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Posts Tagged ‘NRO Verdict’

Folly, not clash of institutions

30 Jan

By Ayaz Amir for The News, appeared on Friday Jan 29, 2010

Clash of institutions has a grand ring to it, suggestive of Cromwell's Roundheads battling the monarchy; or the children of the French Revolution slaughtering the French nobility; or Lenin's Bolsheviks storming the Winter Palace. 

 

Would that this were the state of affairs in Pakistan. We could then expect something creative, a higher synthesis, to emerge from all this disorder. But we are not that lucky. This is less clash of institutions than elephants on parade: large egos on the march, the vanity of mediocrity on display — dressed up, as Pakistani mediocrity mostly is, in the colours of national salvation. 

 

If Prime Minister Yousuf Raza Gilani is refusing to put a pistol to his head, if he is refusing to become another Farooq Leghari, and if the National Assembly (including the PML-N) is with him on the matter of not committing collective suicide, media samurais — of whom there are not a few and who deserve the title of Ustad-e-Fidayeen better than any Taliban — are dismayed, and almost on the verge of hysteria, because the triumph of prudence is the last thing they wish to celebrate. 

 

For six months and more these laptop warriors have been spreading confusion and alarm, conning a public which they take to be gullible into thinking that political change is around the corner. But their deadlines having not been met, not once but repeatedly, it is not surprising if there is an air of increasing desperation about their battle-cries, which they expect the public to take as serious analysis. If their frantic outpourings are serious analysis, comic relief acquires a different meaning. 

 

Two slogans have proved the most enduring in our history: Islam and corruption. Every humbug in authority, especially when besieged and short of real answers to our many problems, has raised the banner of Islam, none more loudly than Gen Ziaul Haq, who would be prince if ever there was a kingdom dedicated wholesale to the worship of hypocrisy. The more of a mess we have made of our Constitution the greater the reliance on Islamic references — not for acting upon them, perish the thought, as for the sacred rites of lip-service and window-dressing. 

 

To much the same use has been put the slogan of corruption. In every military coup, from Ayub to Musharraf, in every civilian coup, whether carried out by Ghulam Ishaq Khan or Farooq Leghari, the eradication of corruption has figured as the foremost priority. Ironic, then, is it not, that after every forced transition, every turn of the screw, the one thing to explode was corruption? So much for the good intentions, and so much for the heaven they led to. 

 

At present too the idea of change — that change is necessary if Pakistan is to survive — has been hyped up relentlessly around the theme of corruption. Foremost in this campaign, although keeping themselves well hidden in the shadows, have been the self-appointed guardians of our ideological frontiers. They may have been less than adept at guarding our geographical frontiers — the ones visible on a map — but the ramparts of ideology, in their own definition of this term, they continue to guard jealously.

 

. . . .  it is salutary to remember that the judges did not restore democracy. It was democracy which restored them. 

 

The laptop warriors may be doing their own thing, for in their ranks are to be found the odd knight of good faith genuinely taken in by all the talk about corruption, but the wrecking game they are embarked upon fits in neatly with the agenda of the ideological warriors who are just not comfortable with a civilian dispensation. 

 

Angels from heaven can descend tomorrow and minister to the needs of the Islamic Republic, but the ideological warriors and the definers of strategic depth — one and the same thing — won't be satisfied. Why do they suffer the Constitution? Why do they endure civilian trappings? If they are so impatient with democracy they should make Myanmar their model and once and for all have done with the charade of democracy. 

 

It is a measure of the success of the forces out to alter the political landscape that in just two years since the revival of democracy, they have managed to instil into the minds of the middle class — which for all its presumed sophistication is the first to fall for such gambits — that Pakistan's number one problem is corruption. If this bull is caught by the horns salvation is at hand. If not, the Republic faces ruin and destruction. 

 

The lawyers' movement did much good in that it helped weaken the foundations of dictatorship, although I must hasten to add that by itself it wasn't strong enough to defeat that dictatorship. That outcome had to await the fruition of the political process as signified by the holding of elections and the assumption of office by a political government. Even so, the lawyers' movement was an inspiring sight while it lasted. To a nation caught in the throes of depression it gave a glimpse of what resolve and sustained commitment could achieve. 

 

But there have been some negative effects too. One is the outbreak of a species of arrogance amongst lawyers finding vent in violent and yahoo behaviour. The frequency of such outbursts is serving to dim the shine of the lawyers' movement, the heroes of yesterday allowing themselves to be seen in a poor light. The second is the rise of a strange kind of innocence which seems to be divorced from any understanding of Pakistan's tempestuous past. 

 

This innocence finds expression in the belief that the movement and the subsequent restoration of the judges were turning points in our history. In this somewhat exalted view of things, the restored judges have been cast in heroic colours, indeed likened to prophets of a new dawn in which justice and the rule of law will always prevail. It was no doubt in a like spirit of exaltation that Justice Jawwad Khawaja in his added note to the detailed judgement of My Lord the Chief Justice in the NRO case stated that the last three years in their momentousness "… can be accorded the same historical significance as the events of 1947… and those of 1971…" 

 

Jinnah was the hero of 1947 and Yahya the anti-hero of 1971. While Musharraf can be made to run a close parallel to Yahya, whom should we take as the Jinnah of the last three years? In any event, this rendering of history can be faulted on another count. On our side of the divide, Jinnah was the sole architect of 1947. Lawyers and judges have not been the sole shapers of the outcome of the last three years. They played a part and often a heroic part in those events but not the sole part. 

 

And it is salutary to remember that the judges did not restore democracy. It was democracy which restored them. As we go on about a new dawn this sequence of events should not be forgotten. 

 

Furthermore, as laptop warriors foam at the mouth and serve up their beliefs and desires as news and analysis, faith that a new dawn is really at hand will be immeasurably strengthened if the guardians of justice take up two pressing challenges: (1) apologise in the clearest of terms, with a due sense of contrition, for the oath taken by them at the altar of Musharraf's PCO in 2000, and if some amongst their present lordships validated Musharraf's coup in the Zafar Ali Shah judgment, an apology for that too; and (2) take up instantly Air Marshal Asghar Khan's petition about the Mehran Bank scandal and the money distributed by the ISI in the 1990 elections. 

 

If there is any hesitation on both or either of these counts — and there can be very understandable reasons for exercising caution — would it be too much to ask that discretion be the better part of valour in other things as well? 

 

The inadequacy of the political class may be great and may be enough to drive one to despair. But if there is one lesson of our history it is that there is no alternative to democracy. It is within its fold and bosom that we must seek its reform and correction, and the salvation of the Pakistani nation. 

 
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Pause, Sirs, and Ponder

24 Dec

This article was written by Pakistan's finest analyst, Mr. I. A. Rehman, for Dawn, published on December 24, 2009

 

The fact that in its response to the Supreme Court judgment of Dec 16 the nation is divided cannot be denied, and prudence demands that the causes of this division should not be brushed aside without careful scrutiny.

A large section of society believes that Pakistan has become a corruption-free entity and a judicially controlled democracy while a none-too-small section feels deeply hurt. Much can be said for and against both sides.

The hailers are largely guided by their desire to wipe off the shame of becoming one of the most corrupt states in the world. They appear full of zeal for righteousness. However, they will do their cause enormous harm if they fall for the universally repudiated view that the ends always justify the means. The people of Pakistan paid a heavy price for taking this route when they welcomed the usurpation of power by Ayub Khan, Ziaul Haq and Pervez Musharraf.

The wailers are largely moved by the apparent setback to their group. They think the law has been used for a political purpose. They have strong memories of the Tamizuddin and Nusrat Bhutto cases and the judgment against Zulfikar Ali Bhutto. They could be wrong. However, they will do themselves enormous harm if they appear to be defending corrupt persons or practices.

Somewhere between the two extremes stand those who wish to make sure that good intentions do not lead to the dreaded hell. Some of them have a longer record of denouncing corrupt rulers and condemning the NRO than the born-yesterday anti-vice squad. They believe the NRO was a bad law, that it should not have been made, that no one claiming public support should have sought to benefit from it and that those who made this obnoxious law as well as its beneficiaries should pay for their lapses.

According to them the Supreme Court verdict has two parts: one dealing with the NRO, the other with broader themes. They have no quarrel with the first part. They only want to have their fears of the long-term implications of some of the assumptions underlying the court order duly and properly addressed.

The NRO was such an easy target that a single shot (Articles 4, 8 and 25 of the constitution) was enough to demolish it. A fusillade from heavy cannons (Articles 62 (f), 63 (i and p), 89, 175, and 227) has created problems.

The clauses of Articles 62 and 63 cited now constitute part of Ziaul Haq’s arbitrary amendments. They have never been debated by a representative assembly and have been consistently denounced by democratic opinion. It has often been said that the legislatures have not touched them. But this argument should be examined in the context of the circumstances in which the post-Zia assemblies have been elected and the conditions under which the democratic regimes have been allowed to function. Invoking Ziaul Haq’s interpolations in the 1973 constitution, whose revival in its original form is the battle cry of all democratic parties, is like quoting a PCO judge’s ruling before today’s independent judiciary.

Further, reference has again been made to the 'salient features of the constitution, i.e., independence of the judiciary, federalism, parliamentary form of government blended with Islamic provisions' and 'no change in the basic features of the constitution is possible through amendment'. The argument was last heard in May 2000 when 12 judges of the Supreme Court had not only upheld the Pervez Musharraf coup of October 1999 but also allowed him the power to amend the constitution.

Now, the debate over certain parts of a national constitution being outside parliament’s authority to amend them has been going on in Pakistan, India and Bangladesh for over 40 years (Indian Supreme Court verdicts of 1967, 1973 and 1975; Pakistan Supreme Court verdicts of 1963, 1997 and 2000). Professor Conrad, the German scholar who has done much to promote this principle, has succinctly put it thus: 'Any amending body organised within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority.'

An essential question is: are courts the sole forum for determining the basic or fundamental or salient features of a constitution? In many countries (including Canada, Germany and India) the provisions that cannot be routinely amended by parliament are identified in the constitution itself. This is an issue that calls for a thorough debate.

In any case the issue before the Supreme Court was not an amendment to the constitution that would have attracted the basic features theory. The issue before it was an ordinary presidential ordinance. And for laws and ordinances that conflict with the constitution clear remedies are available.

By invoking Article 227 in the present case the Supreme Court seems to have put Islamic injunctions in command of the whole constitution. Quite a few lawyers argue that this amounts to overruling the court’s judgments in the Hakim Khan (1992) and Kaneez Fatima (1993) cases.

The position as far as a lay writer can understand is this: the power to strike down a law for being repugnant to Islamic injunctions lies with the Federal Shariat Court and no other court. Article 227 only allows the Council of Islamic Ideology to recommend changes in laws on the ground of repugnancy to Islam. The article does not empower any forum to strike down any law. When 17 judges of the highest court invest Article 227 with the power to nullify a law it could amount to constitution-making. It is necessary to dispel the fears that the courts could start striking down any law they consider violative of Islamic injunctions.

Besides, the matter is not one of law alone, it is essentially political. The 'salient features of the constitution' theory has no answer for conflicts between these features — between a parliamentary form of government and Islamic injunctions, for instance. And what will happen to the independence of the judiciary if one accepts the view propounded by many Islamic scholars that in an Islamic order the ameer is the head of all state organs — the executive, the legislature and the judiciary?

One cannot forget the case started by Mr Kaikaus, a former Supreme Court judge, in a Shariat appellate bench but which was dismissed by the Federal Shariat Court on a technical ground. He appealed to the bench but withdrew his plea because he did not think the judges on it were Muslims! Mr Kaikaus had branded the parliamentary form of government, the system of elections, and the existence of political parties as un-Islamic! Fears of many such cases coming up are not groundless. The people of Pakistan have every right to ask whether Ziaul Haq’s agenda has been revived.

 
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