliques; the public servants responsible for maintaining it have become their tools.
As was expected, the bill has turned out to be a damp squib. It could not be otherwise. The federal government cannot allow a province to tinker with the penal laws of the country nor the State Bank with its banking regulations.
The bill has no provision to relieve the people of their pain and poverty but plenty to harass and punish them. Besides a host of existing agencies like the police, FIA, NAB, tax and excise authorities (to name just a few) with whom the people have to contend, another more menacing force is being created to spy on their morals and rituals. That recalls to mind the zakat money (collected under Zia’s Islamic edicts) spent on luxury cars or on pleasure trips abroad. More amusingly, a libertine deputy commissioner fallen out of favour was appointed as nazim salat (administrator for prayers) who, as long as he held that office, felt guilty for not punishing himself.
Ziaul Haq the dictator is gone but not the humiliation he inflicted on the life and conscience of the people. So will also go the divines and zealots of the North-West Frontier, as have their more puritanical cousins across the frontier, but their legacy of defiance of law and decency will linger for long.
Salim Saifullah, the NWFP Q-League chief, assures his people that the federal government would not permit the MMA to enact the Hisba law despite its majority in the provincial assembly. Such an intervention would be both illegal and short-sighted.
He should let the self-proclaimed interpreters of Quranic injunctions and custodians of people’s morals hoist by their own petard. It wouldn’t be long. No earthly power can punish what Allah the Almighty has left to the good sense of men. Where a Divine command does not work a provincial statute will not. The eternal law of the Quran and Sunnah has survived the violence of the clerics through the ages to reign supreme when a society is ready for it.
For the violent enforcers of sharia just one test may be prescribed for now: they should use their power of persuasion and punishment to stop the legendary money-lenders of their province from lending to the poor at three to four times the bank rate. The worldwide web of interest (riba) in which Pakistan is caught can be tackled later. The banks should be allowed to function till the MMA has done away with the money-lenders in the NWFP.
Notwithstanding its serious implications and lighter moments, the sharia campaign in the NWFP remains a minor distraction from the country’s constitutional crisis which is getting graver by the day. Increasingly it looks as if it would end either in a theocracy (if Ch. Shujaat and Maulana Fazlur Rahman had their way) or in an authoritarian rule (if Musharraf loses nerve). Even if by an outside chance the moderate elements prevail to keep the country on democratic rails, the newfangled system and the credibility of its makers and opponents is so badly shaken that it would not last long. The disgust of the people is turning into despair which soon might erupt into agitation and violence.
The common reading of the situation is that those who are in power want to stay in power and those who are out of it are negotiating or fighting their way into it.
The calculation is only about the profit or loss involved in the concessions and demands being made and the durability of the bargain. Never was politics so personal and divested of morality and trust.
The institutions with judiciary heading the list are but a pale shadow of what they used to be. President Musharraf, informed by a motley crew (which falls somewhere between a think tank and a cabal), insists the people and the police whom he has empowered are contented and performing well. The discontent and noise are confined to a few whose inherited or vested interests have been hurt by his reforms.
With that belief he should not rely on the army but go to the people for election as president under an impartial and competent election commission (the one which conducted the referendum was neither). If he wins competing with the others who might choose to contest in a countrywide election, that should be construed as a mandate for him to purge politics and reform the Constitution. At the moment both are potpourris and the country is in a mess. If he loses he should depart leaving the people to the shenanigans of the politicians and bureaucracy which never really ceased under his rule.
A Kashmir roadmap
ONLY the Avian species may cross the Wagah border undeterred. The bovine and human species that roamed freely for many a millennia in the flat Punjab landscape is stopped by the 1,000-mile double barbed wire fence and armed soldiers in pillboxes that separate the two countries.
A no man’s land — a short stretch — has to be walked by the traveller. This sad piece of earth, immortalized by Manto in his story ‘Toba Tek Singh’, symbolizes the utter futility and the self-destruct of humans. At either end of this stretch are mock Roman semi-amphitheatres for a sundown ‘danse macabre’ for spectators from their respective countries to watch in what must be the most jingoist ceremony on earth.
Goose-stepping soldiers in full livery march in opposite synchronization to lower their respective flags after which the massive gates are shut with a vehemence which reverberates to nationalistic wild cheering from the conditioned spectators at either end. Such is the daily routine at the only Pakistan-India land border point.
A rapport between our two countries might well begin at the border. The militaristic chauvinism of the spectacle should give way to ceremonies which reinforce our common heritage. Let the massive gates never be shut as a symbolic gesture. Like it or not, we are joined to our neighbour by culture, language, history and the flow of rivers.
To sketch a roadmap leading to some Kashmir resolution is to draw sketches in water. A compromise based on ground realities is anathema to the nationalists, jingoists, militarists, ideologues, spin-doctors, bureaucrats and respective Hindu and Muslim baiters. The power of this lobby can only be eroded over time if the millionfold connections between ordinary decent folk and trade is restored.
Where do we begin? For in our beginning is our end.
A Kashmir roadmap begins and ends with what the Islamists consider Jihad and what the rest of the world labels as terrorism. Not all jihadis are single-minded terrorists. Consider the case of the brave commander, Abdul Majid Dar of the Hizbul Mujahideen (HuM), who declared a ceasefire in July 2000. Here was a son of the soil, a respected leader and a popular commander of fighting men in the Valley trying to reach some sort of compromise. For this sin he was expelled by his group and finally assassinated last April. Fire-breathing ideologues are never the fighting dragons. They are mostly the armchair, microphone chirpy, publicity hungry, and spin-doctors.
The rank and file of the so-called jihadists are innocent, unemployed youth fired by religious zealotry, a fixed allowance and the call to heroism. They are easily brainwashed. Consider these remarks from a recent interview of Professor H.M. Saeed of the Jamaat-ud-Dawa (Weekly Independent, May 1) “We should say adieu to the frustrating slogan ‘Pakistan First’ and demonstrate our courage”. And on suicide attacks: “They are absolutely in accordance with Islam. In fact, the best form of jihad.” After reading a dozen such statements one gets the eerie feelings that the learned professor would not bat an eyelid in using a nuclear weapon if he had one on “Hindu India,” his bete noire. That Muslims would be killed collaterally along with the Hindus is a detail that appears to have been overlooked.
Indian Muslims are about the same number as in Pakistan. De Tockerville once said, “He who seeks in freedom something other than freedom is destined to servitude.” One recalls the communists of yesteryear who participated in the institutions of freedom avowedly to destroy them. All utopianists use the freedoms of civil society to demolish it, and on its ruins establish their own dictatorship.
Pakistan should declare a war on the so-called jihadists, not because India or the US and much of the world say so, but to preserve our own sanity and save our misguided innocents (last week 23 of our youngmen were killed by the Indian army in an encounter). In a worst case scenario a civil war might erupt. So be it: the Quaid’s Pakistan is bound to be victorious. Let’s remember that these doctors of death can be the harbingers of a nuclear war in the subcontinent; a war that nearly happened last summer.
An end to terror spawned in Azad Kashmir or Pakistan will certainly not mean the end of violence in Indian held Kashmir. What will emerge is the true self-reliant liberation fighter — like the brave commander Dar willing to fight the war of the brave as well as to make the peace of the brave. He will never attack the defenceless or women and children. For him violence is not an end in itself but a means to honourable peace based on objective realities.
We hanker for a dialogue with India as if a dialogue will resolve any problem. It will not. Is it not a case of deja vu? Pakistan must move firmly onto the path of civility. If not it will be the same twilight zone of half peace and half war as in the past 55 years.
One thing that the Kargil episode has finally taught us is that no change of borders is possible by aggression, let alone by terrorism. This certainly does not mean that we accept the status quo in the Valley.
The task of reining in terrorists should be carried out in a manner that would convince world that it is really so. The onus thereafter would be on the two countries to enter into negotiations for a roadmap leading to sanity and solution. Let the dialogue start on the basic premise that the LoC as an international boundary is not acceptable to Pakistan. Reason: the internal backlash will not permit it. Likewise, border change in Kashmir on communal lines is not acceptable to India. Reason: it triggers huge consequences for the Muslim community in India.
So what should be the ultimate solution? None other than to move the bone of contention — the Kashmir Valley — in a direction of virtual independence, which, incidentally, accords with the demands of its inhabitants. A relaxed, large-hearted, progressive and non-reversible autonomy under Article 370 of the Indian constitution is the obvious starting point. Autonomy over a period of time in a situation of peace must rapidly evolve to quasi-independence and finally independence.
There is no real dispute except between pedants and lawyers as to where Jammu and Ladakh belong as well as Azad Kashmir and Baltistan. By mutual consent India and Pakistan should agree to the legal absorption of these territories on an “as is” basis. The area of contention will be narrowed down to a stretch of approximately 60 miles by 20 miles — that is, the Valley; on its status the two parties may agree to disagree.
The quantum of autonomy that the Valley administration would enjoy is the key issue: it should have the right to raise its own armed forces; to have trade relations with other countries as do the Walloon parts of Belgium which, incidentally, have a trade office in Islamabad; and the power to regulate visitor entry from both India and Pakistan. In effect it will be India’s Hong Kong or France’s Andorra — a studied ambiguity which allows people to live and prosper on the fault lines of history.
There could be a number of variations of this scheme and the discussion between India and Pakistan may take many a year before an agreement is reached. For the negotiations to succeed, a roadmap is needed to improve the political ambiance of the subcontinent. No agreement is possible in the present prickly state. It is the right atmospherics which will eventually bring about an agreement — not the other way round. Suggestions for a roadmap:
Step 1: Let the two countries draw inspiration from — and hold as a working model — the Indo-Chinese agreement of 1996 on their Himalayan border dispute, which is far more complex than the Kashmir imbroglio. Troop dispositions on either side of this LoC, weaponry and soldiers are regulated by this agreement. The Chinese have chosen to call it a Line of Tranquillity, and this is exactly what it is. No hostile LoC incident has taken place in the past seven years. The dispute however remains and is a subject of patient negotiations. According to western reports, agreements are being reached — slowly but surely.
In the Kashmir context certain additions to the model may be necessary in terms of intelligence sharing on terrorists, joint patrolling and the opening of exit points on the LoC to soften it. Political prisoners may also be released and elections held under the supervision of Amnesty India and the state government under the extended provisions.
Step 2: Troops be mutually withdrawn from Siachin as per the near agreement of 1989 and reduced in the Valley over two years to 1988 levels. Pakistan should permit the opening of the Khokrapar border and Indian consular offices in Karachi. India should facilitate the handing over of the Quaid’s house in Mumbai for Pakistan’s consular offices. Trade should be opened up in accordance with Saarc agreements and road, rail and air links restored and expanded. Pakistan’s hang-ups on trade imbalance and India’s hang-ups on the passage of energy lines from Central Asia crossing Pakistan should be overcome.
Step 3: Both countries move to resolve mutually or by arbitration the water disputes, which have arisen on India’s damming the rivers allotted to Pakistan under the Indus Water Treaty. Little is realized that some settlement on Kashmir is imperative, if for no other reason than to secure our life line which depends on the three rivers allotted to us under the treaty; they all emanate from Kashmir. Negotiations can be entered into for the final settlement of all parts of the Jammu and Kashmir state, excepting the Valley, on the basis suggested above.
Step 4: The trade-off for Pakistan cutting off all jihadist/terrorist linkage is for the Valley to move in the direction of special status under Article 370 of the Indian constitution. Autonomy should be real, meaningful and positive and, above, all non-retractable.
Step 5: Full autonomy say over 10-15 years will eventually obfuscate the issue of sovereignty. The people of the Valley should be sovereign. This step at the moment is in the distant future. And the future is a land without any maps. As Keynes said, we are all dead in the long run. Let us for now save the present for the future.
The writer is a member of the National Assembly.
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