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Sunday, June 24, 2007

Pakistan: Transition or Transformation to Democracy?

Pakistan: Transition or Transformation to Democracy?


“Centralization of power in one person or institution is dangerous”
Chief Justice of Pakistan.
May 26, 07
The sight of a “strong and honest” Chief Justice leading the nation’s lawyers to oust a military ruler who seized power by removing a democratically elected government makes a fabulous story. The story is even more engaging because the national Parliament elected by the people is playing dead. And the two popular leaders (former Prime ministers Nawaz Sharif and Benazir Bhutto) who could have led the masses in this urgency live happily in exile.
The Parliament’s failure to mediate the crisis has forced lawyers across the nation to stage a mutiny against what they call “the usurper of the ship,” President Pervez Musharraf. The lawyers are hoping that Musharraf and his crew will jump ship and float away, perhaps to bountiful America.
A senior Supreme Court advocate told me that this is the first time in Pakistan’s history that lawyers have dropped their conflicting political affiliations and forged an unprecedented professional unity to restore the rule of law.
More than 80,000 lawyers are acting in solidarity to challenge arbitrary powers that the President exercises on a regular basis with no constitutional authority. The suspension of the Chief Justice on March 9 was the President’s most blatant act to intimidate the judiciary.

The edifice of law cannot stand and the state cannot survive, says the senior advocate, when the President wearing the uniform of the Army Chief summons the Chief Justice of Pakistan (CJP) into a military camp, grills the CJP in the presence of others including some generals, and then orders his suspension. This Presidential vaulting, I am told, is too much for the lawyers to let stand.
In his petition to the Supreme Court challenging his suspension, the CJP paints the picture of an arrogant President who humiliated his person and his office - “crimes” tantamount to “the subversion of the Supreme Court.” On summoning the CJP on March 9, the petition discloses, the President “fervently persuaded him to resign” and made a good many offers to sweeten the forced resignation. The President was “most upset” when the CJP refused to resign. A chain of punitive events followed.
The CJP was first detained and prevented from leaving the office for several hours. Later, the CJP and his family were falsely imprisoned in their house. The telephone lines and television connections were cut off to isolate the CJP from the world. Even the Supreme Court brethren could not visit him. The CJP’s cars were fork-lifted from his residential premises. On the order of the Supreme Judicial Council, which met the same day in “unholy haste,” the CJP’s entire staff was taken into custody, harassed, and interrogated. “What was the purpose,” asks the CJP? (1) (2)
These stories have stirred many of Pakistan’s lawyers into hard action. The lawyers are protesting in the streets to mobilize a popular uprising against the President.
They are making it difficult for the Parliament to grant another five years term to the President. They are petitioning the Supreme Court to force the President to leave even earlier.
Despite an engulfing wave of discontent in the legal profession, a few lawyers do support the President and argue that Musharraf is no tyrant. As a former commando, they say, Musharraf can handle tough assignments. As the President, he is a soft dictator who welcomes (manufactures) testing events to display his power and pragmatism.
The Pakistani press, including television, has enjoyed more freedom under his soft authoritarianism than any other time since the creation of Pakistan. The opinion makers and newspaper editors freely trash his policies without hearing a knock at the door in the middle of the night.
Twenty-three constitutional petitions have been filed with the Supreme Court, including the one by the CJP, challenging, among other things, the President’s reference under Article 209 of the Constitution against the CJP, the formation of Supreme Judicial Council, and sending the CJP on forced leave and restricting his movements. A larger bench of 13 Justices has been established to rule on these petitions. (1)
The CJP’s suspension is indeed the most critical constitutional issue. Article 209 empowers the President to form an opinion on information received from any source that a Supreme Court Judge is incapable of performing the duties of his office or is guilty of misconduct. The President may direct the Supreme Judicial Council to inquire into the matter.
Article 209 also provides procedures for the Supreme Judicial Council to conduct a hearing and report to the President that a Supreme Court Judge may be removed from office.
Article 211 vests exclusive jurisdiction in the Supreme Judicial Council to decide the removal matters and bars “any court” from calling into question the Council’s proceedings, its report to the President, or its recommendation for the removal of a Judge.
These provisions seem to support the President’s authority to initiate an action against a Supreme Court Judge. Nonetheless, Article 209 contains enough breathing space for the Supreme Court to find procedural loopholes and declare that the President acted without constitutional authority in suspending the CJP.(4)
If realism is any guidance to court behavior, one may safely predict that the Supreme Court will annul the suspension and restore the CJP to office. This outcome is most likely because the lawyers of Pakistan will not be content with anything less. Furthermore, a Supreme Court Registrar has been murdered.
The pro-government media have launched a campaign to malign some Justices of the Supreme Court in attempts to undermine the Court’s credibility.
In view of these facts, the Supreme Court is psychologically predisposed to act in self-defense and will annul the President’s reference.
The annulment is most likely to occur, however, because the constitutional petitions are not about the interpretation or hermeneutics of Article 209, but about a colossal struggle between two primary institutions of Pakistan, the Armed Forces and the Judiciary.

With the filing of the Affidavit by the Chief Justice in Supreme Court on May 29, 2007, (2), the whole gamut of proceedings are likely to take a turn for the worst as the President has opted to file three counter affidavits one by his Chief of Staff and two intelligence Chief. (3) ( The lawyers of CJP, in their zeal or lawyers for the Government in their frustration may opt for an all out confrontation, by making a plea to the Court to summon the named officials of the Army and Intel Agencies in court for rebuttal of CJ’s Affidavit and/or for cross examination if CJ’s version was to be countered by the President or the Federation.

Since the creation of Pakistan in 1947, the Supreme Court has sided with the generals who overthrew political governments. The Supreme Court found innovative ways to legitimize military coups, including the one Musharraf staged in 1999.

In all these constitutional cases, however, the fight has been between two governments, the military and the political. This time, the fight is between the Judiciary and the Armed Forces. This time, the Judiciary itself is under attack. It is unlikely that the Justices will subordinate themselves to the Generals.

In his petition, the CJP prays the Court to annul the President’s reference and raises a question that cannot be lightly ignored: “If a contrary view is taken, which judge will then stand up to the executive?” (1)

Prime Minister Shaukat Aziz reminded one reporter that the government had the constitutional right to declare a state of emergency in such situations, prompting an editorial in the respected English-language daily Dawn to scold that the government "would be well advised not to opt for an emergency declaration. It if does, the regime itself would be the loser, because it is unlikely that a declaration of emergency will be able to contain the current wave of demonstrations."

For Musharraf, the coming months are critical. His terms as both President and chief of the Army expire later this year, which is also when the next general elections are due. The general depended on the judiciary's support when he came to power in 1999, but with the courts against him, he will face a struggle to remain in power.

That's because despite having seized power in a military coup, he has relied on the legal and constitutional system to legitimate his authority, rather than simply ruling by decree.

It seems Pakistan is fast approaching the point in time that could be termed as institutional confrontation and impending collapse of established order that would call for the President to opt for Imposition of State of Emergency as envisaged by the Constitution, if the President was to opt for a rule by decree.

However, exercise of such an option would definitely lead to further deterioration of the situation. Such action will be challenged in the Superior Judiciary, (the High Courts and the Supreme Court of Pakistan), besides, massive out pouring of public sentiments in the form of agitation, street violence and there is every likelihood of such Presidential Action being stuck down by the Superior Courts.

Notwithstanding American and Western Worlds’, self serving Support for Musharraf, the sheer force of events would lead to institutional collapse, with drastic and disastrous consequences.

Under the circumstances, if a decision against the Presidential Reference is authoritatively pronounced by the Full Bench, it would ultimately lead to extremely unsavory reaction by the President. In that, simultaneously with the annulment of the Reference and Reinstatement of the Chief Justice, he may have to again file a fresh Reference against the CJP, may be in accordance with the Constitutional Provisions.

Such an act is also going to lead to massive reaction from the Lawyer’s Community and People, as it would be termed double jeopardy and out right malicious act.

Such an eventuality may ultimately lead to Intervention by the Armed forces and formation of a Civilian Government as envisaged under the constitution, to hold fresh election.

The best course would be to forestall and opt for pre-emptive action.

It is advisable that President Musharraf realizes the limitations in which he has to maneuver. The present political dispensation has lost its worth. If he tries to get himself elected from the existing assemblies without consent of the real stakeholders, he
would face an extremely stiff opposition. The country may plunge into another major crisis, the first casualty of which would be Musharraf himself if extra-constitutional forces intervene.

Instead, a sensible option is to take all the stakeholders, including the Pakistan People’s Party, on board and form a government of national consensus.

The assemblies may elect President Musharraf without uniform for another five years and at the end of the assemblies’ extended period, free and fair elections may be held under the national government.

If the real stakeholders (foremost being the PPP) are not prepared for postponement of general elections, the present assemblies may be dissolved under relevant constitutional provisions, a national government or a government of consensus may be formed and general elections held without unnecessary delay. (This may not be to his liking owing to the fact that he, at the behest of his over zealous advisors, has squandered lot of capital for now).

Another sensible way is that after the budget session, President Musharraf may persuade the Prime Minister and the Chief Ministers to tender advice as per constitutional provisions for dissolution of the National and Provincial Assemblies. By the second week of September 2007, the new assembles may come into existence to serve as Electoral College for presidential election which due between 16 September and 15 October 2007.

For either of these options to succeed, President Musharraf would have to strike a deal with the Pakistan People’s Party on future political set up. The PPP is likely to accept Musharraf as president without uniform provided it is offered a level playing field and allowed to form government in case it is able to forge a majority.

Pakistan may have reached the point in time, if above options are not evaluated and availed, Armed Forces’ intervention may become imperative. In that regard history is replete with precedents.

This time around the validation of such an act, by the judiciary, may be a tall order.

The Western World, particularly the USA, are consumed with the unpredictability of the New Order, that may replace the existing one, for only one reason, i.e. what would happen to their War on terror.

Besides, it seems they are least pushed how the current dynamics of Pakistan unfold in the near future. If the change was not to hurt their exclusive preoccupation with the War on Terror, they may not raise even an eye brow for what happened to the President or the Pakistan.

With the pronouncement made by the full bench of the Supreme Court of Pakistan, admitting the Constitution Petition filed by Iftikhar Chaudhry Iftikhar CJP may have put the State Institutions of Pakistan on a collision course or correction of course by the Pakistan Army.

It’s about time the US Administration sees the writing on the walls in Pakistan.

Fareed Zakaria, reviewing the Daniel Pearl Movie A Mighty Heart, wrote on June 25 issue of Newsweek about dynamics of Pakistan;

“Until recently. Like many dictators, Musharraf has gone several steps too far. His recent actions—dismissing the chief justice of the Supreme Court and attempting to change the Constitution so he could remain president and still run the Army—were wrong and foolish. Though not unprecedented. Musharraf's predecessor, Nawaz Sharif, the elected prime minister, dismissed his chief justice in 1997 and tried to amend the Constitution in equally egregious ways in 1999.
But Musharraf failed to recognize that perhaps as a consequence of his success, ordinary Pakistanis were becoming less comfortable with military rule. As Indian commentator Shekhar Gupta has suggested, he would have been wiser to give up his uniform and run as a civilian in a free and fair election, which he would have won.
The danger is not that radical Islamists would come to power if Musharraf goes—as several American presidential candidates have claimed. Islamic fundamentalists have never gotten more than 10 percent of the vote in Pakistan. The country's two main political parties are secular.
The real problem in Pakistan is dysfunction. "A Mighty Heart" accurately shows that Pakistan's national police forces were trying to find Pearl's kidnappers. But the central government can claim only limited and divided authority over the country. Provincial governors, local commanders and rich landlords are powers unto themselves. Elements in the government can drag their feet and subvert official policy. Large swaths of the country are badlands where the state's writ doesn't run. This is a far more backward country than South Korea or even the Philippines, where the United States helped usher in democracy in the 1980s.
“The only institution that works in Pakistan is the military. The Army is mostly professional and competent. It is also vast, swallowing up approximately 39 percent of the government's budget. In a book published last month, author Ayesha Siddiqa details the vast holdings of Pakistan's "military economy"—including banks, foundations, universities and companies worth as much as $10 billion. And with or without Musharraf, as Daniel Markey ably explains in the current issue of Foreign Affairs, the military will continue to run Pakistan's strategic policy.
Deeply ingrained in the Army's psyche is the notion that it was abandoned by the United States in the 1990s, after the Soviets were driven out of Afghanistan. The generals are worried about Washington's warm overtures to India and fear that soon they will be abandoned again. One explanation for why the military has retained some ties to the Taliban is because they want to keep a "post-American" option to constrain what they see as a pro-Indian government in Kabul. If Washington were to dump Musharraf, the Pakistani military could easily sabotage American policy against Al Qaeda and throughout the region.
Musharraf may be doomed—though were he to choose between the presidency and his Army post, and reach out to the mainstream opposition, he might well survive. Still, it does the United States no good to be seen forcing him out. We cannot achieve our goals—or help Pakistan gain stability—by turning our back on the military. Back in the 18th century, Frederick the Great's Prussia was characterized as "not a state with an army, but an army with a state." So it is with Pakistan. A complex reality.” (6)
The transformation of Pakistan to generic democracy may still be illusive but the transition in that direction, via the erstwhile governance by a system of Troika, consisting of the President, Prime Minister, may be more realistic route. It may cater to all and sundry, for now.
(1) A Lawyers' Mutiny in Pakistan by Ali Khan grew up in Pakistan and is a law graduate of Punjab University, Lahore. He is currently a professor at Washburn University School of Law in Kansas.
The Affidavit filed by the Chief Justice in Supreme Court on May 29, 2007.

(Chief of Staff PM)

(Chief of IB).

(4) Refer: Article 209, 210 and 211 of Pakistan Constitution.


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