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DAWN - Opinion; August 02, 2008

August 02, 2008


Will Musharraf strike again?

By Mohammad Waseem

IN 1999-2000 Gen Musharraf launched an institutional war against the legislature and judiciary, and also worked to decimate the executive. All the three wings of the state took an enormous beating at the hands of the fourth coup-maker in the history of Pakistan.

The judiciary again suffered a brutal attack in 2007, first in March and then more disastrously in November. The first violation of the constitution by Musharraf took place on Oct 12, 1999 when the elected government of Nawaz Sharif was dismissed. The second violation occurred on Nov 3, 2007 with the imposition of an emergency, which transcended all the relevant provisions in the constitution.

Is Musharraf now bracing for a second attack on the legislature? Is Pakistan moving back to the model of the late 1980s and the 1990s when the National Assembly, along with the provincial assemblies, was dissolved in 1988, 1990, 1993 and 1996?

We can outline four major features of the recurrent pattern of the use of Article 58-2(b) to dissolve the parliament. These features can be characterised as prerequisites for taking blatantly anti-democratic measures against the parliament by the extra-parliamentary forces led by the president.

First, the timing is crucial. A mass mandate provides legitimacy to the newly elected government. The president cannot, straight away, afford to act against the popular sentiment. He has to wait for months or even years for the right moment to strike. A reasonable period of time must pass before he can send the elected representatives back home. The temporal dimension of the process plays a pivotal role in this regard.

After the elections were held on Feb 18, and governments were formed a few weeks later, the legitimacy of the PPP-led coalition government was riding high. The elections brought into operation a message of change. The national mood was expressly against Musharraf. The legitimacy rooted in the mass mandate drew heavily on three factors: the restoration of judges, the economic crunch in the last phase of the Musharraf-Shaukat Aziz rule, and Benazir Bhutto’s assassination.

The judges issue remains unresolved. The government has visibly distanced itself from it. The economic meltdown has continued unabated. The apocalypse is here. The Benazir factor, as could have been expected, lost its grip over the public imagination after a while. Thus, the first condition for dissolving a parliament that is gradually losing legitimacy seems to be within reach of the president as he follows a wait-and-see policy. He seems to be in quest of the right moment.

The second condition for dissolution of parliament relates to deficit performance. President Musharraf will think twice before striking down a government which enjoys popularity for good performance. In other words, the performance deficit must first sink into the public mind. The scandalous rise in prices of various commodities and the acute shortages of food and electricity, which helped the ruling coalition garner support in the February elections in the first place, now alienate the public with a similar cost to the government.

Thirdly, a good strategy is to hit when and where it is least expected. The myopia of the ruling dispensation is a prerequisite for a strike. The government must feel secure, confident and sure of its popularity. Junejo did not imagine in his wildest dreams that he would be dismissed on May 29, 1988. Nor did Benazir when she called President Ishaq on August 6, 1990, expressing amazement about rumours relating to his impending action against her government.

The fourth condition for bringing the axe down on parliament is that the government should crack from within and thus create a profile of weakness vis-à-vis the mighty force of the establishment. Benazir Bhutto’s government could never recover from the deadly exit of the MQM from the ruling coalition in 1989 as a result of the latter’s secret deal with the president.

As always, the establishment comprising extra-parliamentary forces would like to drive a wedge between the coalition partners in the parliamentary government. The ruling coalition of the PPP and PML-N has already been showing cracks. The man in the street perceives his fate in terms of the dictum: divided they fall.

The ruling set-up in Islamabad has lost the support of millions of PML-N voters. The pro-Nawaz Sharif sections of the media and intelligentsia have moved away. Nationalist elements from Balochistan stand alienated in the absence of any meaningful development in terms of policy or patronage. Every passing day is making the Gilani government increasingly an easy prey for a trigger-happy president.

What will happen if the much-dreaded Article 58-2(b) finally comes into operation? It will be a black day for democracy in Pakistan. The balance between the civil and military wings of the state will be further upset. However, fifthly, there will be no constitutional crisis. The ruling party has already agreed to keeping the controversial article in the statutes book, at least pending a comprehensive initiative to delete it. The president would then claim to be within his constitutional rights to strike again.

Sceptics might think that this scenario is too clean to be real. In the case of new elections, the PML-N as an alternative may not suit the president. The large-scale mobilisation by lawyers and civil society in general would be reactivated from its current position of recess. Washington would be shy of seeing Musharraf swim through the muddy waters of street agitation and public anger. Moving away from a situation of relative political order to one of uncertainty and potential disorder may not be an American priority.

But this underestimates the latent hostility of various elite sections of the population towards what they consider a bunch of uninitiated, unimaginative, uneducated and unsophisticated politicians. They see the failures of the government as failures of democracy itself. This smacks of a negative attitude towards societal input in the business of the state. If Musharraf strikes again, he will do so with the support of this unrepresentative and career-oriented elite which is imbued with a supremacist ideology rooted in paternalism.

A chief justice delayed

By F.S. Aijazuddin

THE philosopher-poet who conceived our nation was a lawyer. So were the founder of our nation, our only nominee on the International Court of Justice at The Hague, and the prime minister who gave us our 1973 Constitution. So were both our current functioning and non-functional chief justices. Given such a legal lineage, why do we continue to treat the law with such contempt?

To many, the ongoing movement by the lawyers’ community to restore Chief Justice Iftikhar Chaudhry and other judges to their positions ante-Nov 3, 2007 appears as a renaissance of faith in the nation’s judiciary. To others, their agitation is less altruistic in its motive. For them it has one aim, and that is to commit regicide.

Nearly nine months have passed since President Pervez Musharraf removed Justice Iftikhar Chaudhry. What was intended to be a swift procedure that should have taken no longer than the time it takes a surgeon to remove an appendix has instead lingered, and then festered, until it has become a suppurating sore on our body politic.

Can it ever be healed? Quite frankly there is no one who has not tried, from constitutional connoisseurs to legal literati to political pundits. It seems that rather than touch it, they prefer to wash their hands of it.

President Musharraf has stopped asking for advice on it. Asif Zardari would prefer not to be given a solution to it. And Mian Nawaz Sharif, when confronted at the conclusion of the lawyers’ long march on June 14, shied away from a definitive resolution. A chief justice delayed meanwhile continues to be a chief justice denied.

The lawyers’ community is understandably disgruntled. Those who subsist from a client’s hand to their mouth have suffered financially by refusing to appear before PCO judges. Schisms have begun to appear amongst politically aligned factions of the various bar associations. Lawyers have descended to the level of their clients, bickering and arguing and ventilating their differences in public.

Chaudhry Aitzaz Ahsan, as president of the Supreme Court Bar Association, squandered a chance for victory when, in an error of judgment that Mahatma Gandhi once described in another context as “a Himalayan miscalculation”, he disbanded the long marchers instead of leading them in a Bastille charge against the official barricades in Islamabad, or in a passive Gandhian sit-in.

His strident demands for the reinstatement of Chief Justice Iftikhar Chaudhry continue. But, being a lawyer, he sees a benefit in yet another adjournment — this time until Aug 14, when he hopes to celebrate the independence of our country and the independence of the judiciary simultaneously on the same day.

In all this, the predicament of the non-functional chief-justice-in-the-wings is perhaps the most poignant. He has endured being manhandled by police officers who would have cowered in his court. He has had his hair pulled, his family incarcerated and his liberty denied.

During the dark days of his house arrest, he might have had time to recall the humiliating trials of his American brother-judge Clarence Thomas, prior to his nomination to the US Supreme Court in October 1991. Thomas was the second African-American judge after Thurgood Marshall to be so elevated, but the character assassination during the Senate hearings left him badly battered.

“This is a circus,” was his angry remonstrance. “It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the US Senate rather than hung from a tree.”

At one point, Clarence Thomas even thought of asking the White House to withdraw his nomination. No job in the world, he felt, not even a seat on the US Supreme Court, was worth the humiliation he was forced to suffer. Even though Thomas was finally voted in by the Senate with the slim majority of 52-48, it was never enough to assuage the bitterness he harbours to this day.

Chief Justice Iftikhar Chaudhry in his private moments must have experienced similar misgivings. He must smile ruefully that while he still awaits restoration, the attention-seeking lawyer Naeem Bukhari (whose open letter of Feb 16 against him lit the fuse that has led to the present conflagration) has had his membership of the Punjab Bar Council, from which he was then expelled, restored.

Putting aside for a moment the mechanism by which the non-functional chief justice and other judges could be rendered functional again, now or in the near future, the public has a legitimate reason to speculate about what would happen afterwards.

Musharraf would be understandably apprehensive. Asif Zardari would read the fine print of the NRO. Nawaz Sharif would be exultant at restoring the dignity of the same Supreme Court his cohorts had stormed in November 1997. And Barrister Aitzaz Ahsan would have achieved the lawyer’s dream: a Supreme Court bench of his own restoration.

Will Chaudhry Aitzaz Ahsan or his fellow agitators abstain from appearing before any of these restored judges? Will any of these judges, once restored, excuse themselves from hearing a case argued by their erstwhile benefactors?

To those Pakistanis to whom the law is still something to look up to, no matter how far it has been made to fall, such an act would provide a very necessary affirmation both of the restored independence of the judiciary and its refurbished dignity. Most importantly perhaps, it would send a message to the public that although the law (to quote Charles Dickens) may be an ass, and that some politicians do on occasions behave more stubbornly than mules, what matters most to the public is the supremacy of the law and the dispensation of justice.

At this critical moment, our beleaguered country needs just such a restorative.

Turmoil after Olmert

By Ian Black

ISRAEL’S beleaguered prime minister, Ehud Olmert, threw his country and the Middle East into political turmoil on Wednesday when he announced he was resigning after months of mounting pressure over corruption allegations.

Olmert said he would step down in September after his Kadima party has chosen a new leader: the main candidates are Tzipi Livni, the foreign minister, a pragmatic centrist, and Shaul Mofaz, transport minister but a hawk on national security issues, including Iran’s nuclear ambitions and the ongoing though faltering negotiations with the Palestinians.

Wednesday’s announcement came as a surprise but hardly a shock, given the accumulating weight of comment that he could not go on in the face of a slew of police and judicial inquiries.

“I will step aside properly in an honourable and responsible way, and afterwards I will prove my innocence,” Olmert told reporters from a podium outside his Jerusalem office. “I want to make it clear — I am proud to be a citizen of a country where the prime minister can be investigated like a regular citizen.

“It is the duty of the police to investigate, and the duty of the prosecution to instruct the police. The prime minister is not above the law.”

Palestinians in the West Bank and Gaza Strip, deeply pessimistic about peace since talks were relaunched at Annapolis in the US last November, are likely to be indifferent to his departure, though Olmert did forge close personal ties with Mahmoud Abbas, the Palestinian president and Fatah leader.

Riad Malki, the Palestinian foreign minister, said: “It’s true that Olmert was enthusiastic about the peace process, and he spoke about this process with great attention but this process has not achieved any progress or breakthrough.”

Olmert, in office for two and half years, was also responsible for restarting talks with Syria, through Turkish mediation, but drew criticism that he did so as a diversion from his domestic difficulties. A fourth round of indirect negotiations ended this week.

Olmert’s reputation was irreparably damaged by the 2006 war in Lebanon, when he was criticised by an official commission of inquiry for having badly mishandled Israel’s response to a cross-border raid by Hezbollah guerrillas, embroiling the country in a month-long war in which civilians were subject to missile salvoes and at the end of which there was no clear victory over the enemy.

But he was credited with having helped restore Israel’s battered deterrent capability by bombing an alleged nuclear reactor in Syria, and, so many Arabs believed, assassinating a Hezbollah military leader in the heart of Damascus.

Apart from talks with the Palestinians, the biggest issue facing Olmert’s successor will be the crisis over Iran’s nuclear ambitions. Mofaz, a former chief of staff and defence minister, said recently that an Israeli attack on Iran was “unavoidable” because sanctions were not working.

Israeli political analyst Dan Margalit, an old friend of Olmert, called the prime minister’s decision to step down “a sad end to a miserable career”. Uri Dromi, another pundit, called Olmert a “lame duck”.

The cigar-smoking lawyer and bon viveur succeeded Ariel Sharon, who was felled by a stroke, after the former Likud leader, who founded Kadima, withdrew Israeli troops and settlements from the Gaza Strip in 2005.

The Israeli public reacted with mounting anger and contempt to the news of Olmert’s legal problems. Nahum Barnea, a columnist with the Yediot Aharonot newspaper, wrote on the eve of the recent EU-Mediterranean summit in France that the prime minister was finished, but was in denial: “Politicians in Israel, the leaders he will meet in Paris, prosecutors and the police all know it. The only one who refuses to acknowledge it is Olmert.’’

Late in May, Ehud Barak, the Labour party leader and defence minister, and a potential rival for the post of prime minister, called for Olmert to step aside pending the outcome of the police investigation and advised Olmert’s colleagues in Kadima to replace him. If they did not, he warned, he would work in parliament to move up elections scheduled for 2010.

Primary elections for the Kadima leadership will take place in two rounds in September. The winner will then have 28 days (and 14 more if needed) to form a coalition. If he or she succeeds in doing so, the winner will complete Olmert’s term, due to end in 2010. If not, new elections will be held within three months — and the most likely outcome, according to current polls, would be a win for Likud right-winger Binyamin Netanyahu.

Olmert is the subject of two criminal investigations. One involves suspicions that he took bribes from the American businessman Morris Talansky and the other charges him with submitting duplicate claims for travel expenses during his former posts as trade minister and mayor of Jerusalem.

— The Guardian, London