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DAWN - Opinion; January 07, 2008

January 07, 2008

PCO and its victim judges

By Justice Sajjad Ali Shah

OUR Constitution is the basic law of the country and is the fountainhead of all other laws, which are subordinate to and consistent with it. The oath of office is prescribed to important office-holders in the third schedule to the Constitution, and calls on them to preserve, defend, uphold and act according to the basic law.

Judges of the superior courts and officials of the armed forces also take the oath with an additional requirement for armed forces personnel — they are required to steer clear of political activities.

If the Constitution stands suspended, the oath of a judge remains intact because he acts according to law which includes a suspended Constitution, essentially an extraordinary situation. A judge, having taken oath under the Provisional Constitution Order (PCO), can declare both the suspension of the Constitution and the PCO illegal.

The country has seen constitutions abrogated in 1958 and 1969 and martial laws imposed. But the judicial system continued as it was, without any removal of judges. In 1971, after the war with India and the consequent fall of Dhaka, West Pakistan saw Zulfikar Ali Bhutto become president and the first civilian CMLA.

The martial law imposed in 1969 continued, with many government officers being dismissed and retired on grounds of misconduct, without a mandatory inquiry. However, some were retired following scrutiny of their record and in consultation with the chief justices of the high courts.

In 1977, General Ziaul Haq imposed martial law, suspending the Constitution instead of abrogating it as was done on two previous occasions. The Supreme Judicial Council was approached to investigate whether any judges in the high courts were selected for political reasons and, after an inquiry and the right of personal hearing, several were retired as political appointees.

As if this was not enough, the 1981 PCO was promulgated after the Supreme Court granted validation to the martial law, empowering the CMLA to amend the Constitution.

As a result, many judges were retired from the Supreme Court and the high courts without having their say. This PCO came after a delay of four years as the Supreme Court had granted conditional validation that required all orders and regulations passed by the regime to be subject to judicial review by superior courts. Hence, such orders were often challenged in the courts, much to the chagrin of the martial law authorities.

The martial law administration also wanted the courts cleared of non-cooperative, independent judges; hence a list from the federal ministry of law ensured that the selected ones were not invited to take oath.

In 1981, I was a judge in the Sindh High Court. The Chief Justice was instructed by the federal law secretary in Islamabad to meet the governor of Sindh, and he returned from the meeting to announce that two judges from the Sindh High Court, Abdul Hafeez Memon and G.M. Shah, would not be allowed to take oath. All other judges were asked to appear before the governor at 2 pm.

Some in the Sindh High Court argued that if all judges boycotted the oath-taking and bowed out, other pliant ones would replace them and therefore it was far wiser to fight from within. Meanwhile, events in other high courts were kept under wraps. After the oath, it transpired that countless judges had not been called and all those who declined to take the oath became heroes, garnering much admiration from members of the bar and the public.

In fact, despite attempts to conceal the events in the Supreme Court, certain proceedings did come to light. Chief Justice Maulvi Mushtaq of the Lahore High Court, who headed the bench of five judges and sentenced Prime Minister Zulfikar Ali Bhutto to death, had fallen out with President Zia.

Maulvi Mushtaq had been elevated to the Supreme Court but, although ready to take oath, he was not invited. Chief Justice of Pakistan (CJP) Anwar-ul-Haq invited all the judges of the apex court to his chamber to discuss this matter and the fact that the PCO barred the jurisdiction of the courts.

The CJP began with the junior-most on the list, ad hoc Judge Fakhruddin G. Ebrahim, who replied that although he was not party to the judgment in Nusrat Bhutto’s case, he had followed it and since the PCO curtailed the jurisdiction of the court and nullified the effect and object of the judgment, he would not take oath.

For similar reasons, Justice Dorab Patel also refrained but all other judges agreed and lastly the CJP declared that since he was the author of the judgment, he too would opt out.

The actual facts remain with the federal ministry of law but rumour has it that only Maulvi Mushtaq was not invited. If this is true then apart from Fakhruddin G. Ebrahim, hats off to Dorab Patel who refused to become the CJP. It is worth a mention here that Dorab Patel, Mohammad Haleem and G. Safdar Shah had acquitted Mr Bhutto. It thus became clear that General Zia believed that under the PCO of 1981, he had the right to pick and choose judges favoured by the government and axe others.

On Oct 12, 1999 General Pervez Musharraf suspended the Constitution. Another PCO replaced the Constitution. One of the seven points in the speech the general gave shortly after taking over was his pledge to rebuild institutions. Interestingly, the Supreme Court came under attack again. Finally after a delay of three months, 15 judges were not given an oath under the PCO. These included five judges of the Supreme Court who chose to stay out.

However, General Pervez Musharraf has the unique distinction of imposing ‘martial law’ twice in the same tenure. On Nov 3, 2007 he imposed emergency-plus with the suspension of the Constitution and promulgated the PCO under which he sent home 13 out of 17 judges of the Supreme Court, including Chief Justice Iftikhar Mohammad Chaudhry, and prevented about 50 judges of the high courts from taking oath.

This is how the entire judicial system was demolished to avoid a judgment from the apex court that restricted Musharraf from holding dual office — that of the army chief and the president’s — and denied him eligibility in the elections if he chose to stay in uniform. President Musharraf succeeded in obtaining an interim order to proceed with the polls. Apprehending a judgment against him, the president introduced the PCO to turn the judiciary around and the new Supreme Court issued a judgment in his favour on the basis of the law of necessity.

It is surprising how the western powers have been able to digest this unconstitutional and malafide action of dismantling the judiciary, an essential pillar of democracy. How this issue has been sidelined in favour of the elections is amazing. If the elections are held, President Musharraf may have a hung parliament of his choice and the issue of restoration of judges will certainly recede into oblivion.

The writer is a former Chief Justice of Pakisan.

Kenya: hope and betrayal

By Gwynne Dyer

MORE than two years ago, when Kenya’s current opposition leader, Raila Odinga, quit President Mwai Kibaki’s government, I wrote the following: “The trick will be to get Kibaki out without triggering a wave of violence that would do the country grave and permanent damage…. Bad times are coming to Kenya.”

The bad times have arrived but the violence that has swept Kenya since the stolen election on Dec 27 is not just African ‘tribalism’. Kikuyus have been the main target of popular wrath and non-Kikuyu protesters have been the principal victims of the security forces, but this confrontation is about trust betrayed, hopes dashed and patience strained to the breaking point.

Nobody wants a civil war in Kenya, but it’s easy to see why Raila Odinga rejects calls from abroad to accept the figures for the national vote that were announced last Sunday. If Odinga enters a ‘government of national unity’ under Kibaki, as the African Union and the United States want, then he’s back in the untenable situation that he was in until 2005, and Kibaki will run Kenya for another five years.

If Odinga leaves it to Kenya’s courts to settle, the result will be the same: there have been no verdicts yet on disputed results that went to the courts after the 2002 election. So when the opposition leader was asked by the BBC if he would urge his supporters to calm down, he replied: “I refuse to be asked to give the Kenyan people an anaesthetic so that they can be raped.”

Despite the ugly scenes of recent days, Kenya is not an ethnic tinderbox where people automatically back their own tribe and hate everyone else. For example, it is clear that more than half the people who voted Mwai Kibaki into the presidency in the 2002 election were not of his own Kikuyu tribe, because the Kikuyu, although they are the biggest tribe, only account for 22 per cent of the population.

Kibaki’s appeal was the promise of honest government after 24 years of oppressive rule, rigged elections and massive corruption under the former president, Daniel arap Moi. If he had been just another thug in a suit, most Kenyans would have put up with Kibaki’s subsequent behaviour in the same old cynical way, but his victory was seen as the dawn of a new Kenya where the bad old ways no longer reigned. It is his abuse of their high hopes that makes the current situation so emotional.

By 2005, Kibaki’s dependence on an inner circle of fellow Kikuyu politicians was almost total and the corruption was almost as bad as it had been under Moi. The British ambassador, Sir Edward Clay, accused Kibaki’s ministers of arrogance and greed which led them to “eat like gluttons” and “vomit on the shoes” of foreign donors and the Kenyan people. The biggest foreign donors, the United States, Britain and Germany, suspended their aid to the country in protest against the corruption.

Most of the leading reformers quit Kibaki’s government in 2005, and in the weeks before last month’s election their main political vehicle, the Orange Democratic Movement, had a clear lead in the polls. That lead was confirmed in the parliamentary vote on Dec 27, which saw half of Kibaki’s cabinet ministers lose their seats and gave the opposition a clear majority in parliament. But the presidential vote was another matter.

Raila Odinga won an easy majority in six of Kenya’s eight provinces, but in Central, the Kikuyu heartland, the results were withheld until long after the vote had been announced for more remote regions. Observers were banned from the counting stations in Central and the central tallying room in Nairobi — and on Dec 30 Samuel Kivuitu, the chairman of the electoral commission, declared that Kibaki had won the national vote by just 232,000 votes in a nation of 34 million.

It stank to high heaven. Ridiculously high turnouts were claimed for polling stations in Central — larger than the total of eligible voters, in some cases — and 97.3 percent of the votes there allegedly went to Kibaki. It was an operation designed to return Kibaki to office while preserving a facade of democratic credibility, but no foreign government except the United States congratulated Kibaki on his ‘victory’, not even African ones, and local people were not fooled.

Within two days Samuel Kivuitu retracted his declaration of a Kibaki victory, saying that the electoral commission had come under unbearable pressure from the government: “I do not know who won the election…. We are culprits as a commission. We have to leave it to an independent group to investigate what actually went wrong.”

But Kibaki is digging in and innocent Kikuyus — many of whom did NOT vote for Kibaki, despite the announced results — are being attacked by furious people from other tribes. Meanwhile, the police and army obey Kibaki’s orders and attack non-Kikuyu protesters. It is not Odinga who needs to accept the ‘result’ in order to save Kenya from calamity; it is Kibaki who needs to step down.

He probably won’t, in which case violence may claim yet another African country. But don’t blame it on mere ‘tribalism’. Kenyans are not fools, and they know they have been betrayed.

The writer is a London-based independent journalist.

Musharraf’s disorder

By Farhan Bokhari

A WEEK after Benazir Bhutto’s assassination in cold blood prompted a furious public response across Pakistan, President Pervez Musharraf’s ability to steer the country out of this latest political storm appears to be increasingly in doubt.

Even if the chaos which has now engulfed the country begins to recede, there is every chance of Pakistan chugging along from one political deadlock to another as its ruler seeks to solidify his own fragile position. During his eight-year rule, the former general turned recently elected president has repeatedly defied his political foes with his well-known penchant for putting on a brave face in moments of adversity. This time round though the scope of the challenge faced by President Musharraf is far too profound to be tackled easily.

Indeed, a Herculean effort will be required to take Pakistan out of its present spate of uncertainty and take it towards building the foundations of an unprecedented national unity. That challenge lies well beyond the capacity or scope of a single leader, especially a controversial one like Mr Musharraf.

Pakistan’s well-endowed military which has ruled the country for more than half its life as an independent state also has few solutions to tackle the present challenge. In the heat of the moment recently, politicians from the Pakistan Muslim League (Quaid-i-Azam), who still indirectly rule the country through their card-carrying members in the present interim administration, have suggested that a total breakdown will lead to an ‘extreme’ situation.

For Pakistanis, hints of ‘extreme’ situations are indeed only reminders of the possibility of returning to martial law. For the sake of argument, if indeed General Ashfaq Kiyani, the new army chief, staged such a takeover, he will quickly face the tough question of what must follow as stabilising action beyond ordering his troops to seize strategic locations and leading individuals.

Unlike the past when coups were popular at least in the short term, this time around a new coup will find few takers across the country. The controversies built up under Gen Musharraf’s command of the military will not change the popularly dismissive attitude towards the once accepted notion of the military being the option of last resort to save Pakistan.

In the immediate aftermath of the fallout from Ms Bhutto’s assassination lies a combination of issues principally tied to Pakistan’s tragic political history while it carries on being a country locked in increasing internal disarray.

Yet another high-profile Sindhi politician returning home in a coffin is hardly encouraging for the people of the province, where scepticism over the idea of future association with the Pakistani federation remains a recurring political theme. Matters were made worse by the way the circumstances surrounding Ms Bhutto’s tragic death were tackled by the ruling regime. Has anyone heard of a lethal lever in the sunroof of a Toyota Land Cruiser?

Javed Cheema, a retired brigadier of the Pakistan Army and now the official spokesman of the ministry of interior, took it upon himself to come up with what he thought was a sound explanation of exactly how Ms Bhutto’s life was taken. Mr Cheema, now no more than an official ‘Baboo’ in our interior ministry, was keen to make us believe that inside the sunroof of Ms Bhutto’s vehicle was a lever against which she struck her head so forcefully that she received a fatal wound. Not just a horribly ridiculous account but indeed a frivolous way to demean a major tragedy.

As if Pakistan’s khakis were not in enough trouble already with a long exposure to the numerous facets of civilian life, they must now also cope with faux pas from one of their formerly own, to of course little productive consequence.

Even before Ms Bhutto’s assassination, Pakistan’s outlook was suffering badly in a year when President Musharraf in his previous position as also the chief of army staff brought it upon himself to pick battles on an unprecedented number of fronts. Going to war against the judiciary and the media, not to forget some of the unnecessary curbs on opposition political parties and members of civil society, were cases all too well documented to be easily forgotten.

Ms Bhutto’s assassination has not only exposed the failure of President Musharraf’s regime in providing security to a variety of Pakistanis from common citizens to high-profile politicians. More vitally, the bigger failure now must come from a demonstrable inability to pick up the pieces and set a new direction for the future of the country.

Even the promise of elections will not help repair the damage already done as the polls cannot lead to political stability if an increasingly unpopular leader remains in charge of Pakistan. While the president will inevitably try exercising so-called checks and balances on a new political and parliamentary order, his foes will probably lose no opportunity to reject his future political experiments.

As long as Mr Musharraf is in power, his future political road map will ultimately hinge on one objective — to save an increasingly beleaguered and potentially reckless president. Even if the president succeeds in getting the right balance of political forces inside parliament, there is no way he will be able to change the popular mood which is increasingly anti-government and more dangerously even anti-state.

For even the president’s loyalists, if indeed the past year has been a reflection of the future, the year 2007 will be remembered more for President Musharraf repeatedly shooting himself in the foot rather than beginning to stabilise what is clearly a government surrounded by much political disarray and disorder.

But now with Ms Bhutto’s tragic assassination comes another dimension to this increasingly acute challenge. The idea of Pakistan holding together as a federal state with its four constituent provinces can only be successfully pushed ahead through a credible democratic order. The lack of credibility surrounding the head of the state — President Musharraf — will however remain an almost insurmountable road bump. There is little that pro-Musharraf politicians or the pro-Musharraf mandarins in government or even the Pakistani military can now do to restore the president’s credentials which have been frittered away since March last year when the suspension of Supreme Court Chief Justice Iftikhar Mohammad Chaudhry became the first shot fired in an increasingly reckless campaign to take all power, irrespective of how that will be seen by the large mass of the people of Pakistan.

The bottom line is simply that controversies surrounding Gen (retd) Musharraf have raised more questions than thrown up answers, not just over the future of Pakistan’s democracy-starved politics but in fact over a range of complex challenges faced by the country. What is happening in Pakistan today is a powerful reminder of the country’s tragic political history. Looking at the future, the record from the past year speaks for itself.

The writer is an Islamabad-based journalist.

Leadership & postmodernism

By Prof Khwaja Masud

THE airport of a metropolis is the emblem of our turbulent times. It may be considered a social force in its own right — a metaphor for a cluster of related technologies and social developments. Travellers from every corner of the world stream in and out, travellers with cultural baggage and economic interests that bear no relation to those of their fellow passengers.

They move in different directions, yet they form a collective. The airport, like the world we live in, is a confusing place. The passengers may not have anything in common; but for airports to work, workers and passengers alike must understand and adhere to a complicated combination of rules and regulations.

The international airport is both an agent and a symbol of the new global economy that is eclipsing the nation state. It is also a symbol of man’s triumph over the forces of nature; yet quite often subject to the vagaries of the weather. Michel Foucault, the postmodernist French philosopher, has a one-word description of the airport — heterotopia. Utopia is a place where everything is good; dystopia is a place where everything is bad; heterotopia is a place where things are different, i.e. a collection whose members have few intelligible connections with one another. This, increasingly, is what we perceive our world has become: to feel this perception is to enter the postmodern world.

Some see a utopian future of mass affluence made possible by the third wave of capitalism (the third wave is surging ahead after the collapse of the Soviet Union). Others see a dystopic future in which political power and economic inequality defend themselves through their control of new technologies and information networks.The nation state itself is the subject of sharply contrasting predictions. Some point to the erosion of national sovereignty by international market forces and the multinational companies, and to the decentralising effects of the electronic highway which pierces through every boundary — geographical, political and ideological. As a consequence, some proclaim the imminent demise of the nation state. Others look at the intensification of ethnic loyalties and see a revival of ethnic chauvinism and national rivalries. Some see a future of unlimited abundance based on humanity’s increased control of natural forces; others think that the earth is on the verge of Malthusian disaster and an ecological apocalypse.

The dominant feature of postmodernism is not only that all these scenarios are plausible, but also that no one is sure. The prevalent mood is that of uncertainty — uncertainty which leads to scepticism ending in anarchy or fundamentalism, i.e. going back to the past in search of a panacea.

Taken together these experiences of powerful but opposing historical currents constitute the basis of the phenomenon of postmodernity. In our age, contradictions intensify but are not resolved. We have lost the confidence that our ancestors had, that they would be resolved in due course. Hence our ancestors had faith in progress, which we have lost. We live in a heterotopia.

Francis Fukuyama has declared the end of history, because liberal democracy has triumphed over Marxism and ideologically; there is no going beyond it. Alternatively, the French social critic Jean Baudrillard argues that history may have ended because we have realised that progress was an illusion from the beginning.

The unresolved debate is whether heterotopia is a utopia or a dystopia. The optimist of the right sees postmodernism as the triumph of laissez-faire capitalism. The postmodernist of the left sees the collapse of the Soviet Union as the opening up of new prospects of liberation. As the structures and myths that perpetuate social control and conformity disappear, the new autonomy of ethnic minorities and, above all, the new freedom of women, appear to point towards a more humane and open future. Some of them interpret postmodernity and the end of contradiction as the collapse of the quest for justice and social liberation. They see postmodernity not as a triumph over oppression but as the triumph of oppression.

None of these positions does full justice to the postmodern world. Postmodernity is a very complex condition and its relationship to collapsed socialism is more dynamic than either its fans or its critics appreciate. Postmodernism is not the end of history; rather the moment in which observers become aware that modernity has given way to something new. It is a moment in both the chronological and philosophical senses of the term. It is a short period of time and it is a stage in a larger process of dialectical change. Postmodernism is less the manifestation of the solution of the world’s problems than a statement of them; it is less the finale of the past age than the overture of the next.

What is the role of the leader in the postmodern world? First of all, the leader must understand the dynamics of the postmodern world. Only then will the leader be in a position to guide the people through its intricacies. The leader must never lose sight of the zeitgeist (the spirit of the age), i.e. the idea that is dominating the stage of history.

There are differences between the creative process in science and art and the creative process in statecraft. One is the question of timing. Science and art can not be hurried. Statecraft is always under the clock. The statesman is the victim of emergency, the prisoner of crisis and even in normal times the servant of deadlines. He must often seize ideas before their time and use them without knowledge of consequences. Worse, the statesman often confronts situations in which if he waits too long to be sure about facts, he may lose the opportunity to control developments.

The statesman is for ever coming to terms with others. In a democratic polity in the postmodern world the dialectic of compromise prevails all the way down, as postmodernism is characterised by eclecticism. While artists and scientists reject compromise, march ahead on their own and bet on the consent of the future, statesmen require consent now if they are to achieve anything. The artist and the scientist have time and space; the statesman has little enough of either, especially in the postmodern world.

Humanity has never needed great leadership more urgently than it does in the postmodern world characterised by complexity and uncertainty, and leadership has never more urgently needed the collaboration and criticism of an ardent and informed people living in heterotopia.

With the departure of Benazir Bhutto, Pakistan is bereft of a leader who understood the complexity of the postmodern world. But history does not stop. My beloved country is capable of producing leaders who can cope with the postmodern world.

We look forward to Benazir inspiring and producing Benazirs who will fulfil the unfinished task of completing the renaissance and reformation in our country. Millions are waiting for the one:Kanton ki zuban sookh gai pyas sey ya Rab

Koi abla pa iss wadi-i-purkhar mein aaway

The thorns have dried of thirst, O God/May someone with blistered feet come to this vale of thorns (Ghalib).

© DAWN Group of Newspapers, 2008