Let sacked judges be restored

PAKISTAN was born 60 years ago and we are still at the elementary stage of learning the art of Constitution-making. To preempt the subversion of the Basic Law by military rulers, the architects of the Constitution of 1973 incorporated Article 6 which deems a person abrogating the Constitution by force to be guilty of high treason.

When General Ziaul Haq suspended the constitution and imposed martial law in July 1977, the Supreme Court validated the move on the ground that the Constitution was not abrogated but suspended for a short time. This was treated as an extra constitutional step that was protected and validated by the parliament by the eighth amendment.

Thus the Supreme Court validated the violation of the Constitution as an extra constitutional step on the ground of state necessity, ignoring Article 6 completely. Then, the parliament elected with the backing of the military government in power gave this act constitutional cover and made it a part of the constitution under the eighth amendment. So this is how the practice of introducing patch-work in the constitution was initiated. It was judicial surgery followed by parliamentary surgery that attempted to validate the military’s move.

Blame can be equally apportioned to the three pillars of the state, namely, the executive, the judiciary and the parliament in their pursuit of power sharing. I have always wondered whether the “suspension of the Constitution”, though temporary in nature, is not the subversion of the Constitution. If not, then why have the words “the subversion of the constitution” in the Basic Law?

There should be a proper debate in the parliament on the language used in Article 6. Suspension of the constitution amounts to mutilation rendering it non-workable and inoperative for a considerable time, which is easily covered by the article on the subversion of the Constitution, open to punishment.

The moot point is whether an act done outside the constitution is a violation. If yes, then it cannot be condoned on the ground that it is for a short time only and justified as an extra constitutional measure on the basis of the law of necessity.

In Oct 1999 General Pervez Musharraf, the army chief, suspended the constitution and imposed martial law. The Supreme Court validated his action in the Zafar Ali Shah case following the precedent of the Begum Nusrat Bhutto case. Elections were held and with the active assistance of the MMA, one of the opposition groupings, the parliament passed the 17th amendment giving constitutional cover to all extra constitutional steps taken by Musharraf.

Musharraf thus continued as chief of army staff. He wanted to be elected again as president for the next term by the same assemblies. It was a matter of necessity for him to wear both his caps and continue in uniform as he drew his power and protection from the army.

He was, however, not eligible for election as president because his uniform came in the way since a serving general could not engage in politics until two years after his retirement. He was not elected by the electoral college — that is the federal legislature and the provincial assemblies — as required by the constitution. Other options, such as the referendum and a vote of confidence by assemblies, were adopted.

The term of office of the president under the 17th amendment was to end before the term of the assemblies expired. Hence the president wanted to be elected by the same assemblies for the second time. Meanwhile the Supreme Court launched its programme of judicial activism and gave bold decisions on the sale of the Pakistan Steel Mill and initiated proceedings on tracing missing persons allegedly in the custody of the intelligence agencies. This was a blow to the government’s ego.

It was then that the decision was taken to teach a lesson to the judiciary and get rid of Chief Justice Iftikhar Mohammed Chaudhry. He was suspended, maltreated and taken into custody and a reference for his removal was filed before the supreme judicial council. The lawyers, journalists, civil society, and political parties came out to defend the Chief Justice.

The media played an important role in highlighting the minute-to-minute proceedings against him. Lawyers were beaten up and TV channels were attacked. Ultimately the Chief Justice was reinstated by his brother judges on July 20. This was a great victory for the judiciary and the government was crestfallen.

When the election of the President by the same assemblies for a second time was challenged in the Supreme Court, the court did not grant a stay order but restrained the chief election commissioner from issuing the final notification.

The emergency was declared by the chief of army staff — not the President as empowered by the Constitution — and the Constitution was suspended. The Provisional Constitution Order (PCO) was issued with the idea of sending Chief Justice Iftikhar Chaudhry home along with several other judges. The act of dismissing 50 judges in one go was the biggest blow the judiciary has ever known in Pakistan. A seven-member bench dismissed all the petitions against the President, confirming that his election was valid.

Now the president has nothing to fear from the judiciary. It is going to be smooth sailing for him. On Nov 3, Chief Justice Iftikhar Chaudhry heading a bench had issued an order restraining the government from proclaiming an emergency and issuing the PCO but this order could not be implemented. So the main purpose of the PCO is to punish the judges for dispensing justice according to the law.

The latest order of the newly inducted Supreme Court which gives a clean chit to the President has once again followed the rule laid down in the cases of Begum Nusrat Bhutto and Zafar Ali Shah that considered the action of the president as merely extra constitutional on the basis of the law of necessity.

The Supreme Court has validated the move that now has to be validated by the next elected parliament. The western powers, including America and Europe, want President Musharraf to continue as president with an elected secular government so that the war against terror continues uninterrupted.

Many political parties have entered the polling campaign for the Jan 8 election. The president has announced that the emergency and the PCO will be withdrawn and the Constitution restored on Dec 16. But there is no talk of restoring the judges, who became victims of the PCO.

Are we going to forget them? I feel the political parties should not participate in the elections if the sacked judges are not restored. If the judiciary is honest and independent, the system will work successfully. Power-sharing is not a substitute for democracy. It is time to save the country and its system, which can be done through democracy, transparent elections and the elimination of martial law.

The writer is a former Chief Justice of Pakistan.

Why are we alone?

WHEN in my last article I asked “Why are the judges alone?” I received some interesting comments. One was from an Assistant Superintendent of Prisons who effectively said he knew that in violation of the constitution he was part of a private jail.

He wanted to resign and join the protest against the dismissal of the judges. The Assistant Superintendent, however, questioned how would he survive economically? According to him the Musharraf government was the only one willing to pay him.

Another one was from Mr. Jallal, an assistant professor at a college in Pabbi, who revealed that he selected articles from newspapers and read them to his students in class. He complained that his views which he has repeatedly sent to newspapers are never picked up.

I also recently met Salman Ahmed, music group Junoon’s guitarist who now spends a lot of his time writing letters and articles of a political nature in the United States. He recently engaged in an acrimonious public exchange with Bilal Musharraf who is President Musharraf’s son, and is also a severe critic of Nawaz Sharif and Benazir Bhutto.

Salman moved to the United States perhaps because his principled and outspoken voice could only be heard through his music here. He believes that only an independent judiciary is the answer to Pakistan’s problems. He believes there is a sea of awakening in the country and the lawyers’ revolution is going to cleanse the country.

Unfortunately, to me matters are not that simple. Power and justice in society are allocated through the political process. This process decides what justice will be available to the participants of a polity. I believe that the lawyers protest will slowly wither away because although principled, it has not captivated the political imagination of the country.

Perhaps the reason that Imran Khan cannot get the people together on a justice platform is because justice through courts is not as much of a priority as for example the Assistant Superintendent of prison’s search for food and economic security. My friend Salman and other educated people find it almost impossible to understand that the dynamic of change in a polity has to be through political parties and parliament — not the judiciary.

Imran Khan, Salman and a host of other good people welcomed Musharraf when he destroyed the political process in 1999 because they confused the political process with the personalities thrown up by it. They committed an error of judgment.

Today they are committing another error by not supporting the unfolding political process and instead focusing on form (the Supreme Court) over substance (the return of a representative parliament). There are no short-cuts and one should grab whatever political process is on offer and work from there for more.

The real tragedy is that the educated people in Pakistan are excluded from this political process. Most of these educated people are neither in the military nor are they able to fill prisons, carry guns or unfurl banners for political parties. What are they to do?

I have come around to the view that if these people have to be part of defining the country’s future than they have to become part of the country’s political process by joining established mainstream political parties. Currently, this political process is left either to the upper classes or those who have little to lose.

I grew up in a middle class government service background with both parents working hard to make ends meet on a meagre salary. Traditionally, they eschewed both politics and luxury. They focused on educating their children and on trying to build a house.

My mother, who was at the time herself a young widow, wept when Zulfikar Ali Bhutto was assassinated but did not resign as a college teacher which was her only source of income to support a young son. I would not have been where I am if she had resigned.

She was elated when Benazir Bhutto returned to Pakistan in 1986 and also when Nawaz Sharif defied Ghulam Ishaque Khan but she did not take to the streets in either case. She contributed to Imran Khan’s hospital and could never understand why more people did not stand with him.

Her voice like the voice of thousands of educated people was never heard because she existed in a de-politicised society where the decision-making forums are never available to ordinary educated people and political parties are risky.

Our educated people now have to change this. The only way they can do is by joining established political parties or in the case of civil servants become part of neutral forums that interact through their representatives with these political parties.

Joining political parties and creating policy-defining groups within them result in particular views influencing the leaders and policies of these parties. And believe me; unlike the popular view that is circulated by our de-politicised circles, leaders like Benazir Bhutto are where they are because they are very alert to what their party members feel.

However, there are some things to watch out for. Most educated Pakistanis have a very high opinion of themselves. Inevitably they find that in political parties they are ordinary individuals and not immediately respected. Policy, for political parties has a populist dynamic which does not always appear rational.

In the People’s Party, for example, a worker from a totally deprived background will vent forth with what to most educated people would appear as drivel. And someone like Benazir Bhutto will at times give him much more attention then to someone with a PhD who thinks he is God’s gift to mankind. Politics is after all a game of numbers.

However, ultimately educated people should be able to construct influential forums within the political parties. This takes time, effort and commitment. It becomes easier when the ratio of educated people in the parties increases. And it is better than moaning only in English newspapers and on mass internet emails.

Remember also that in a political party you can speak your mind but you have to go along with the policies you might not agree with. You have to learn to choose between what is fundamental and what issues you can live with – this is tolerance.

My experience is that the educated people of Pakistan (my readers) are among the most intolerant when it comes to class and politics. They have to confront both when they interact with politics. Perhaps you should test this by attending a meeting of the party near you. I would love to hear what you have to say.

The writer is a corporate lawyer and political analyst.

lawgroup.q3@googlemail.com

Looking for scapegoats

WHEN reading or writing English we take many common words for granted and never bother to find out their meanings or significance. They become part of our vocabulary, and sometimes a part of our day-to-day life. One such word is scapegoat.

But the other day, out of sheer curiosity, I did look it up in my Oxford Dictionary and found to my surprise the following rather bizarre explanation: “Goat allowed to escape when Jewish chief priest had laid sins of people upon it.”

The meaning as we have learnt while studying English was then added, i.e. person bearing blame due to others. Of course it is widely used in our politics and administration; it is so convenient and the easiest thing to do, to ascribe responsibility for some fault, whether private or national, to someone you don’t approve of.

That apart, it reminds me of things of the past. Long ago, in Lahore’s Beadon Road, I used to frequent a laundry whose owner was addicted to discussing politics and world affairs. He was also addicted to opium. To humour him we would let afloat a disputed topic about current national anxieties and then ask him, “Mirza Sahib, why is this so? Why don’t things work out with us?”

Mirza Sahib would pontificate in his opium-loaded singsong manner, “My young friends. When I take my last dose of opium at night and lay myself down, the windows of knowledge open to me.

It is then that I find that all this is the mischief of the British.” As he used to say in Punjabi, “Aih saari Angrez di shararat ai.”

For many years after independence we were in the habit of blaming the departed British rulers for all our failings and failures. People who are old enough will bear me out that when we had exhausted the British ‘scapegoat’ and finished with laying the causes of all our problems at their door, we took to targeting Pakistan for them.

If things were not going too well in any sphere, it was because of Pakistan, if flies and mosquitoes abounded, the fault was that of the new nation, and if somebody’s wife ran away it was owing to degenerating moral standards which had led her astray.

Even the inclemency of the weather was said to have come after Pakistan came into being.

When General Ayub Khan (the cause of Pakistan’s later political waywardness) decided in 1958 that the country could not exist without his benign dictatorial guidance, he castigated the politicians and erratic political processes and held them responsible for all the national ills —from our languishing image abroad to adulteration of milk and spices. His prescription for all these ills was martial law.

When parliamentary democracy returned after many years and Z.A. Bhutto and his People’s Party took over the reins of government, the long military-cum-Basic Democracies superintendence of the country was held guilty for everything bad in Pakistan.

To the extent that it had led to the dismemberment of the country the allegation was true, but much of the other national malaise was also put in the account of that unpopular dispensation.

The story of looking for scapegoats went on. When General Ziaul Haq (mis)appropriated the government it was natural that the five-year rule of the PPP should be held culpable for everything that had gone wrong —especially the pampering of the awam, who had been taught to look at themselves as the country’s real masters.

For eleven years the poor general, with a smug smile on his face, worked day and night to undo the terrible effects of the PPP’s misdoings, whose secular footprints could only be wiped out with the military brush dipped in an Islamic detergent. Fate did not let him survive an air crash and he was not able to see how his actions and policies had failed to make a dent in the party’s popularity.

When the General went the way of all flesh, the re-incarnated PPP discovered that his mindless authoritarian style had left an imperishable legacy of corruption, drugs and a Kalashnikov culture (not to speak of the Afghanistan imbroglio) which simply refused to fade away.

It was somewhere about this time that the ISI entered the picture in the form of a scapegoat. Rightly, or maybe not so rightly, Ms Benazir Bhutto accused it of destabilising her regime, getting the president to dismiss her popularly elected democratic set-up in the country, producing the IJI from its magician’s hat and then manipulating the general elections to her disadvantage. This she said not once but twice.

She was followed in her footsteps — again twice — by Mian Nawaz Sharif. The national habit for putting the blame for our own inadequacies and failures on someone or the other went on, and goes on unabated. You still find everyone – from the president down to the humble political worker – accusing one another of being guilty of harbouring enmity towards them.

Naming the ISI for all one’s troubles has become more than a fashion now. If you talk to people in Islamabad – to elected representatives, government officers, media men or foreign diplomats – you will hear strange tales of the doings of that organisation. Going by them you get the impression (not totally untrue) that the ISI is the biggest single cause of political instability and uncertainty in the country.

While on the one hand these groups blame it for propping up the regime of General Pervez Musharraf, they would be ready to acknowledge it as the most patriotic force in the country if it would somehow pull the carpet from under the feet of that gentleman and instal a more compliant leader in his place. Do you think that now, with his election as a civilian head of state, they have reconciled themselves to his presence?

Hardly that would be going against the grain in our ways of analysing national problems. These attitudes have put us in the incorrigible habit of looking for scapegoats, and always remind me of a popular song of the sixties sung by Eartha Kitt, the American musical star of that time, “Put the blame on me, boys!”

Pathways for poverty alleviation

THE World Development Report 2008, released by the World Bank a few weeks ago, has discussed various facets of agriculture in regard to its role as a means of development.

This is acknowledgment of the fact that agriculture has an important role to play in poverty alleviation, especially in the developing world. Agriculture has not been accorded proper attention as an effective development strategy in Third World countries, which have tried to imitate the development strategies of the industrial countries.

As a result the agriculture sector was put on the backburner. This report shifts the focus back to agriculture as a vehicle for poverty alleviation.

The report highlights three pathways for rural households to break the vicious circle of unending poverty. These pathways are farming, rural labour market and migration from rural areas.

The first pathway for moving out of poverty for the rural households is through agricultural farming. Farming pathway is, however, more relevant to the cultivators and farmers who own a reasonable acreage of land.

In the case of Pakistan, the distribution of land is highly skewed. This situation has two important implications: first, the farming pathway for moving out of the poverty trap is limited to a minority of rural households.

Secondly, market orientation of the farming households, who are otherwise engaged in subsistence farming, will be possible only through diversification of their farming activities

In order to effectively use the farming pathway for poverty alleviation, it is imperative that an enabling environment is created for the rural farmers to improve productivity of their land and diversify their crops. Policies need to be fashioned in a way that the market orientation of the farmers is enhanced through human capital endowments.

Effective policies need to be formulated for improving the quality of land, decreasing land concentration, enhancing technical capacity of the rural people, widening scope and outreach of insurance schemes and facilitating access of small farmers to formal credit. Investment in education and the rural infrastructure — such as roads, markets, electricity and irrigation and others — is a prerequisite for bringing agriculture into the market.

Labour pathway is the second strategy discussed in the World Development Report for making use of agriculture for development. This strategy aimed at poverty alleviation implies that income earning from the non-agriculture sector be increased so that the people who do not own lands are absorbed in non-farm activities to earn their livelihood.

To make this pathway an effective tool for poverty reduction, it is imperative that policies are oriented towards non-farm occupations in the rural area. Enhancing off-farm activities and increasing occupational diversity is the key in this regard.

The phenomenonal success in the telecommunication sector is, however, a big achievement and if supplemented with other essential requirements like easy availability of finance, it can work wonders in rural development by promoting small businesses and non-farm activities. In this regard it is important that non-agriculture activities are given proper attention by the policy makers.

The third pathway for poverty alleviation discussed in the World Development Report 2008 is migration. There are two types of migrations, that is, permanent migration from the rural to the urban areas and migration to other countries of the world and temporary seasonal migration.

Rural to urban migration within a country adds to the problems of a country, so policy makers need to evolve development strategies that minimise the flow of rural people to the urban areas on permanent basis.

To overcome this problem, employment opportunities should be created in the rural areas through the labour pathway.

As regards migration from the native country to the outside world, it is acknowledged that this migration was used as a development strategy in some of the developing countries who encouraged their people to migrate.

In 1970s, a large number of Pakistanis migrated to the Middle East to earn their livelihoods. The remittances sent by these people have played a very vital role in the development of our country.

These remittances also contributed towards poverty reduction in rural areas as migration offers an effective pathway out of poverty for such people as well as their family members who stay back home.

The World Development Report 2008 quotes: “In Pakistan remittances from temporary migrants have a large impact on agricultural land purchases and returning migrants are more likely to set up a non-farm business.”

With the changed global scenario, migration has somehow lost its importance as an effective pathway for Pakistan. Therefore, it is appropriate that farming and labour strategies are given more attention as they are now more relevant in our case.

The World Development Report categorises the countries of the world into agriculture economies, transforming economies and urban economies. Pakistan has been placed into transforming economies by the report.

The report offers ‘differentiated approach’ to transform agriculture into a vehicle of change and development. This approach calls for different policy prescriptions for these three types of economies.

For example, in transforming economies like Pakistan, the most important element, as pointed out in the report, is reduction of rural-urban income disparities and stubbornly high rural poverty. The Report further stresses the need of political and macroeconomic stability in order to enable agriculture to play its effective role in the development.

To top it all, agriculture policies should be comprehensive in nature aimed at achieving such objectives as establishment of efficient markets, accelerating small land holders’ entry into agriculture markets and improving livelihood and food security in subsistence agriculture.

The efforts to improve the lot of the rural poor should aim at generating employment and enhancing the skills of the poor to enable them to seize emerging opportunities for moving out of the poverty trap.