A big blow to the judiciary

WITH the Chief Justice of Pakistan having become “non-functional”, another sordid chapter has been added to the judiciary’s chequered history. Ghulam Mohammad began the process of destroying the foundations of Pakistan’s constitutional and democratic structure, but he is not known to have interfered with the judiciary. That the Sindh Chief Court tried to undo the dissolution of the Constituent Assembly in October 1954 showed that the judiciary till then had acted independently. However, the Federal Court then came to his rescue with the notorious ‘Doctrine of Necessity’ that has since held the ground. Indeed with his arbitrary actions that shook the very foundations of Pakistan, Ghulam Mohammad had laid down a perverse tradition which military and civilian despots have used shamelessly to prolong and consolidate their rule by resorting to extra-constitutional methods. As years wore on, the judiciary more or less acquiesced in its role as a subservient institution whose duty was to legitimise every authoritarian ruler’s assumption of power, even if he acquired it by means of a military coup, and to uphold all his actions which often were in utter violation of the fundamentals of law and constitutional propriety. That is how the Doctrine of Necessity became an intrinsic part of Pakistan’s constitutional jargon, for, instead of being forgotten as a one-time exception, this doctrine has been exploited by the generals, who often found — barring some exceptions — willing allies of the judiciary.

Generals Ayub, Zia and Musharraf all overthrew elected governments. While the Noon ministry, which Ayub and Iskander Mirza combined to dislodge by a coup, was not directly elected, it had, nevertheless, enjoyed a majority in the assembly and had a constitutional status, but Zia and Musharraf overthrew governments which had come to power through general elections. Once in power, they de-fanged the courts by appointing yes men to the apex judiciary so as to ensure uninterrupted legitimisation of all their actions. Zia was a class by himself. He not only got rid of five judges of the Supreme Court, he also sacked Chief Justice Mohammad Yaqoob Ali. Zia also made no secret of his fascist bent of mind by declaring publicly that the 1973 Constitution was a scrap of paper which he could tear up any time. The Provisional Constitutional Order and the Revival of the Constitution Order were not at all what their imposing titles suggested; they were instruments of manipulation to perpetuate his rule which he had assumed initially for 90 days to hold elections. Finally, the Constitution he left behind as his legacy had little resemblance with the Constitution enacted by the National Assembly in 1973. Instead, it had been stripped of its parliamentary character, all powers were concentrated in his person, and like Gen Musharraf today, he continued to remain both army chief and president till his death. The amended Constitution contained a new Article — 58-2b -- which authorised Zia to sack an elected government, which he did by dismissing the government of his protégé, Mohammad Khan Junejo.

The most shocking part of Pakistan’s judicial history is the post-Zia period when the popularly elected prime ministers, Benazir Bhutto and Nawaz Sharif, showed scant respect for the concept of an independence judiciary and staffed it with yes men. Where a judge or two refused to bend, they were got rid of. It was also during this era — when Nawaz Sharif was prime minister — that the hoodlums of the ruling party attacked the Supreme Court premises and made the Chief Justice flee for his life. Those leading the hooligans were later tried and given light sentences. Today they are back in business. The drama surrounding Chief Justice Sajjad Ali Shah’s ouster from office and the role played by “brother judges” made a mockery of the judicial norms and are a shameful part of Pakistan’s history. The “brother judges” combined to get rid of their own chief for political reasons. But both the civilian prime ministers were held accountable for their conduct.

Now coming to Friday’s episode, one is appalled to see the photograph of a general in uniform calling the country’s Chief Justice to his “camp office” as if the latter were a ‘suspect’ in a case of embezzlement, thus stripping him of the dignity to which he was entitled to by virtue of the office he held. Chief Justice Iftikhar Mohammad Chaudhry was then not allowed to return to his office and was “escorted” home. Gen Musharraf has made a reference against him to the Supreme Judicial Council, and the media has published a list of the alleged acts of malfeasance by Mr Justice Chaudhry. Since the charges are sub judice and commenting on them would constitute ‘contempt’, one cannot but take note of the background against which the Chief Justice was made “non-functional” and the “judicial activism” that came to be associated with his name since he became chief justice in June 2005. More important, it is difficult to avoid the suspicion that some of his verdicts had irked the government and for that reason it did not wish an independent Chief Justice to be in office at a time when the apex court could be called upon to decide vital constitutional issues in the light of continued reports that President Musharraf will retain the two offices and that the existing assemblies will re-elect him as president for another term. In some other cases, too, he had been bold — like reversing the sale of Pakistan Steel, stopping the decision of the Capital Development Authority to turn a public park into a mini-golf course, and taking suo motu actions to make some highly progressive and popular decisions concerning human rights, women and environment. However, the decision that must have hurt the government relates to “disappearances”, of which there have been quite a few in the context of the war on terror.

While SJC will, no doubt, decide upon the case whose outcome will have profound consequences for the future course of law and constitution in Pakistan, the nation is appalled that those who impose accountability on others and imprison politicians are accountable to no one. Is not the nation justified in wondering why the men in khaki consider themselves above accountability? He who seeks justice must come with a clean hand is an old axiom. The generals seek to dole out justice to others, but they themselves are not prepared to present themselves before an impartial, civilian tribunal to defend their actions. It is for this reason that, since Zia’s days, the word ‘accountability’ has acquired a strange connotation because it is hard to dispense with the notion that the military uses the shibboleth of accountability to persecute the regime’s political enemies through what can be called inquisition courts.

A larger question is Pakistan’s image. The government has been very keen to project a soft image for Pakistan, and there is no doubt that this country gets bad press abroad, often because the good here does not make news, while terrorism, honour killings and gang rapes regularly hit world headlines. But then the nature of the regime in power is a major factor in giving the country a good or bad image. Friday’s treatment of the Chief Justice is hardly the episode that will cast Pakistan in a better image abroad. In fact, it will have a negative impact on the world and add to the impressions abroad that Pakistan is just another Muslim country where the ruler’s word is the law.

Gathering storm on the western frontier

AMERICAN intrusions into Pakistan from Afghanistan, which until now have been occasional, are about to become frequent territorial violations. These inroads, be they in the form of targeted missile/air strikes or “enter-operate-leave” incursions are a rapidly approaching reality. What this entails for Pakistan is worth some thoughts.

All signals emanating from American centres of influence indicate a perception that Pakistan lacks the will or capability or both to prevent militants based inside its territorial jurisdiction from aiding the Taliban in their attacks against US/Afghan troops in Afghanistan. The US and the Karzai government are failing in their stated mission and American domestic and international opinion requires a scapegoat to justify this protracted conflict. The most conveniently available scapegoat is Pakistan.

The US cannot afford escalation of hostilities and its troops being bogged down in Afghanistan. This would be disastrous for its global strategy in terms of prestige, authority and supremacy. It is poised to take direct action and seems to be contemplating a “spring offensive” of its own inside Pakistan.

The militants would welcome such an escalation. The more Americans enlarge their area of operations, the more they would expose themselves to militant attacks. If it becomes unbearable for the militants in Fata, they would shift their bases and operations down country to the NWFP, thereby drawing in more US-led counter-insurgency measures.

Already we are witnessing Talibanisation in most of the southern districts of the NWFP and even up north. If latest trends are anything to go by, the days to come would show deeper cooperation and coordination among pro-Taliban militants, pro-Kashmiri and other jihadi groups and sectarian outfits. The statistics and analyses of recent suicide attacks in Pakistan show that there has been some interaction amongst the groups. This, coupled with political unrest in Balochistan, would have more than a destabilising effect throughout the country.

The army in Fata cannot afford to assume the role of a silent spectator. With local public opinion being what it is, neither can it fight alongside American troops against its own people. Having entered the tribal belt and taken over administrative command for all practical purposes, it cannot simply pack up and leave. It has to show a modicum of success vis-à-vis its goals.

A way out from this gathering storm can be found based on a relevant analysis of how and why we have managed to land ourselves in this situation.

It seems that the army entered the tribal areas for the first time since independence without realising the intensity of the problem and, therefore, lacking any tangible short-, mid- or long-term plan. Its action at the time was meant to show the world that the government was serious about tackling terrorism.

The history of the area repeated itself. Every operation mired the military forces deeper into the quagmire that is Waziristan. With US pressure building and militants unrelenting, the army realised that the task was not simple. It, therefore, embarked on a simultaneous policy of negotiations with the tribal populace and the use of force, but with a disjointed approach.

There was complete lack of coordination and trust amongst those responsible for negotiations (political authorities), the users of force (military authorities) and those dealing with information (intelligence agencies). It was simply not realised that the use of force is always subservient and not parallel to the negotiation process. It frequently happened that while the political authorities were negotiating a deal, simultaneous military operations were taking place without the knowledge of the political authorities.

Military authorities acting against the advice of the political administration opted for negotiated settlements with militants through the clergy and retired army officers, bypassing the tribal elders. This was done at a time when in the public view the militants had the upper hand.

In the tribal belt, where perceptions carry more weight than reality, while the government was perceived to have negotiated a settlement from a position of weakness, the militants went about creating a parallel administration and eliminating pro-government tribal leaders (more than 100).

When such ill-conceived agreements (Wana and Baitullah Mehsud etc) unravelled, the military went for indiscriminate use of force in North Waziristan alienating the local population further. Daily attacks on government and military installations/personnel became the order of the day and parallel administration by the militants started functioning in North Waziristan too.

The government faced with the loss of writ in Waziristan opted for the North Waziristan peace agreement brokered by the new governor. This agreement gave de jure authentication to the de facto situation in the area, its basic flaw being that while the responsibilities assigned to the government were tangibly verifiable (dismantling of check posts, no operations etc), those assigned to militants were not (expulsion of foreigners, no cross border attacks etc).

The US/Afghans are perturbed and continue to tell Pakistan “to do more”. To pacify them and fearing direct American intervention the military either went for or owned up to the indiscriminate use of force in South Waziristan and Bajaur. The militants retaliated and the result was a spate of suicide attacks not only in Fata, but also in the NWFP and even in Islamabad.

The solution lies in revisiting both the Pak-US understanding on the extent of cooperation keeping in view the national ethos and peace agreements with the militants. The government should put in all its efforts to convince the Americans that although their mutual strategic understanding (anti-Taliban drive) would stay as it is in the individual interest of both countries, tactics to achieve this objective would differ. Each country, be it Pakistan, Afghanistan or the US, would have to devise and implement tactics keeping its own internal situation and national ethos in mind. Once the US elephant is off our backs, we can start handling the issue from the viewpoint of our own interest.

The tactics that Pakistan needs to curb pro-Taliban militancy must be based on the realisation that a fast-track approach under US pressure won’t work. The militancy problem is a complex multi-dimensional issue dating back nearly four decades to the US-sponsored jihad against the Soviets in Afghanistan. Any long-term solution would need to take into account this factor in conjunction with the dynamics of the area and its people.

Foremost would be winning over Fata again by ensuring that that the people see tangible benefits in the desired objective. Our policies in the area should be devised and adapted to the goal of what the Americans term as “winning hearts and minds”. This would require a delicate balancing act aiming at giving a stake to the people without weakening the current administrative system in Fata in the short- and mid-term.

Having extended adult franchise to the people of Fata in 1997 thereby diluting the hold of the tribal maliks, it is unrealistic to expect the same elders to have a hold over the people of their respective tribes vis-à-vis implementing government policies. Neither would it be wise to extend the civil/criminal procedural laws of the settled areas to Fata because the working of our courts, police and patwar systems are nothing to be proud of.

In this scenario what needs to be done can only be mentioned briefly here.

1. Relevant provisions of FCR be made appealable to a special bench of the high court constituted for the purpose.

2. Political parties be allowed to operate in Fata to counter the ideological thrust of pro-Taliban elements.

3. In order to ensure that only those maliks who have confidence of their respective tribes are assigned responsibilities, the institution of malak be made elected. An elected judicial jirga and an elected development jirga would be formed of such maliks. Elections to these bodies would be for a period of two years on the basis of adult franchise while distribution of seats would be according to ‘nikaat’ (system of inter/intra tribal shares). The political agent would have the prerogative to distribute the quantum of funds amongst the tribes keeping in view their level of cooperation with the government. Funds utilisation once assigned to a particular tribe would be the prerogative of the development jirga. This would give internal autonomy and a participatory role to the elected people at the micro level and keep a leverage of the administration over the tribes at the macro level.

4. Levies as opposed to khasadars be raised in the Waziristans, thereby not only generating employment but also creating a disciplined force with roots amongst the tribes.

5. Operationally countering current militant tactics (especially the suicide bombers) is mainly the domain of intelligence agencies. Their efforts need to be coordinated at the field level with them giving real time information to the political authorities to devise plans.

6. A system of regional coordination between the tribal belt and adjacent settled districts needs to be put in place as both these areas have interlinked issues. At present, no such linkage is available between their respective law enforcement and intelligence networks. Previously, the regional commissioners and home secretaries performed this role.

7. Its time the main clauses of the North Waziristan peace agreement were revisited with the consent of the people. Checkposts to be manned jointly by the military, paramilitary and tribal representatives should be re-established at crucial points. The army has to take a backseat, while giving effective back-up to the political authorities as and when required. The use of force and cordon and search operations under the political authorities and tribal elders may not achieve the desired results in one go, but would keep the militants on the run.

8. The most effective check against the setting up of parallel administrations is service delivery by the government in terms of justice, fair play, development, security and giving a sense of identification, ownership and tangible benefits to the people. Government representatives need to reach out to the people on these terms.

Any strategic idea needs deliberate and diligent tactical implementation based on conviction, motivation and drive of the man behind the gun. Halfhearted measures by self-serving people would not do in these crucial times.

The writer is a retired brigadier and former secretary, home & tribal affairs NWFP, and secretary Fata (security).
Email: mahmoodshah@mahmoodshah.com