By Kunwar Idris
THE February elections were expected to end an agonisingly long uncertainty. However, they have only added to it and prolonged it.
The anxiety was that the polls would not be fair. (They were — when measured against our traditionally low standards of fairness.) But it was the apathetic, confused voter who denied the country the stability it pined for.
As in the past, the majority of voters stayed at home; in fact their number this time was larger because of the fear of violence. The judgment and party affiliation of those who turned up to vote stood subverted by the tragedy and turmoil that preceded the polls and that have been unceasing since.
The assassination of Benazir Bhutto, who was to be the star of the long-awaited electoral extravaganza (in fact we owed it to her), the understanding that she had earlier reached with President Musharraf, the deal she had cut with Nawaz Sharif, a sudden and steep fall in Musharraf’s authority and, finally, the unrelenting rise in food and fuel prices combined to have a negative impact on the polls.
Leaving other factors aside, the elections surely would have resulted in a more authentic government and a more cohesive opposition had Benazir Bhutto lived to lead the campaign. The Q-League too would have fared better had Musharraf not chosen to humiliate a defiant chief justice and had his spooks not beaten up the enraged lawyers. An untimely death and unbounded hubris thus combined to blur the prospects of democracy.
The post-election scene is fraught with many anomalies. The heads of the two largest parties are not parliament members nor, perhaps, will they be for the next five years. Their hand-picked nominees — leader of the House i.e. the prime minister, and leader of the opposition — obviously will not be able to act with the confidence and authority which they must exercise at a time when parliament would be seeking to assert its supremacy over the executive by curtailing the powers of the president and also the role of the army in administration.
A particularly bizarre paradox of the current situation is that some parties, most significantly the PML-N, which are in the ruling coalition, refuse to deal with the president. They don’t even talk to him or break bread with him. For them, he is not legitimately elected. No less bizarre is their similar stance towards the incumbent chief justice and other judges. Yet they have to acknowledge that constitutionally the president is part of parliament and they must defer to the superior courts even if they consider their judges to be imposters.
Dealing with the judges is turning out to be a task trickier than handling the president, and not just because Asif Zardari and Nawaz Sharif view their credentials differently. With two sets of judges each claiming legitimacy for itself, any executive or legislative intervention to settle rival claims can lead to internecine conflict which surely would further impair the image and writ of the highest court of the land when the avowed purpose is to strengthen it.
Alternatively, if all judges were to be accommodated (which is being hinted as a possible solution) it would hold Pakistan out as a country which has little rule of law but the largest supreme court in the world. (The US has just seven and India 11 judges). It would also position the court centre-stage vis-à-vis partisan politics.
The contention of Mr Zardari that the independence of judges can be ensured only through a constitutional package, and that of Mr Nawaz Sharif that a National Assembly resolution would suffice, are being greeted with general cynicism because of their past attitude, particularly of Nawaz Sharif, towards the judiciary. (Recall the time when one bench of the court was issuing a writ and another was cancelling it, and Rafiq Tarar’s night flight to Quetta with a bulky briefcase!)
The need of the moment is for the legal community to join hands and take the judiciary out of the clutches of party politics while putting its own legal house in order.
In a situation of conflicting opinions where Fakhruddin Ebrahim feels that the judges ousted by Musharraf’s emergency order can be recalled by a mere resolution of the parliament and an equally learned but less involved Hafeez Pirzada contends that it can happen only through a constitutional amendment, the lawyers and judges can surely decide amongst themselves what is just and in the best interest of their profession.
Having done that, the bench and the bar together can propose the constitutional protection that the judiciary needs to be independent at all times and in all situations, especially when approached by a coup-maker for the cover of legitimacy. They have to be wary of politicians who speak of judicial independence only when their own freedom and assets are threatened.
By taking their affairs into their own hands, the judges and lawyers would save the liberal forces (represented by the PPP, PML, Pagara’s FML, ANP and MQM) from falling apart and looking for allies among the religious radicals. That would amount to giving them the oxygen that they desperately need now when they are in their death throes.
It is hard to guess what Mr Zardari’s dream of a changed and just nizam (system) is. But when on the ground the law and order situation deteriorates, economic hardships grow, terror spreads and the writ of the government shrinks by the day, his promise of a new system gives little comfort. Pir Pagaro’s prophecy that whatever system exists will collapse in three months is indeed scary. The fault, Zardari sahib, lies not in the system but in the people who run it.
Pakistan’s best years of peace and reconstruction were under the 1935 Government of India Act which the great Jinnah told some doubting army officers at Quetta in June 1948 was ‘our constitution’ which they must study and respect. Since then, we have witnessed a series of systems, one extinguishing the other, but no peace. Jinnah then was terminally ill and Liaquat Ali Khan ran the country — imagine, with just seven ministers.
Source: Dawn, 4/5/2008