Laptop Warriors: Ayaz Amir presents two pressing challenges to the Supreme Court of Pakistan

< strong>While disregarding pawns of ‘the anti-democracy establishment’ (e.g. Dr Shahid Masood and Ansar Abbasi and other members of the Pakistani Taliban Union of Journalists (PTUJ)) as “laptop warriors” and “media samurais — of whom there are not a few and who deserve the title of Ustad-e-Fidayeen better than any Taliban”, Ayaz Amir presents two pressing challenges to the Supreme Court of Pakistan, i.e., (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.

Folly, not clash of institutions

Islamabad diary

Friday, January 29, 2010
Ayaz Amir

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.

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.


Source: The News

15 responses to “Laptop Warriors: Ayaz Amir presents two pressing challenges to the Supreme Court of Pakistan”

  1. I may possibly be a lone voice in thinking that the case of “missing persons” is the key to the establishment of genuinely free and independent judiciary. Justice Javid Iqbal has said that this case is more important than that of NRO but people have generally been a bit timid talking about it. Hamid Mir’s ‘Jang’ column of 27 January explains why.

    Ayaz Amir’s suggestion (1) has been partially implemented, I think, when the Supreme Court judges expressed remorse – last summer? – concerning their capitulation to Musharraf’s demands the first time round. Suggestion (2) may well be taken up after the conclusion of the “missing persons” case. It is, therefore, of the utmost importance that we give our full support to the SC in this case.

  2. Good article by Ayaz Amir. However, he fails to mention that it was Shaheed Mohtarma Benazir Bhutto who re-initiated the political process and ushered in a new beginning for democracy. For that, and for standing up to the blood thirsty, Islamist Jihadis and their backers, she paid with her life. What a brave person! I doubt we will see the likes of her. She was excoriated by our “civil society” elites for making a “deal” with Musharaf; these elites, who have always been against democracy in Pakistan are deliberately obtuse and could not understand her political acumen or even come close to accepting her superb personal courage. Her brillance and bravery never inspired the oppressive elites; it made them deeply insecure about their complete lack of connection or contribution to the good of the country.

  3. Flaws in the judgment
    By Asma Jahangir
    Tuesday, 26 Jan, 2010

    The Supreme Court (SC) has spoken and the nation must bow its head. The chief justice has asked members of the bar to pray for the judiciary. This too must be respected, as the Almighty alone can rescue those who wish to destroy themselves.

    There is open friction between the ruling party and the court. By not restoring the SC judges earlier and letting Justice Dogar run amok with the law, the government lost face.

    On the other hand, after a historical struggle for establishing the rule of law, the judiciary was expected to be above reproach in a political atmosphere of nepotism and incompetence. Woefully, that was not to be.

    First came the judgment penalising the post Nov 3 PCO judges while ignoring the illegal takeover of Musharraf. This was followed by a host of undesirable suo motu actions.

    Then came a request from the Supreme Court to appoint an ad hoc judge to the bench. The judges case clearly frowned upon such appointments, unless absolutely essential. Article 182 is also clear that such a request is made under special circumstances and needs presidential approval.

    Further, seniority in elevations was ignored. The bar had strongly and rightly criticised Musharraf for letting the chief justice of the Lahore High Court rule the roost, while judges junior to him were being elevated to the SC. Arbitrary appointments erode the independence of the judiciary.

    At the very least the judiciary is expected to be impartial. That too is suspect, as seen in the NRO judgment. Throughout, the NRO judgment has assumed the guilt of those who benefited from it. Courts are bound to presume a party innocent until found guilty. In paragraph 43 the judgment reproduces portions from a book by Benazir Bhutto, traces the reasons for the promulgation of the NRO and concludes that the ordinance had benefited only criminals and corrupt public office holders.

    It then mentions how money plundered by Marcos of the Philippines and Sani Abacha of Nigeria was brought back from foreign banks. Once again, the court jumps to conclusion, glossing over the fact that both Marcos and Abacha were unelected rulers whose downfall did not start with judicial activism. Marcos was overthrown by the people and Abacha’s family was charged with money laundering after his death.

    Throughout the almost 300 pages of the detailed NRO judgment a finger is pointed towards the president — but there’s hardly any mention of the immunity he enjoys under Article 248 of the constitution.

    The SC, through its judgment, confirms that the Government of Pakistan spent Rs660m to Rs2bn to recover $60m laundered abroad. This constitutes an indictment of the institution of the judiciary which allowed these cases to fester for so many years with large amounts of money being spent under its very nose. This amount could not have been spent by Musharraf for his aversion to corruption but for victimising Benazir Bhutto. This lends credence to the PPP’s claim that it alone has been subjected to a witch hunt.

    Throughout the judgment the SC has emphasised Article 62 of the constitution and shown keenness to disqualify holders of public office. While discussing the insertion of Section 33 F in the NAB ordinance, the judgment argues that by avoiding conviction through the misuse of law those with the stigma of corruption attached to them could not become members of parliament.

    Meanwhile, the use of Articles 62 and 63 are justified as they remain a part of the constitution despite being recognised as obnoxious additions by dictators. If we are to turn over a new leaf in our political history, then to plead that that legacy of dictators that suits us will be accepted and the one that hurts us will not is a lame defence.

    Stoning to death and amputation of limbs are valid punishments but their implementation would outrage public sentiment. It is shocking that even some stalwarts of civil liberties defended the use of Article 63 on the premise that it existed in the constitution — a pity that hatred for an individual should drive one to negate all that they painfully fight for all their lives!

    Morality and religion are preached throughout the judgment. Article 227 has received its own share of prominence but the judgment cautions overzealous litigants not to expect the courts to strike down a law on the touchstone of this article.

    The court tries to explain that observations relating to the application of Article 227 and to the “morality and conscience of the constitution” are only supportive observations. Yet, the substantive part of the judgment declares the NRO void ab initio being ultra vires and violative of Article 227 and others.

    The judgment has relied heavily on the principle of maintaining the trichotomy of power. Taking away the powers of the courts to declare people guilty or otherwise would infringe upon the judicial domain. Yet, the SC has challenged the domain of the president to promulgate an ordinance without satisfying the apex court that advice given for its enactment was sound enough.

    It also limits the powers of the legislature for enactments that will not stand the stiff test of law, morality and religion. Oddly, the superior judiciary has not so jealously guarded its domain when civilians are tried by military courts. The SC endorsed the judgment of the Lahore High Court disallowing a petition by a civilian sentenced to death by a military court. As for the others the trichotomy of powers as laid down in the NRO judgment translates into what is theirs is theirs and what is theirs is also ours.

    The NRO judgment cannot be all about the evil in Asif Zardari. It must be seen on its own. It is a reminder of the time when the military’s illegal acts against Nawab Akbar Bugti were being tolerated because the latter was an unsavoury person. A number of well-meaning but misled individuals joined the official chorus in demonising Bugti who was being hounded by the military.

    The nawab was no saint but the manner in which he was preyed upon and eventually killed turned him into a martyr and gave rise to multiple insurgent groups in Balochistan.

    President Zardari, too, is far from blameless but he is not the only one who is so in the system — and he has been elected. His indiscretions ought to be criticised and removing him through constitutional means would not distress too many people. But circumventing all norms of the rule of law to get him would drown us too.

    The writer is an advocate of the Supreme Court and a human rights activist.

  4. what Mr. Ayaz Amir has forgotten is the formation of IJI in 1988 and the purpose for this act of some ISI men three of whom still appear frequently on independent channels. One of these have confessed distribution of money among the pigmies in order to snatch the right of people of Pakistan of voting freely in elections of 1988. The act of distribution of money is no doubt accountable so is receiving of money. Mr. Amir should come forward by resigning from MNA because The so called Quaid of the party he belongs to is the most prominent of those who received money from back channel and so became part of conspiracy agains the Constitution of Pakistan and at least two of his party MNAs also got hefty amountsfrom the same channel. The SC should take up the undisclosed distribution of public money in 1988, which the Brg. Billa has revealed. I am astonished to read about the anxiety of The Chief Justice and some other people on delay in appointment of Judges when the same Chief Justice has been sitting on a decision for the last 10 years.

  5. Oh no, not another one, this time by Ms Jahangir! By now I am feeling thoroughly sick of all the lawyers who insist on giving their paisa’s worth of prejudiced rubbish camouflaged as legal opinion. Stop impeding the work of the judges, please. Give me sensible articles by the likes of Ayaz Amir and Saleem Safi any time.

  6. Regimental messes —Salman Tarik Kureshi

    Tearing up the Constitution, General Zia ended the civilian interregnum of Zulfikar Ali Bhutto. The eleven-year-long darkness of his satanic rule now descended. It was the script of a horror story: pain, public floggings, so many executions, people strung up and hanged on public television

    It is incongruous to hear the names of former Presidents Marcos of the Philippines and Abacha of Nigeria being mentioned in the context of Pakistan today. The first of these suspended his country’s Constitution and declared Martial Law. As a civilian Martial Law dictator, Marcos committed human rights violations and crimes against democracy and amassed a personal fortune that included $ 600 million identified in Swiss bank accounts. His involvement in the murder of a political opponent sparked massive protests and brought on his overthrow in the People’s Power movement that brought Ms Corazon (‘Cory’) Aquino to power.

    General Sani Abacha played major roles in successive military coups and then seized power on his own. His regime was notorious for immense corruption (allegedly $ 4 billion were stolen from his country), gross misuse of power, brutality and murder of political opponents. Declared ‘Thug of the Year’ by Time magazine, he died in 1998. His successor, General Abubakar, realising that perhaps enough was enough, commenced a process that led to a federal democratic Constitution for Nigeria and free and open multi-party elections.

    This commentator fails to see even a superficial similarity between our present ruling government, its numerous failings notwithstanding, and these two absolutist destroyers of Constitutions. In Nigeria, which I happened to be visiting on business at the time of Musharraf’s seizure of power in Pakistan by the military, my friend Maduka Ezikuseli quoted to me, “Even the worst kind of democracy is preferable to the best dictatorship.”

    “When you Pakistanis restored your Constitution,” argued Maduka, “and put elected governments in place, we Nigerians were happy that a Muslim country had renounced military rule. After many long years of watching Nigeria being ruined by a string of uniformed usurpers, we have installed an elected government and parliament here. But you people have chosen to slide backwards.” My African friend’s harsh judgement was in contrast to the views I was to hear from some allegedly ‘educated’ Pakistani professionals and, indeed, from numerous political personalities. Everybody, it seems, had his own idea of the political or administrative goodies that he or she believed the regime of General-cum-Chief Executive Musharraf was going to dispense to the nation. Pakistanis, it seems, had learned nothing from our own past.

    Amazingly, even today, we hear noises just off stage — throat-clearings, as it were, of what could become a chorus of laddoo lovers, celebrating our nation’s next return to regimental rule. Let us quickly look back at the past, before we descend again to tragedy. Or just plain farce. Or something far worse.

    One begins, of course, with the self-proclaimed Field Marshal. Ayub Khan’s regime was noteworthy for its efficiency in governance, when the trains ran on time, for the first and last time in this country’s history. This was of course the archetypal post-colonial military despotism, which many others in Africa and Asia would rush to emulate. Nehru’s ‘neutral’ India was effectively a Soviet ally; therefore, anti-communist US poured its largesse into Ayub’s Pakistan. US academicians like Gustav Papenak and Samuel Huntington became almost oriental in their eulogies. The former extolled the ‘robber barons’ of Pakistan’s business elite who, in collaboration with an increasingly corrupt bureaucracy, built an (albeit heavily protected) industrial base. The latter, more recently notorious for his post-Cold War ‘Clash of Civilisations’ fantasising, acclaimed Ayub Khan as “That Solon, that Lycurgus, that great institution-builder”. In point of fact, few people have been more adept at dismantling institutions than the Field Marshal whose governmental style, although effective, was highly centralised and personal.

    For all his errors, his authoritarianism, his elitist contempt for his fellow countrymen, his near-racist attitude towards the inhabitants of our former Eastern Wing, Ayub is regarded by many with respect. There are still those who regard his time as a ‘golden page’ in our history books. But his achievements (like those of other personalised rulers) did not extend beyond his personal reach. As the country matured, the extent of his effectiveness became inadequate. The edifices he built around himself crumbled. Ayub’s personalised rule was, as Justice Rustam Kayani famously said, similar to the Ghanta Ghar in Faisalabad, which dominated the scene everywhere you looked. Such nation-building institutions as fundamental rights, one-man-one vote, universal suffrage, a sovereign parliament, federalism, judicial independence, etc., were cut down everywhere. The collapse of Ayub’s regime in a massive, near-revolutionary series of protests and uprisings left a vacuum.

    This was filled by General Yahya Khan, whose two-and-a-half years in power were something of an adventure. Dissolution of One Unit, the LFO, restoration of parliamentary government, adult franchise, new education policy, new labour policy, the first general elections — these were heady times, an adrenalin-pumping ride on the roller coaster of a political amusement park. But then the script went sour, the politically dishonest producer lost control. Political adventure disintegrated to disaster: the cyclone, political standoff, military action, massacres, civil war, international war, shameful dismemberment. The calamity approached the scale of 1947 — close to a million dead, ten million homeless.

    Enough of a disaster? There was more to come. Tearing up the Constitution, General Zia ended the civilian interregnum of Zulfikar Ali Bhutto. The eleven-year-long darkness of his satanic rule now descended. It was the script of a horror story: pain, public floggings, so many executions (“I will never exercise my right of granting pardon”), people strung up and hanged on public television, kidnappings, blood, murders, drug trafficking and the weaponisation of society. Intolerance and sectarianism were nurtured and brought to dreadful bloom. Bigotry and violence became national characteristics. There was nothing small about all that was happening. And we are still living with the consequences…Or dying of them?

    And 1999, we came to the most recent of our uniformed institution-destroyers, the last (we must pray) of an illegitimate line. To enunciate the litany of Musharraf’s “reign of error” is redundant. That self-appointed Emperor was transparently without clothes from day one. His period had neither the magnitude of Ayub’s time nor even the great evil of the Zia years. More dangerously still, the country’s very sovereignty was bartered away to terrorists and insurgents. This has all happened so recently! Have we already forgotten?

    It is necessary to mention the successor regimes called upon to clean up the messes left behind by each bout of regimental rule: the governments of Bhutto (1972-1977), Benazir (1988-1990) and Zardari-Gilani (2008 to date), all from the PPP. It is beyond this brief essay to comment on the success or failure of these three governments. Let us simply observe that the first of these brought immense expectations, dreams of building up from “pieces, very small pieces”. The second began as a ray of bright light bursting out of the night of those irredeemably dark years. But the third such, today, what dreams has it brought? What vision does it offer? What hopes and dreams does it engender in the people?

    “Pakistan khappay”…”Democracy is the best revenge”…Are these slogans the stuff of national inspiration?

    The writer is a marketing consultant based in Karachi. He is also a poet\01\30\story_30-1-2010_pg3_3

  7. The detailed judgment has opened three kinds of challenges for President Zardari that could possibly destabilise the system in days to come. As a result of the judgment the president might be compelled to approach the court regarding whether he enjoys legal or constitutional immunity from being tried for any criminal offence during his term of office.

    Another possibility opened by the judgment is whether, under Article 62(F) of the Constitution, Mr Zardari was eligible to be president at the time of his election. Interestingly, this clause, which was inserted by Gen Ziaul Haq, judges the candidate on the touchstone of whether he is “sagacious, righteous, non-profligate, honest and Ameen.”

    It will be a supreme irony if Mr Zardari was disqualified on the basis of this controversial and arbitrary clause. Few elected members of the assemblies can fulfil this subjective criterion, and this is why some prominent jurists, including Ms Asma Jahangir, are openly critical of its invocation.

    The potential for trouble lies under Article 190, under which all executive and judicial authorities throughout Pakistan are to act in aid of the Supreme Court. This is being interpreted by some as giving the apex court the option to ask the army to intervene to get its NRO verdict implemented. Back in 1997, President Farooq Leghari tried his hands at it when Chief Justice Sajjad Ali Shah wrote to the COAS, Gen Jehangir Karamat, to intervene to protect the Supreme Court from Nawaz Sharif’s goons. Gen Karamat refused to oblige, on the basis that the request should come from the competent authority. As a result, Leghari had to resign.

    Firstly, it will indeed be a negation of the successful and protracted struggle of the lawyers’ movement against the Musharraf dictatorship for the restoration of Justice Iftikhar Chaudhry, if the apex court invites the army to move against an elected government, on whatever pretext. Secondly, neither is the government likely to make such a request nor can the military take the unusual step of moving against an elected government, because that will amount to subverting the Constitution yet again.

    Fears have been expressed that, if forced to quit, Mr Zardari could use the Sindh card. With Balochistan already on fire, this could be a big blow to the country’s integrity and stability. In practical terms it is unlikely that the biggest national political party of the country would retreat to Sindh and abandon national politics. In the ultimate analysis, even if Mr Zardari is unable to retain the presidency there is no reason that the PPP, along with its coalition partners, does not remain in power.

    It is another matter if the establishment considers the PPP a “security risk” and is actually conspiring to end its rule. If so, it will indeed be a tragedy for survival of democratic institutions of the country. To obviate such a possibility, no matter how unlikely, Gen Kayani should closely re-examine what is happening on his watch. Notwithstanding the shenanigans of our political elite, there is little philosophical appreciation and understanding for civilian rule within our polity including the intelligence agencies.

    Thankfully, Mian Nawaz Sharif, despite goading from some of his hawkish party men and vitriolic statements emanating from the PPP leadership, has resisted the temptation to destabilise the system. The enormous trust deficit that exists between him and Mr Zardari needs to be bridged, and for that to happen the ball is squarely in the president’s court. Foot-dragging on scrapping the controversial 17th Amendment has become counter-productive, not only for the system but for his credibility as well.

    Mr Sharif should play his role to strengthen the system by entering the parliament, instead of remaining ensconced in his Raiwind estate. He should not miss the opportunity of contesting by-elections due in March. His present detached attitude perhaps emanates from the perception that ultimately power will fall in his laps like a ripe apple and all he has to do is wait. This is wishful thinking, since, if the system goes, Mian Sahib will be the biggest loser.

    Mr Zardari, as president, owes the nation and his party to give a clean and lean government free of corruption and cronyism. Six months back he was provided a list of corrupt ministers by the ISI chief. No action was considered necessary on the basis of the list. According to a media report the prime minister has advised the president that now is the time to act by removing some key controversial figures from their offices. He should heed the advice of his prime minister.

    President Zardari, instead of lamenting the real or perceived conspiracies against him, should be seen to be mending fences both with the pen and the bayonet. So far as the media is concerned, he should not be overtly worried about its role, as a large section of both the print and electronic media is giving a balanced, if not actually supportive, picture of his regime. Public airing of grievances with the army and the ISI hinting at a nexus between them and the courts could prove to be a self-fulfilling prophecy in the ultimate analysis. Hence the need for opening a frank dialogue before it is too late!

    Arif Nizami

  8. Now that the court has done its best to deal with a seriously dishonest and unconstitutional piece of legislation, the NRO, and has handed down its orders, orders with which the executive is expected to comply but is doing its best to wriggle its way out of, it has moved on to other matters, amongst them none so important as the case of the missing persons which has been hanging fire long before that March 2007 day when Gen Musharraf made his irredeemable error in taking on the chief justice of Pakistan Iftikhar Chaudhry.

    A three-member bench, headed by Justice Javed Iqbal, is doing its best to trace the missing persons, allegedly ‘lost’ by the ‘agencies’ of the past military government. It is hearing the petition of the Human Rights Commission of Pakistan and that of the former senator, now transformed into a pliant presidential spokesperson lacking credibility, Farhatullah Babar.

    There is some confusion as to the number of citizens still missing, but whatever be the number they must be traced and their fate disclosed. The agony of their families has been prolonged for far too long.

    We must hope that the two-week deadline given by the court to the government to finally come up with numbers and names is not flouted and that this case will be decided as announced. It is a tough call — the ‘agencies’ are set in their ways. Can they afford to and will they agree to come clean?

    What must be asked is does any government have the right to whisk its citizens away in the dark of night and make them disappear? On this, in the present and past circumstances with the curbing of terrorism and its perpetrators being one of the country’s foremost predicaments, there may be differences between the ‘agencies’ and the people, but it is up to our adjudicators to now heed the people rather than those who rule in the name of democracy but have little to do with that happy form of governance.

    The adjudicators have a tough job as no ruling clique of this country, past or present, has been able to tolerate an independent judiciary as their tactics and mindset are geared towards the bully-boy form of dealing with matters political. Having great respect for the third editorials of this newspaper of record, that of Jan 28 dealing with the subject of the missing persons is a must-read. The subject is the present conflict taking place in the Peshawar High Court over the non-cooperation by the ‘agencies’ in providing information to the court relating to the missing persons. What is written applies equally to the Supreme Court.

    “The court felt that its authority was being defied when some people allegedly held by the intelligence agencies were not produced before the judges on their orders. In the eyes of the judiciary this is a constitutional transgression.” Such was the situation under the former military government and such is the situation now that democracy has found its way into Pakistan.

    Going somewhere, or nowhere?
    By Ardeshir Cowasjee
    Sunday, 31 Jan, 2010,-or-nowhere-110-hh-07

  9. The ‘Get Zardari’ agenda has led the opposition to give different interpretations to Article 248 of the constitution that stipulates blanket immunity to the president from all kinds of criminal proceedings. The well-known partisan interpretations are (i) the immunity does not apply to the cases registered before the assumption of office; (ii) court proceedings can be initiated and the court can pass a judgement but the judgement may not be implemented as long as a person is holding the presidency; (iii) the SC can waive the presidential immunity as provided in the constitution; (iv) the constitutional provision does not restrain the government of Pakistan from resuming the cases against the president in foreign courts., i.e. the Swiss courts. Some argue that Zardari’s candidature for the presidential elections of September 2008 has become questionable after the SC judgement of declaring the NRO as unconstitutional from the beginning. Therefore, they argue that his election as president should be declared illegal. An appeal on this issue has already been filed with the Election Commission of Pakistan.

    No matter what the Zardari adversaries argue, there is no easy constitutional option available to them to get rid of him. Any deviation from constitution through the SC or the military would have extremely threatening implications for the future of civilian and democratic process and increase inter-provincial tensions. Three provincial assemblies have expressed confidence in Zardari. The Punjab Assembly, dominated by the PML-N, is the only provincial assembly that refuses to do so. Further, the ‘Get Zardari’ campaign is stronger in Punjab than in any other province. The PML-N has increased pressure on the government on the implementation of the SC judgement, especially some action against Zardari, and the new appointments in the SC and the Lahore High Court as recommended by the chief justice.

    The current polarisation between the government and the opposition has nothing to do with the concerns and problems of the common people. If we make a content analysis of the speeches and statements of the political leaders of all political parties, most of these are focused on what can be described as elite politics.

    Given the challenges faced by Pakistan mainly due to religious extremism and terrorism and the troubled economy, the government and the opposition need to pay more attention to these issues. Other issues that need immediate attention are Pakistan’s increased dependence on foreign economic assistance, declining exports and foreign investment and reduced industrial output. All these factors have negative implications for the lives of the ordinary people.

    There is a need to bridge the gap between the preferences of the political elite and the concerns and problems of the common person. The greater the gap, the more insecure is democracy. If the current political trends continue, this gap is likely to increase and, as the political elite continue to pursue their self-serving partisan agenda, the possibilities of an institutional clash cannot be ruled out. This will cause a major institutional breakdown beyond the scope of the constitution.

    Dr Hasan-Askari Rizvi is a political and defence analyst\01\31\story_31-1-2010_pg3_2

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