Thursday, February 26, 2009


By Usman Khalid

The Supreme Court of Pakistan, in the celebrated tradition of Kangaroo Courts, gave a judgment on 25 February disqualifying former Prime Minister Mian Nawaz Sharif, and Mian Shahbaz Sharif, the sitting Chief Minister of the Punjab, from contesting elections or holding a political office. In a press conference held by Sharif brothers the same day, it was revealed that President Asif Zardari had offered Mian Shahbaz Sharif a deal – a decision in their favour in the case to disqualify the Sharif Brothers in exchange for help in amending the Constitution to give extension to Chief Justice A.H.Dogar. It may be kept in view that Justice Dogar was the selection of Benazir as replacement for CJ Iftikhar Chaudhri. Justice Dogar took a fresh oath of office on the PCO on November 3, 2008, by which General Musharraf had dismissed the sitting Chief Justice Iftikhar Chaudhri and sixty other judges of the Supreme and High Courts. Although the President Zardari’s Office denied the deal offer, there is other evidence how desperately he wants to extend the tenure of Chief Justice Dogar. The extension of his tenure was a part of the package of 85 or so constitutional amendments drafted by his personal lawyers Farook Naek who is now the Minister of Law.

That the politics of Pakistan has returned to the rut of familiar grooves so soon after nine years of Musharraf rule is indeed shocking. Benazir Bhutto and her husband, Asif Zardari, had been consigned to political oblivion by similar dubious laws and procedures. After 11 years out of office and Asif Zardari himself having been incarcerated for eight years, the PPP appears to have learnt nothing. Politics continues to have no purpose except to come to power and stay in power by hook or crook. The essential part of securing monopoly over power is to ‘destroy the opposition’. Murder (preferably judicial) is still the preferred weapon of politicians. If that is not possible, dragging opponents into courts is the next best weapon. Asif Zardari is a past master at both having learnt the tricks of the trade at the receiving end. He is accused of the unsolved murder of his brother in law – Mir Murtaza Bhutto - and is the chief beneficiary of the assassination of Benazir Bhutto. Because of that and his reputation of corruption as Mr 10 percent, he is unacceptable even to the PPP rank and file as the inheritor of the Bhutto mantle. His unsavoury moral reputation makes him a figure of contempt all over the country particularly in the province of Sindh from which hails. His leaning towards India and his bypassing the institutions of the state to make private deals with crime syndicates inside the country and foreign governments and agencies, makes him an outlaw and the most reviled leader of any country in the world.

Democracy was restored in Pakistan only a year ago after nine years of Musharraf rule. The people are ready to give the politician time and a lot of space. But his past makes him paranoid. When a ruler does not have legal, political or moral legitimacy, he depends on the coercive power of the state (police and the military) and support of a compliant judiciary to stay in power. Unlike Musharraf, Asif Zardari has legal and political legitimacy. He is not politically or personally not vulnerable but he has become vulnerable on moral grounds having gone back on written promises made to political allies to restore Chief Justice Iftikhar Muhammed Chaudhri. His restoration has become the cause celebre enjoying around 80% public support. The Lawyers’ Movement is planning a march on the capital and sit-in in to press their demand. Since the PML (N) is the ruling party in the Punjab and it has decided to take part in the march and the sit-in, President Asif Zardari was afraid that the combination might force his hand. He decided to use the ‘Dogar Court’ to oust the Sharif’s from politics and put the fear of God in the faint hers of the PML (N) and install a PPP led coalition in the Punjab. It is high-risk game that may well result in the ouster of President Zardari.

The Prime Minister – Yousaf Raza Gilani – has kept himself aloof from the Zardari machinations. He kept his channel of communication open with Sharif brother and he called the Punjab Chief Minister to tell him that he had no role in his disqualification and that he considers the fallout from it to be harmful to the country. He has courted the danger of being asked to resign. He must resist such a call and ask to be dismissed under Article 58 (2) b of the Constitution instead. That would be fitting revenge for the humiliation of being by passed by the ministers as well as bureaucrats who get orders direct from the President. He is still the Chief Executive who enjoys the confidence of the House. If he stood firm and asserted himself in refusing to undermine the largest party in the Punjab Assembly, he would do a yeoman service even to his own party by insisting publicly on the constitutional process being followed in ‘letter and spirit’. A coalition of the PML (N) and the PML (Q) can defeat the machinations of the Governor Salman Taseer – the one person hated even more than Asif Zardari. If that is not be possible because of the obsessions of the Chaudhries of Gujrat, a forward block of PML (Q) could form a coalition with PML (N). But Zardari and Salman Taseer are playing a high stake game; they know they could be ousted if they lost. It would be foolish to consider that their bag of tricks contains only the Chaudhries.

In ‘Capital Talk’ programme of Geo TV, Mr Akram Sheikh, a lawyer who argued the case against disqualification of Sharif brother, said, “ The decision of the Supreme Court (on disqualification) is like a suicide attack on democracy like the PCO of November 3, 2007 was a suicide attack on the judiciary”. I believe that to be true. Musharraf did succeed in getting himself elected as the President for five years while still in uniform with the help of the ‘Dogar Court’ but he lasted only five months. A popularly elected party could not mortgage its political future to the corpse of a defeated dictator. The promulgation of the PCO on November 3 did turn out to be suicide attack that led his political death. The Governors rule in the Punjab may also not succeed in securing a coalition of the PPP with the PML (Q). Even if it did, the irate electors would continue sporadic violence. The Afghan war has spead to NWFP and Baluchistan already; it may now spread even to the Punjab where the PPP may replace the ANP as the target. Clearly, there are still many options open to the PPP to survive and even flourish. But President Zardari has dug his heels on the issue of restoration of the Chief Justice. His resolve to persist would continue to close all the good options. In the end, the President and the Governor of Punjab would be confined to their official residence where they might barricade themselves against the public. Who will they ask to be released from their incarceration? The Police? It always becomes scarce on the ground when the going gets tough for the politicians they are posted to protect. The Army? Reviled so much for so long by the politicians, it is not eager to face the wrath of the people to save some political skins. The Army would also advise Asif Zardari to do the right thing and restore the Chief Justice.

The Army Chiefs have carried out coup d’etat in Pakistan often in response to the political government facing insurrection. But a coup is unlawful – it is ‘high treason’ under Article 6 of the Constitution. Once they commit ‘high treason’ they get personally on the wrong side of the law. They compound their crime by further unlawful actions like suspending or even abrogating the Constitution. They need ‘pliant judges’ to invoke the ‘doctrine of necessity’ to provide a measure of legitimacy to their rule. But such legitimacy is often conditional and restricted in time. The majority of the political class, out of favour for long, are eager to do the bidding of the Army Chief. He gets welcome as the head of a party of political orphans. As he pin his colours to its mast, the party becomes spectacularly popular and wins the elections. The military dictator gets electoral legitimacy. He becomes convinced of his ‘Midas touch’. He becomes convinced of his everlasting popularity and his political acumen. When his party secures majority with or without other coalition partners, it always gives indemnity to all the actions of the dictator and validates all the laws enacted during the earlier purely military rule. That has been the pattern followed by every military dictator – Ayub, Zia and Musharraf. Now that pattern is broken.

Every thing that a military dictator does follows from his first crime – overthrowing a legitimate government. He continues in power by the acquiescence of the high judiciary and the availability of thousands of louts in the political class eager to enjoy political power riding on his back. It has become hard for a military dictator to replicate the pattern because of the wide viewer ship of TV – both national and international. The free media keeps the politicians under the spotlight and puts pressure on them, in fact on all holders of power and authority, (particularly the judiciary) to act in accordance with law and to meet the demands of good governance and the rights of the people. The Lawyers’ Movement for the restoration Chief Justice Iftikhar Chaudhri is the manifestation the public pressure on all politicians and public servants to act in accordance with law.
When a real criminal enters high office as Chief Executive or the Head of State, his situation is no different to that of the military dictator. He also needs a pliant judiciary and the service and support of the drop-outs, who constitute much of the political class. Asif Zardari is the first such politician to entered high office with many skeletons in his cupboard. He fears the Lawyers’ Movement and rising public support is his worst nightmare. He thinks if the judges can over-rule him, they would be the rulers not him. He is right. That is precisely what the rule of law is about: judges being able to overrule an official, however high, when he does not conform to law or acts against public interest. On the other hand, there is no way the present crisis is going to be resolved without Chief Justice Iftikhar Chaudhri being restored. At this moment, however, Prime Minister Yousaf Raza Gilani and the Chaudhries of Gujrat can save the political system. If the Governor rule is ended in the Punjab and a new coalition formed within a week that excludes the PPP, the crisis may be resolved. However, if neither of them rises to the occasion, military intervention would remain the only viable good option.

This time, the Army Chief does not have to be on the wrong side of the law. He can act lawfully if he responded to the call by the Supreme Court made by a ‘seven judge bench’ on November 3, 2007, to come to its assistance. Since General Musharraf was the President as well as the COAS at the time, the Army was constrained in responding to that call. Now under the new Army Chief, the Army can respond as an institution, revoke the PCO, and restore the legitimate judges. Chief Justice Iftikhar Chaudhry is still the Chief Justice of Pakistan and the order by the seven-judge Supreme Court bench presided buy him is a valid judgement. The action by the military to restore the judges would have several benefits over a political compromise, which is the maximum one can hope under the present circumstances.

1. The military would be acting lawfully in assisting the Supreme Court and act under its direction.
2. It would raise the prestige of the Army in doing the right and lawful thing and not taking over power of the state into its hands.

3. It would allow the legally dubious NRO to be revoked and allow action against criminals who have not just escaped punishment but have come to occupy high offices of state.
4. It would allow the review of the 17th Amendment not from party political point of view but from the standpoint of national interests and good governance.
The situation is too fluid to make any predictions. But the fact remains that it is not enough in the national interest that the PML (N) led coalition is restored in the Punjab. It is vital that all the four objectives listed above are achieved. That would require the Army to exert its influence – this time not to capture power but to restore constitutional rule.

The writer was a Brigadier in the Pakistan Army, now the Director London Institute of South Asia

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