The long march is not about the person of Iftikhar Chaudhry or Nawaz Sharif. It is a march against the status quo and must succeed in order to usher in the much-needed change in the constitutional structure, political culture and social ethos of this country, without which Pakistan will be unable to sustain a moderate society or prosper as a democratic polity. The defiance of Chief Justice Iftikhar Chaudhry on March 9, 2007, only ignited fires of resentment against the ruling elite for sustaining a justice system that denies the ordinary citizen access to justice. He might not have had an irreproachable past, but his perseverance and his dogged resolve to fight an illegal and unconstitutional act has given this country an opportunity to rally behind a cause that promises a better collective future for all of us. Likewise, Nawaz Sharif might be culpable for meting out highhanded treatment to the judiciary during his last stint in power. But how does that
equate the PML-N with the PPP at this time, when the former is standing on the right side of principle seeking to change a fundamental cause of our misfortunes, while the latter has emerged as the intractable obstacle to such change?

This change being sought by the rule of law movement is imperative for five fundamental reasons. One, the Constitution of Pakistan needs to be reverted to its original sustainable form. General Musharraf vandalized the Constitution for a second time on Nov 3, 2007. On that fateful day the General had bestowed on himself the power to single-handedly inscribe changes into our fundamental law, and in exercise of such self-proclaimed power, disbanded the judicature, set-up a new High Court in Islamabad, validated all his illegal actions and gave himself immunity against charges of treason etc. The new Dogar Court that he constituted ‘validated’ his unconstitutional actions in the Tikka Iqbal Mohammed Khan case. While the general’s illegal acts outraged this nation and triggered a chain of events that led to his regime’s demise, this country continues to function under the presumption that his actions of Nov 3 were legal and the changes introduced by him are
a valid part of our Constitution. The Constitution thus needs to be cleansed of the general’s adulterous acts, which cannot happen so long as we continue to live with a Dogar Court complicit in the general’s treacherous scheme.

Two, the constitutional structure of separation of powers and checks and balances needs to be given effect. The fundamental rights and liberties guaranteed to the citizens are never self-implementing. An independent judiciary is the enforcement arm of the Constitution. So long as the judiciary remains subservient to the executive and continues to function as an extension of the ruling elite, one can scribble in all kinds of sensible provisions in the Constitution but they will amount to naught. Without a judiciary that has the ability, resolve and reputation of being a neutral arbiter of justice and conscientiously adjudicates the relationship between the institutions of the state on the one hand and between the citizens and the state on the other in accordance with the letter and spirit of the Constitution, rule of law will not amount to anything more than the rule of the powerful. If we allow the Zardari-led PPP to stuff courts with perfidious quacks
- as obvious from the recent judicial appointments made with the consent and collusion of the Dogar Court – overtime the gap between the law produced by our courts and demands of justice will become so wide that the notion of rule of law in Pakistan will itself become farcical.

Three, we need a constitutional and legal structure that sustains a level-playing field in the political realm. The leaders of the PPP and the PML-N both have tainted pasts, and this nation has not been vying for a return to the kind of corrupt and ineffectual representative governance that these parties punished the country with in the 1990s. The charter of democracy had brought along the hope that our mainstream parties had learnt from their past mistakes, agreed to let bygones be bygones, compete fairly within the political arena, and move forward with a clean slate. The NRO, however, was the first infraction. The PPP leadership got into bed with Musharraf who wiped clean its past sins through an unscrupulous and shameful edict. This left the Sharif’s out in a lurch, with the swords of Damocles hanging over their heads.

The Zadari-led PPP went back to the dirty political games of the 1990s once it decided to abuse the instrument of the law to cut the Sharifs to size by getting them declared ineligible for public office. If the Sharifs have a blemished past, so does Zardari – and one that is much murkier. Probably all our politicos will be rendered ineligible to hold elected public office if we strictly enforce the qualification requirements for such office enshrined in our Constitution. Our nation has thus been willing to give politicians with tainted past another chance, frankly, for want of options (as there is no short-cut to democracy) but with the hope that they will be willing to reform themselves and their sordid ways. Thus, if democracy is to have a chance in this country, we cannot allow one political party to establish a stranglehold over our skewed legal and judicial structures to entrench itself in power and outlaw the opposition.

Four, we need to reform our democracy and system of governance to ensure that the policies and actions of elected representatives reflect popular public opinion. Khaki saviours still have a controlling role in Pakistan in this day and age because there isn’t much distinction between the style and system of governance that subsists under military dictatorships as opposed to that practiced by civilian autocracies voted in during democratic times. The rule of law movement has sustained itself for two gruelling years and the ideal of constitutionalism that it is struggling for resonates with ordinary people. All opinion polls conducted in Pakistan since Nov 3, 2007, establish that an overwhelming majority of Pakistanis supports the restitution of the Nov 3 judiciary. And yet we have a popularly elected party in government that has willingly inherited the abhorrent policies and tactics of the dictator it replaced and refuses to give effect to the unmistakable
will of the nation it claims to represent. If the growing gap between the popular will of the nation and the narrow self-promotional policies of our ruling elite is not bridged, the continuation of civilian autocracy in democratic garb will end up discrediting the desire for democracy itself in this country.

And five, we need to re-instil morality and ethics in public life. Over the last year we have witnessed a free fall in the standards of morality exhibited by holders of public office. To err is human, but to gloat over deliberate wrongdoing and use deceit as a favoured political tactic cannot be acceptable. A representative government that introduces a code of conduct for public life that celebrates and rewards indiscretions, corruption and malice cannot be a harbinger of hope for the future of democracy or rule of law in this country. If we accept Mr Zardari’s broken promises, his refusal to honour binding commitments, and his choice of lackeys smeared in scandal for elevation to revered public offices, it will not be too long before all sensible distinctions between right and wrong in public life get wiped away.

Now we are essentially being told that our perverted ‘ground realities’ have become so entrenched that in order to preserve order and peace in the society we should compromise the principle underlying the rule of law movement instead of changing the ugly reality. This must not happen. If we sacrifice principle on the altar of expediency at this critical juncture, we might not get another opportunity to redeem the soul and spirit of this nation through a peaceful mass movement led by the educated middle class of this country.

Email: sattar@post.harvard.edu

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Babar Sattar
+ 92-321-5171197
sattar@post.harvard.edu

The Obama Administration has repeatedly recognized the importance of Pakistan to regional and U.S. national security. Given this recognition, and taking note of Vice President Biden’s insightful proposals before leaving the Senate, the President should abandon his predecessor’s failed policy and support meaningful democratic reforms and the restoration of the judiciary rather than military engagement alone.

March 9 marked the two-year anniversary of the Pakistani Lawyers’ Movement, which formed to restore the Rule of Law in wake of executive assaults on the judiciary. After Pervez Musharraf – a military dictator supported by the U.S. – sacked the Chief Justice of Pakistan’s Supreme Court in March 2007, the Lawyers’ Movement took to the streets, building a national movement across all sectors of society to restore democracy. In the response to mass protests, Musharraf declared an emergency, suspended the constitution and ordered the arrest and detention of judges, lawyers, journalists, and civil society members. Musharraf claimed that he could not fight the U.S. “War on Terror,” while facing the democratic constraints of an independent judiciary and free press.

Despite U.S. support for Musharraf, he was ultimately forced by public pressure to resign in August 2008. This was the first time in Pakistan’s 62 year history that a military ruler peacefully stepped down from power. However, despite Musharraf’s resignation, general elections in February 2008 in which the Pakistani people overwhelmingly supported judicial restoration, and repeated promises from Pakistan’s political elite, the judiciary remains politicized – as illustrated last week when it ruled the Sharif brothers ineligible. To this date the judiciary has not been fully restored and the Rule of Law continues to wither.

President Asif Zardari continues to defy the will of the electorate by failing to restore the judiciary. Zardari, like the military rulers before him, has no interest in allowing a Court the independence necessary to check his unrestrained fiat. Like Musharraf, Zardari persists in manipulating and intimidating the judiciary as a means of consolidating his personal political control. Last week’s Supreme Court decision concerning the Sharif brothers’ eligibility to contest elections is a perfect illustration.

Nawaz Sharif alleged that Zardari offered to drop their case in exchange for the Sharifs’ assurance that they would end their call for the restoration of the judiciary. Circumstantial evidence strongly suggests that Zardari engineered the court’s decision in order to eliminate his political rivals and did so through three judges who were unconstitutionally appointed by Musharraf. Using the court’s decision as cover, Zardari ordered that Punjab, a province previously controlled by the publicly elected PLM-N, come under Executive rule.

In a further effort to silent political dissent, Zardari suspended the PPP party membership of Aitzaz Ahsan, a leader of the Lawyers’ Movement. Pakistani lawyers and civil society continue to demand the restoration of the judiciary and the completion of the transition to democracy. In response, Zardari has pushed through legislation banning peaceful political assembly in Islamabad, Punjab and Sindh, barred the press from entering the National Assembly and preemptively arrested political party opponents and lawyers.

The U.S. supported Pakistani government, in spite of its attacks on the Rule of Law, has undermined not only democracy in Pakistan, but also U.S. interests in the region. For example, since 2001, Musharraf squandered over $11 billion dollars in direct U.S. aid intended for fighting terrorism, which he allegedly diverted to retain his support within the military and upgrade weapons poised against India, while terrorism related offenses increased. U.S. military aid to Pakistan continues unabated, further entrenching the position of the military at the expense of civilian institutions.

In the three months since Obama has taken office, his administration has continued to bomb targets inside Pakistan while failing to insist on democratic reforms. U.S. policy should not focus solely on the military aspects of “The War on Terror.” Rather, it should aim to win popular support by advancing democracy. This view compels ending unconditional support for the military and instead supporting independent institutions that hold the greatest promise for building genuine democracy in Pakistan. Even the Pakistani government acknowledges that a military policy alone will not bring sustainable regional or international security, as evidenced by Zardari’s recent negotiation with Taliban militants in the northern Swat Valley.

Specifically, Obama should commit to support the plan outlined by Joe Biden when still Chairman of the Senate Foreign Relations Committee and Senator John Kerry. The U.S. should curb it’s dependence on the ISI and military, impose rigorous auditing procedures on all future military aid and invest in long-term development projects which focus on education and public infrastructure to demonstrate U.S. support for the people – rather than the military generals – of Pakistan. At a minimum, Washington should insist upon the restoration of all judges deposed in 2007. Failure to do so will prolong instability in Pakistan and leave the rest of the world subject to the country’s continued lawlessness.

During his horrid rule the General denied justice to citizens of Pakistan, with a vengeance: politicians were hauled up indiscriminately after his coup in 1999 and were assaulted and humiliated purposefully to create a critical mass for the Q League; Akbar Bugti was killed in cold blood; the chief justice and a majority of senior judges were removed illegally and locked up in their houses along with their families; lawyers fighting for rule of law were incarcerated and intimidated no end; the media was taken off-air illegally and plain-speaking journalists were blacklisted; the misguided youth of Lal Masjid were initially emboldened and then mercilessly executed; Aafia Siddiqui and hundreds of others were kidnapped and are still under illegal detention; and civilians in our tribal areas have been turned into cannon-fodder in the misconceived war against terror. This is only to name a few broad categories.

But being meted out justice is a fundamental human right. We must treat Musharraf fairly, strictly in accordance with the law and the mandated due process. The question of his future is now agitating the consciousness of our nation. Now that he has resigned instead of facing impeachment, should he be punished for his unconstitutional acts and gross misconduct in exercise of state power? Would holding him accountable for his deeds amount to creating a conflict between the past and the present that could possibly compromise the future of this country? Is it time to move on and let bygones be bygones? Hearing arguments of Musharraf proponents or detractors of the deposed judges, why does one get the sense that our entire nation and Pakistan’s state apparatus has one collective brain and if that is focused on role of the president or need for an independent judiciary, the “common man” will remain poor and hungry? There is no doubt that it is time for
 Pakistan to move forward. But is it correct to assume that holding Musharraf accountable for his actions and misdeeds amounts to remaining mired in the past?

There are multiple theories that explain the need for accountability and justify punishment. Foremost among them are concepts such as retribution and deterrence. Retribution is backward-looking and deterrence is forward-looking, and punishment qualifies as part of the justice system for being a combination of backward- and forward-looking elements. The fundamental contract between the citizen and the state is based on the premise that each of them has certain rights and responsibilities. Being treated in accordance with the law is an inalienable right of the citizen and not discriminating between the citizens is a responsibility of the state. So, then, what is the legal argument that could justify offering Musharraf a safe passage or freedom from liability? If the actions or inactions of other citizens have legal consequences, why should the General be treated any different? The notion of rule of law cannot coexist with the impunity that our military
 dictators have enjoyed all along.

Our Western friends and their emissaries are also pushing the safe exit argument forcefully. If nations have interests and not personal loyalties, why have Anne Patterson and Mark Lyle Grant been frantically negotiating with key players in Pakistan, overzealous to ensure a “dignified” exit for Musharraf? It is not just about the person of Musharraf, but about coming to the rescue of a loyal autocrat willing to do the bidding of the US against the popular wishes of his people. The US needs to establish on record for future purposes that loyalty is rewarded and that the US secures the future of an ally who sticks his neck out to promote American interests. And herein lies a lesson to be learnt by us. We must also send a message to our foreign “allies” that propping up dictators at the expense of state institutions and democracy for instant results will not work in Pakistan anymore.

We also need to send out a message to our prospective “saviours” that, notwithstanding the unflinching support offered by unrepresentative forces at home and abroad, violating the Constitution and the law will have unpleasant consequences. This debate is not about personalities. We have learnt the same fundamental lesson from all dictatorships: military intervention is the problem and not the solution to Pakistan’s myriad ills. Many in Pakistan celebrated the arrival of Musharraf in 1999 and they are celebrating his exit even more fervently. But the story of the removal and return of the PPP and PML-N governments in the 1990s or the departure and return of Benazir Bhutto and Nawaz Sharif after years in exile is no different.

In a country with innumerable problems that are not amenable to quick fixes, a change of façade brings new hope and is thus welcomed. But we cannot afford to keep musical chairs between dictatorship and controlled democracy going. We need an uninterrupted democratic era. However, it is only natural for present miseries to fade the memory of past woes. The lessons drummed in by Musharraf’s recklessness might also be lost soon and that is why it is imperative to create institutional structures that prevent praetorianism from blossoming in future. Three things sustained the Musharraf regime: his people, his policies and the warped non-consensual manner in which the policies were contrived. Musharraf’s exit has begun to unravel the first element of the regime – the people who sustained the regime. His policies and policymaking procedures must now also be swiftly revamped.

The biggest damage that Musharraf did to Pakistan was on Nov 3, when he attempted to decimate the Constitution and the promise of an independent judiciary. Now that the perpetrator is out of the way, the PPP-led coalition must lose no time to restore the deposed judges. The memory of the suffering caused by the Musharraf regime will fade away soon, and it will take time for the fruits of democracy to trickle down to ordinary people. In the interim phase a strong and independent judiciary willing to uphold and defend the Constitution will be the real structural impediment to military adventurism. Further, even from the PPP’s perspective, the right time for restoration is now. Twice before the PPP leadership managed to paint itself in a corner in such a manner that restoring the judges would have offered the ruling party no political mileage.

Had Prime Minister Gilani restored the judges when he announced their release from illegal detention, the PPP would have received a lion’s share of the credit for restoration despite not making it an electoral issue. By flouting that opportunity and later reneging on the commitment made in the Murree Declaration, the PPP attracted opprobrium from across the country, even from friends of the party. However, today is a new day. Asif Zardari has successfully spearheaded a movement that has led to Musharraf’s ouster without confrontation. If he follows through by restoring the judges without further delay, the PPP’s preferred strategy to reverse the actions of Nov 3 will stand vindicated. Having been given a third opportunity, the PPP leadership must not squander it this time.

To mark the change that democracy has ushered in, the PPP-led coalition must urgently initiate a parliamentary debate on Pakistan’s security situation in the tribal areas. Democracy has never been flaunted as the most efficient system of government, only the safest. And the safety feature is a product of consensus. Irrespective of the substantive decisions reached in Parliament, to the extent that we get the process right we will have taken a giant step towards resolving the twin issues of insurgency and terrorism.

Let us waste no breath over Musharraf’s legacy. But the treatment we mete out to him will have consequences for the rule of law and constitutionalism in Pakistan, our civil-military imbalance, as well as the lingering ability of foreign actors to dwarf our sovereignty and political autonomy. While closing the Musharraf chapter let us also remember that the ball is now in the court of politicians. Let this not be another brief turn that ends up discrediting democracy as a system unfit for the genius of Pakistanis. From here on it is not about Musharraf anymore. It is about the legacy and the future of the PPP and the PML-N.

Musharraf’s rapid fall from power demonstrates the bankruptcy of the Bush administration’s policy of advocating liberty while supporting autocracy. As we have stated, the real struggle today is not between democracy and terror, but between those who support expansion of democratic and human rights and those who seek to infringe upon them. The Bush Administration supported the Musharraf regime on the grounds that it was an ally in the so-called “war on terrorism” and overlooked its violations of the most fundamental democratic rights. Both Administrations also refused to respect judicial independence, accepting the removal and incarceration of over half of Pakistan’s legitimate judges. In the face of popular opposition that even potentially rigged elections could not conceal, the Musharraf presidency was finally –and fortunately — doomed to failure.

President Bush often claims liberty is the birthright and natural desire of all people. Had he really believed his rhetoric, however, he would have supported the heroic lawyers of Pakistan in their demands, rather than the now-deposed and discredited Musharraf.

The Lawyers Movement has represented the legal profession at its best. We stand with it and share the joy of its triumph. While Pakistan’s future remains far from certain, it has taken an enormous step forward

What good would exposing its own impotence do to the PPP government is the obvious question. There are two possible explanations. One, the prime minister was on tour this week to beseech the US to support the PPP-led government. For the US, the alternative to partnering with the PPP government in the war on terror is to continue to work directly with the military – after all the one Pakistani institution that the US has traditionally invested in is the Pakistani Army. Further, there was widespread expectation that during the prime minister’s US trip American officials would share with him evidence of the ISI’s covert support for the Taliban. The PPP government’s failed attempt to change the reporting line of the ISI clearly establishes that our premier intelligence agency isn’t squarely within the control of the civilian government.

At the expense of some embarrassment and despite the depiction of weakness, the prime minister would thus have been able to argue that the PPP government should not be held accountable by the US for the actions of an agency that fell within the province of the military. Given that the transition to democratic rule is still in its infancy, the US should pressure the military to clean up the ISI and allow it to be placed under civilian control, the prime minister could argue. And two, for purposes of domestic consumption, the ISI decision and its reversal highlights a reality that goes largely unnoticed when the face of the government is civilian: the military in Pakistan is still all-powerful and its interference in politics and governance is disabling the PPP government from pursuing popular demands like impeaching General Musharraf and removing his coterie from the Establishment.

Further, by reversing the decision on the military’s insistence, Mr Zardari would like to believe that he has won himself a bargaining chip in his negotiations with the military over the rest of his wish list. And Mr Zardari is adept at scheming of this sort. For example, one of the first decisions that the PPP government took in its early days was appointing Dr Shoaib Suddle as the IG of Sindh Police. This was done despite the fact that PPP had decided to give a shot to forming an alliance with the MQM and with full knowledge that the MQM would go berserk over Dr Suddle’s appointment as IGP. In the PPP-MQM negotiations over forming the government in Sindh, Mr Zardari effectively used the appointment and its reversal as leverage. Once the purpose was achieved, Dr Suddle was quickly appointed DG of the Intelligence Bureau.

Call it smart negotiation skills or talent in conniving, Pakistan’s foremost misfortune at the moment is that scheming minions are now masquerading as leaders. Can our wheeling-dealing politicians be cured of their propensity and preference for crooked underhand deals? What are the compulsions of power that prevent the Zardari-led PPP from governing this country in an upright and principled manner?

Probably never before has a regime exterminated hope for a better future from a land as swiftly as the PPP-led government has done in Pakistan over the last couple of month. This nation is glum not merely because subsistence is posing a challenge to a majority, but because people have no faith in the intentions of the PPP-led government to change things for the better. Pakistan is confronted with serious challenges and it needs bold decision-makers, and not plotters.

Take the ISI decision for example. Our intelligence setup has transformed itself into a monstrosity that needs urgent reform and civilian supervision. There is a gaping hole between the legal structure and reporting line of the ISI and the practice of the agency. There is no principled reason or legal basis for the ISI to have a direct or dotted reporting line to the army chief. The ISI falls under the effective control of the army because there is an unwritten rule that it will be headed by a serving general, who then reports to the army chief. Also the ISI’s work relates to defence and security policymaking that the military treats as its exclusive sphere. The practice thus contradicts the law, according to which the ISI falls under the control of the prime minister.

Further, the rules of business empower the prime minister to change the reporting line of the ISI and place it under the control of the Interior Division. But the legality of a decision is one thing and its merits quite another. Had the PPP been serious about intelligence reform, it would pursue a three-pronged approach: a. ensure that our legal framework enables our intelligence agencies to perform their functions effectively, and the agencies, in turn, do not overstep their legal mandate; b. revamp the structure and reporting line of the agencies to strengthen their internal system of checks and balances and make them accountable to the civilian executive and the parliament; and c. facilitate greater coordination and information sharing between the various state actors involved in decision-making, so that intelligence can be used as an effective policy tool.

How would the concerns related to the ISI – including that it is out of government control and running amok – be addressed by subjecting it to Rehman Malik’s supervision? To say that our security czar is a man of some notoriety is probably an understatement. Thus, even if placing the ISI under the control of a ministry was the panacea for all its ills, the choice of Rehman Malik for the job was certain to evoke the reaction that it did. It is true that there is an amount of crookedness intrinsic to politics the world over. But the Zardari-led PPP has introduced double-speak and scheming to the affairs of the state in a manner that has deprived the government of all credibility.

Mr Zardari signed the Murree Declaration and later reneged on his promise to restore the judges. While the PPP still claims to be committed to restoring the judges through its ignominious constitutional package, Farooq Naek is leaving no stone unturned to sabotage the lawyers’ movement and lure deposed judges to be “reappointed” to their Nov 3 seniority. Privately even the PPP leaders acknowledge that Mr Zardari has no intention of seeing Chief Justice Iftikhar Chaudhary return to his mantle.

The approach to the General’s impeachment is no different. Between privately alluding to the fact that the army won’t allow Musharraf’s removal, and publicly stating the decision to impeach him has been reached “in principle,” the PPP’s policy towards the General couldn’t be more equivocal. Similarly, the description of the PPP’s policy towards the war raging in the tribal areas vacillates, depending on the audience.

Can a country remain hopeful about its future if its citizens start to disbelieve everything they are told by their government? Salvaging the dismal situation and getting back on track might still be possible for the PPP government, but only if it wakes up to the realisation that bold and candid decision-making, together with effective governance, will help sustain its rule, and not its existing scheming ways. If the Zardari-led PPP won’t restore the judges or stamp out Musharraf and his cronies, it must stop blowing sand into the nation’s eyes and come clean. What is worse than a bad policy is the PPP’s present policy of measured ambivalence. While the skies are not about to cave into Pakistan (contrary to what our “controlled democracy” enthusiasts would have us believe) the coterie of ruling politicians is certainly making it harder to defend the need and viability of democracy in Pakistan.

Email: sattar@post.harvard.edu

To compare the power vested in and exercised by the general during his reign and that entrusted to the present coalition government is like comparing apples with pears. In the realm of domestic affairs, the general was answerable to no one and the scope of his power and the province of his jurisdiction was all-encompassing. And in managing the country’s foreign affairs he was the only one who shared a hot line with military commanders in the region as well as with heads of states across the globe. Such efficiency of command comes along with a complete monopoly over state power and an inability of other individuals and institutions in the country to prevent its abuse. And that is exactly what democracy sets out to prevent.

The opportunity to rule a state that suffers from the hangover of military rule comes along with serious limitations. In theory the elected government might have the authority to make all executive decisions related to the state in accordance with the constitutional scheme of power distribution. But in practice it does not enjoy the power to formulate policy with regard to defence and security matters as well as areas of foreign policy that impinge on security affairs to point one example. And even in the areas of policymaking where a civilian executive can actually make decisions, it is heavily dependent on tools that fall beyond its control. The civilian infrastructure of the state has been rendered so dishevelled and threadbare due to lack of investment over the decades that civilian governments end up relying on the comparatively organized military for jobs ranging from cleaning canals and fixing WAPDA to rescuing policemen holed up in police
 stations within Pakistan’s tribal fiefdoms.

Take internal security for example. The Lal Masjid operation was a disaster of mammoth proportions not necessarily because the vigilantes were correct in their decision to inflict morality and virtue on fellow citizens, but because instead of using a police force trained in policing citizens and prosecuting criminals the security operation was handed over to agencies specializing in the art of killing. What they obliterated, along with humans in the mosque, was valuable evidence that could have otherwise led to conviction of the militants fighting against state agencies. It will be no surprise now if all the detainees of Lal Masjid simply walk once they have their day before an unbiased court, for in a court of law the onus of establishing guilt needs to be discharged by the state.

But we don’t seem to have learnt the right lessons even now as while the blame-game continues there is little talk of training and equipping the police to transform it into a force capable of handling the serious internal security challenges this nation is confronted with. And this is where civilian governments are to blame. Instead of investing in and empowering civilian infrastructure to serve as an effective foundation for civilian governance, elected governments are all too happy to opt for fire-brigade operations and rely on military and paramilitary support to produce immediate results.

Apart from lack of jurisdiction over certain policymaking issues and excessive dependence on military dominated agencies in all areas of governance, our elected governments have also lacked the courage to imagine that the future can be different from the past. This psychological barrier may be a product of our chequered political history wherein unrepresentative forces have continued to trump the representative ones. But an excessive focus on their inability to usher change causes our political leaders to continuously try and predict what the unrepresentative forces might desire – be it the military or the US Administration – and act accordingly. This causes elected leaders to be constrained not only by the explicit demands of non-representative interest groups (local or foreign) but also by their perceived wishes.

These self-imposed restrictions on freedom of thought and action of elected civilian governments in turn empower the non-representative forces even without their asking. They also make political forces seem toothless, inept and dysfunctional. Thoughless belief in the ability of others to control our will, our wishes and our fortune leads to oft-repeated claims like, ‘no the judges cannot be restored because America doesn’t want that’ or ‘Zardari cannot become prime minister or president because the military isn’t allowing it’. America might not want the judges back, and the army might not trust Zardari. But that doesn’t seal the fate of the deposed judges or Mr Zardari (for better or for worse). Instead it is the professed obligation of our politicos to comply with the perceived wishes of faceless forces that seals the fate of this nation and prevents it from assuming control of its destiny.

Democracy has never been advertised as the most efficient system of governance around the world; only the safest. And there is nothing intrinsic about Pakistan or the genius of its people that requires us to reinvent the wheel. The fruits of democracy lie not in the immediate term results produced by a credible election, but in the continuing process that empowers the public, educates it and establishes a continuous system of public accountability for those exercising state authority. The promise of democracy (in the words of Justice Louis Brandeis of the United States) is that the most important office is the office of the citizen, and we are a long way from that ideal. The return of democracy in Pakistan cannot produce selfless men and women of integrity, courage and conviction overnight to lead us out of the woods and undo entrenched power structures. For that we will have to demonstrate the patience to allow the system to run long enough for us to be
 able to sift the grain from the sheaf and create a sustainable political culture that finds and nurtures worthy leaders.

Meanwhile this nation is not ready for new praetorian experiments just yet. Those who misread the amused response of bar councils toward Naeem Bokhari’s now infamous letter against Chief Justice Iftikhar Chaudhry as collective apathy toward the office of the chief justice should not misconstrue the gloom over the coalition’s performance as evidence of this nation’s willingness to accept another saviour. The present despair should however be seen as a threat of reprisal for those in whom the people reposed their trust on February 18. The elected representatives of the citizens need to wake up and smell the coffee. If they become too pragmatic and acquiesce in ground realities, the fate of PML-Q is before them. But if they choose to strengthen civilian institutions –parliament, the judiciary, the civilian enforcement agencies – they might reclaim the constitutional mandate to run the polity that has been usurped by non-representative forces. And in the process they will be making a lasting investment in the democratic future of Pakistan as well as their own.

Law minister Farooq Naek claims that he has single-handedly drawn up this draft bill under Asif Zardari’s guidance. His assertion must be true for the bill is ambiguous and shoddily drafted. But poor draftsmanship and lack of constitutional prudence is the least of our concerns at the moment. This draft bill is not just ambiguous, but malicious for (i) it indemnifies the Nov 3 actions of the general and (ii) if passed, it would mutilate the basic structure of our constitution by turning the judicial branch into an extension of the executive for all times to come. The PPP has stated that this bill is not ’sacrosanct’ and will be subject to change in view of comments received from coalition partners and the public. Nevertheless, as an embodiment of the PPP’s base position on (a) the treatment to be meted out to dictators and usurpers, (b) the desirable form of ‘judicial independence’, (c) the preferred balance of power between the pillars of the state, and (d) acceptable schism between words and actions, this draft bill is shocking.

Let us recap the issues in question. The legal fraternity has been crying hoarse that the choice of constitutional amendment as a ‘modality’ to undo the mess created by the general will, by implication, amount to accepting his actions as legal and underwriting the assumption that the constitution can be amended through the barrel of a gun. An illegal order is simply void and doesn’t need to be reversed through law making. Setting such a precedent could come back to bite us in the future just like the judicially manufactured ‘doctrine of necessity’ continues to haunt us today. But this concern is about future dictators obligating democratic forces to manufacture a two-thirds majority in parliament to bypass their edicts. Let us turn to the present. The PPP has tried to be cute about the indemnity issue by not addressing it directly in the draft bill, while imbedding a legal cover for the general’s actions in the language of the proposed Article 270CC that talks about restoration of the superior court judges.

Article 270CC states that “notwithstanding anything contained in any provision of the constitution, the Oath of Judges Order 2007, the High Court Judges Order 2007, the Supreme Court Judges Order 2007 and any other law for the time being in force or judgment of any court including a high court and the Supreme Court, the judges of Supreme Court and high courts including the chief justice of Supreme Court and chief justices of high courts who had ceased to continue to hold office in pursuance of the Oath of Judges Order, 2007, dated the 3rd day of November, 2007, shall stand reinstated/restored to the position and seniority they were holding on the 2nd day of November, 2007.” The language of this article assumes the legality of the Oath of Judges Order, 2007, and affirms that the deposed judges had ceased to hold judicial office, before creating a constitutional carve-out or exception to restore them.

Even if a constitutional amendment was the PPP’s preferred route to restoration, to pre-empt a stay order from the Dogar court and avoid legal confusion as claimed by the PPP, the language of the restoration article could have stated that the general’s actions of Nov 3 — including the forced removal and illegal detention of judges — were illegal, and notwithstanding Article 6, the PCO judges’ initial oath of office under Articles 178 and 194 of the constitution and the Supreme Court order of Nov 3 (rendered by the full court headed by Chief Justice Iftikhar Mohammad Chaudhry declaring the general’s acts of Nov 3 as unconstitutional), the judges who swore an oath under the general’s PCO and those appointed after Nov 3 will be retained. Such a construction of the restoration clause would acknowledge the illegality of the general’s actions and the judges who chose to swear by him, while restoring the deposed judges and also retaining the PCO judges (that the PPP wishes to do for questionable reasons). What it would not do is grant general indemnity to a dictator’s actions by assuming their legality.

More shocking than the indemnity being granted to the general is PPP’s proposed model of judicial independence. The draft bill proposes new procedures to appoint and remove judges. The proposed Articles 177A and 193A provide for the creation of a commission comprising members of the judiciary and also including the law minister to make judicial nominations. The prime minister would be provided two names for each vacant position and he would elect one nominee and forward his/her name to a joint parliamentary committee, comprising members of the treasury and the opposition, for confirmation. This process vests in a parliamentary committee the right to debate and confirm judicial appointments and is an improvement over the previous opaque system despite the fact that it wrests away the judiciary’s sway over judicial appointments.

The mechanism for recruiting judges, while important in terms of electing the right people to serve the system of justice, only has a small part to play in determining the independence of a judge once appointed. It is the security of tenure and protections against arbitrary removal that fortify judicial independence and empower a judge to act without considerations of fear or favour. And it is this crucial security that the draft bill threatens to take away from the judicial branch. The new Article 209 proposes to disband the Supreme Judicial Council (comprising the chief justice of Pakistan, two senior most judges of the Supreme Court and the two chief justices of high courts) that is authorized to investigate charges of judicial misconduct and remove judges accordingly. This council is to be replaced by a judicial commission that will consist of a “non-politicized” retired chief justice in the chair, and two “non-politicized” retired judges of the Supreme Court and one “non-politicized” retired judge from each high court.

The members of the commission will be appointed by the government on such terms and conditions as determined in its discretion. Thus, a body of retired judges, serving at the pleasure (read whims) of the executive with no constitutional tenure and security of service shall sit in judgment over which judge is fit to serve. This provision will constitutionally empower the ruling party to stuff this judicial (witch-hunt) commission with loyalist retirees and once they initiate an investigation into the conduct of a judge, such judge will be sent on forced leave during the period of such investigation. Thus, the sword of Damocles will continue to hang over all judges at all times who would be well advised to remain invisible and compliant to avoid the ire of the government. Even if the witch-hunt commission does not eventually remove a judge who dares to act independently, the threshold for initiating an investigation against a judge is so low that the government would be able to manipulate the outcomes of matters he/she is ceased of by initiating an inquiry and sending him/her on forced leave.

From a historical perspective, the malice of Pakistan’s judiciary has not been its ‘activism’ but the willing surrender of its duty to defend the constitution and protect fundamental rights of citizens against transgressions of the executive — more so in times when executive authority is annexed by a dictator. Sixty years after independence, under immense pressure from the bar and the public, the judiciary finally dared to question the whims of the general who monopolized the state’s executive authority. It was the possibility of creating a judiciary free from the shackles of the executive that fuelled the rule of law movement of the lawyers and civil society. And what lessons did the PPP draw from the movement? That the constitution needs to be amended and institutionalized restraints built-in so that the judiciary and individual activist (read miscreant) judges can be disciplined before their dissenting voices can stream-roll into a popular movement.

Part II

What would have happened to the rule of law movement had the PPP’s proposed amendments been a part of the Constitution in 2007? There would be no movement. The president would not need to unconstitutionally sack the Chief Justice on March 9, 2007, because he would have the constitutional authority to do so under Article 209. The government would not need to coerce and entice members of the Supreme Judicial Council to seal the fate of an ‘errant’ Chief Justice, because it would have the authority to compose a witchhunt commission that is predisposed to toeing the official line. In such a neutered system of justice, the courts would be packed by judges groomed in the Dogar mould and the rulers of the day would never need to declare a coup against the judiciary as witnessed on Nov 3. If approved, the amended Article 209 alone will transform the basic structure of our Constitution that envisages the judicature as an equal and independent pillar of the state, by making it an appendage to the executive.

The last few years have seen such extensive debate on the issue of appointment and removal of judges as never witnessed before. Such debates preceded the execution of the charter of democracy between the PPP and the PML-N, and consequently the appointment process streamlined in the charter, and now with some variation in the draft bill, endeavours to institute a transparent consultative process to appoint judges that includes the judiciary, the executive and parliament. Is it a sheer oversight then that the PPP opted for a removal process that leaves judges of superior courts at the mercy and whims of the executive? Who would determine whether the members of the proposed witchhunt commission are ‘depoliticized’? What does the word even mean and is it capable of being translated into a judicially enforceable concept? And why leave parliament out of a removal process that supposedly aims to strengthen judicial accountability? If judges are appointed after extensive bipartisan scrutiny, why not allow parliament to impeach them with a two-third majority as happens in many other jurisdictions, including the United States?

We have heard Asif Zardari repeat ad nauseam that the PPP is committed to strengthening the institution of judiciary and that focus on individuals in the context of restoration is misplaced. While the proposed removal process is indicative of the PPP’s approach to institutional independence of the judiciary, equally malicious is the duplicity in the words and deeds of the party when it comes to emphasis on individuals. While the PPP emphasizes de-linking the movement for judicial independence from the restoration of CJ Chaudhry, what it wants in reality is a shift of focus from the person of CJ Chaudhry in a manner that serves the person of Justice Dogar. That is why the draft bill includes three articles that have been drafted solely to return Justice Dogar to the office of the chief justice even in the aftermath of restoration. Under Article 179(2) the tenure of the chief justice will be capped at three years (or maybe five if the pressure from the PML-N and the lawyers doesn’t subside) to hastily show CJ Chaudhry the door after restoration.

Given that Justice Dogar reaches the age of superannuation on March 21, 2009, the retirement age of the judges of Supreme Court is being enhanced to 68 through Article 179(1), to give him a few more years as chief justice. But then there is the problem of Justice Javed Iqbal who was the second senior most judge on Nov 3 after CJ Chaudhry. While Justice Javed Iqbal was not invited to be a PCO judge he was offered a ceremonial position by the Musharraf regime that he took citing personal financial need. Now if all judges are restored, the CJ’s tenure is capped and the retirement age enhanced, Justice Dogar still won’t become CJ as Justice Javed Iqbal is not only senior but would also retire after Justice Dogar. Thus a proviso has been added to Article 270CC, stating that all judges would be restored, except a judge who has taken up another position with the government. Justice Javed Iqbal is the only such judge and so instead of including a long-winded fable in the proviso, Mr Naek could simply have stated that all judges except Justice Javed Iqbal will be restored.

The PPP’s draft bill has been a disappointment of enormous proportions. One the one hand it documents the double-speak of the PPP that enjoys taking jibes at the general as a populist measure while seeking to indemnify his felonies by amending the Constitution, and utters platitudes in favour of a strong judiciary while devouring its independence through law. On the other hand, the content of the draft bill suggests that the PPP has no intention of resolving the judicial gridlock. As an embodiment of the PPP’s policy on the issue of restoration of judges and judicial independence, this bill makes evident that the incumbent PPP leadership simply does not subscribe to the principles that have been driving the rule of law movement and the choice of constitutional amendment as a mode to restore judges is simply a smokescreen to defer the issue indefinitely.

To the extent that PPP’s policy on restoration is being defined by its desire to have a pliant ‘jiala’ court serve its government uninhibited by law and principles, it cannot afford to restore the deposed judges without amending Article 209 of the Constitution. Because the moment the Nov 3 judiciary is restored, the Supreme Judicial Council under the existing Article 209 could be constituted to investigate the misconduct of the PCO judges, and consequently the leverage Zardari house enjoys in this regard might vanish in a moment along with its dreams of retaining a Dogar Court to look out for Mr Zardari’s legal interests (including the longevity of the NRO). And then the constitutional amendment route has its advantages too. After all the PPP has never explicitly stated that it is opposed to restoring the judges and yet in theory it has now thrown the ball in the court of its coalition partners by handing them the malevolent draft bill.

The coalition partners, the lawyers, civil society and the media can now continue to debate the draft bill clause-by-clause, and once it is introduced in parliament, the debate and disagreement can continue till the cows come home. Meanwhile, the deposed judges can hang in a limbo, the Dogar Court can stay in place, and Zardari House can continue to hold the reigns of the country. During this period of foot-dragging in the name of consultation, the lawyers’ movement might die its own death due to fatigue. If that doesn’t happen and the long march does shake up the echelons of power, the immediate casualty will be General Musharraf. And such outcome might in itself take the wind out of the sails of the lawyers’ movement by providing an exhaust to this nation’s pent-up anger and emotion. And then PPP can take charge of the presidency as well while continuing its antics in parliament over the restoration issue.

Asif Zardari has written an intelligent script. But as a student of history and politics he should heed the lessons from General Musharraf’s recent experience and realize that in real life fairytales do not always end as desired. During the first half of 2007 there were ample opportunities for the general to read the writing on the wall and change course. Being the commando that he is, he sought to become infallible and consequently trapped himself in a corner where he now remains at the mercy of Mr Zardari and their US patrons. There is always a time for redemption, followed closely by unforgiving accountability. The pursuit of his self-scripted fairytale might appear to be the best option for Asif Zardari for the time being. But appearances can be deceptive. The safer option would be to reassess his options with a finger on a national pulse and make amends before time runs out.

By Babar Sattar