Qaisar's Blog

A developed country manifests itself in both cerebral and physical terms and in so doing the country establishes a criterion for us to compare with it the development status of any other country. On the development index, Pakistan lags behind on several planes. The term ‘developing country’ is a misnomer in the context of Pakistan; in fact, Pakistan is ravaged by the blight of underdevelopment.

There are several causes and effects of Pakistan’s underdevelopment but a few are noteworthy.

First, (national) security consciousness hogs most available space. Immediately after the formation of Pakistan, the country’s priority shifted to becoming a security state rather than a welfare state. The shift in priority was noticeable because the primary objective of the country’s formation was not an armed empowerment of the Muslims of the subcontinent but to have a piece of land where the interests of Muslims could be secured. At first, fortifying state security was declared a means to achieve that objective but afterward the state security became an end in itself.

The shift initially made the military a partner to the political regimes but later on the shift graduated the military to the position of a surrogate for any ruling regime. Further, the shift has been gobbling up a major chunk of the budget.

After May 12, 1998, it was expected that the priorities would be normalised to keeping a qualitative defence force only – to actualise the ‘minimum deterrence’ doctrine. Moreover, it was expected that room would be provided to social sectors such as education and health to make up for the lag in their progress.

Unfortunately

Military coups are a besetting problem Pakistan is faced with. So far, the democratic age of Pakistan has been reduced to about half of Pakistan’s total corporal age. People generally expect Pakistan to behave democratically in commensurate with its physical age. That may not be possible. Nevertheless, there are a few other impediments engendering the juvenile democratic polity of Pakistan.   

First, the slogan of extra-constitutionalism is becoming a political ethos. The slogan to provoke the ‘patriotic generals’ into taking the reigns of power into their own hands is again being marketed. In this regard, the slogan chanted by Altaf Hussain of the MQM a few weeks ago has been aired again but with certain modifications by Shahbaz Sharif of the PML-N. They have vocalized the slogan of extra-constitutionalism without even realizing that Pakistan is repetitively cursed with derailment of democracy. Their remarks are tantamount to disenfranchising the people of Pakistan. To contrive a method to disabuse politicians of such hideous ideas is still an uphill task for the democratic minds of society.

After the recent general elections and restoration of the higher judiciary it was thought that such kind of slogans would be dumped but that seems not the case. Old habits die hard. Pakistani politicians have to reconsider the perils of declaring the military a counter-balancing force to parliament. Militating against the democratic norms has already cramped the progress of Pakistan. Apparently, the repetitive democratic failures have not yet chastened the Pakistanis.

Second, the religious parties active in the political domain are refusing to learn the way the political path be tread. Since 1973, they have been either acting as a pressure group practising ‘mob politics’ to unnerve a sitting government or becoming a default option for a military dictator to bank on to seek legitimacy. General Zia ul Haq exploited their talent to his advantage and even General Pervaiz Musharraf could not avoid capitalizing on their utility despite the fact that he was peddling his enlightened moderation theory. Further, the religious parties are not appreciating the point that in the recent general elections, the electorate rejected overwhelmingly relevance of even those religious parties that took part in the contest.

The left-over space apportioned to them all was streets. The religious parties that opted out of the electoral exercise are now also utilizing the full potential of streets to stay politically relevant. Several issues ranging from imposition of the reformed General Sales Tax (rGST) to the immunity available to Raymond Davis have offered the religious parties ample legroom to spew acerbity to raise their credit ratings to be cashed in on in the next elections. In fact, these issues have gathered storm to an alarming proportion owing to the efforts of one religious party to outclass the rest of its competitors. Nevertheless, rumours are afloat that constituting of a neo-IJI is in the offing. Certainly, to dredge it up, the midnight jackalism is the final hope of the religious parties for salvaging them from the abyss of oblivion.

Third, the concept of liberty falling under the head democracy is considered to enfold a mandate of imitating western values of liberalism. In certain sections of Pakistani society, it is firmly believed that an unchecked and unadulterated supply of democracy may construct effects detrimental to the Islamic and Asian values customary in the society. In that way, the moral aspect of liberty is accentuated and the resultant danger posed by liberty is appraised. Unfortunately, it is not extolled that the kind of liberty democracy broaches liberates people from the shackles of feudal lords and autocrats.

Moreover, it is also not realized that democracy-driven liberty tenders freedom of thought and action. If the societal environment surrounding the advent of liberty is full of Islamic and Asian values, the ensuing freedom may evoke a kind of response different from the one educed in the West. In fact, fewer are the reasons to be apprehensive of democracy and its attendant liberty.

Fourth, there is a dearth of the informed voters. On the other hand, the uninformed voters are in abundance around and can be spotted by their displaying parochialism and sentimentalism; to them illiteracy offers fuel to the proverbial fire. Much is being talked about the hidden – lethal – potential of the youth to bring about a revolution in Pakistan mimicking the one sweeping the Arab world. Given the high reproduction rate in the country, the consequent youth bulge in the demographic façade is now a bogy for any sitting government. The point is to make happen a revolution is one thing but to cause a democratic change – through the electoral system – is altogether a different proposition. Apropos of the latter, the youth bulge blighted by illiteracy is nightmarish for the country.

Fifth, during an electoral process, a considerable number of voters tend not to vote for or against contesting candidates of their electoral constituency. The voters opt to stay at homes and act as bystanders. Those voters are considered a ‘silent majority’ which is the bane of the political parties but a hope for the military dictators to prop them up. It is told that the intelligence agencies exact the feedback from the silent majority. The same feedback, however, is fed to the empty boxes of referendum to acclaim an overwhelming victory of a military dictator against all supposed opponents. The final opinion of General Zia ul Haq about the silent majority is yet unknown; nevertheless, under the spell of presumptive politics, General Pervaiz Musharraf is still hopeful of teaming up with the silent majority to rout the politicians of all hues in the forthcoming electoral episode.

In short, in Pakistan, multilayered obstacles make the itinerary of democracy thorny.

(The article is published in The News on Friday March 11, 2011.

What the meeting between the trio (President, Prime Minister, and Army Chief) has brought about. Nothing but self-assurance! All of them were somehow a part – either a recipient or a facilitator – of the notorious NRO which is now ruining the impression of democracy in the country, the Islamic Republic of Pakistan.

Think of General Musharraf. He is now proclaiming his popularity in the masses (who have even no access to clean water not to say of his page on the Face Book) and is being revered in some circles as a great politician-cum-saviour of the country. Recently, he tested the waters of his popularity by collecting a substantial amount of money for relief of the flood-hit victims. Musharraf has a history of doing sham things: it would be great if he could also let all know when and where he is spending the fund so collected.

The unprecedented flood has laid the administrative flaws open is a point scored by the anti-NRO group. That means, if there were no floods, the anti-NRO situation would not have developed. Nevertheless, retrospectively, it seems the President Asif Ali Zardari was right, perhaps, in dilly dallying restoration of the pre-Nov-3 (2007) judiciary. If there were no such judiciary, the ravages caused by the flood would not have haunted the Zardari regime; consequently, the meeting of the trio would not have taken place. Everything is relevant.

The odd around is the bench of the Supreme Court working on its own (pre-Nov-3) agenda to make society as corruption free as possible. Nawaz Sharif finds no reason for not supporting the court. Nawaz is also trying to stay relevant politically by asking Zardari of bringing the looted money back to Pakistan. ‘If you do that, the people will forgive you’, says Nawaz.

The army is in the real hot seat how to disown the NRO legacy of the Musharraf era and reclaim the legitimate place in society. The other day, the attack on Omar Cheema, a journalist, was a vivid manifestation of frustration on the part of the intelligence agencies to mute the voices against their parent institution. If that method could serve the purpose! Almost all the writers are condemning the NRO and with that come the name of Musharraf, a military general, and that is how the military as an institution is maligned. The army has to do some introspection to devise ways and means to stop its head from taking any such step that could become a nuisance for the rest in the future. Not every head of the army can seek exile in London as Musharraf did. In a way, through the itinerary of the NRO, Musharraf tarnished the image of the army.

Whether the victims of the flood are stranded or not the military has no right to take the reins of the government in their hands – to seek sympathy of the masses. In the Musharraf era, when the earth-quake jolted Pakistan, why could there take place no change of government? No one heard even any rumour to that effect. It is like if the Air Blue plane crashes into Margalla hills, the administration of Islamabad should be ousted: there must be some plausible relationship between cause and effect. The point is the civilian governments should not be made insecure about their survival in the face of any natural calamity hitting the country. Secondly, the army is a revered institution but subservient to Parliament (being one of its executive arms). The role or patriotism of the army is not an alternative formula catering to the opinion of people. To criticize the government and bring it down on its lackluster performance is the constitutional and democratic role of the opposition. If the institution of army is to take care of the common people in that way, what is the role left with the opposition? Similarly, if the army is to judge the performance of the ruling democratic regime, what is the rationale for any general elections?

Whether any more natural catastrophes visit Pakistan or not, whether the flood-tax sours inflation or not, the democratic tenure of the current government should be given a full chance to complete. It is still a wonder of this age how come the crop of Pir Pagaros is finding its political relevance. By just appearing on TV talk-shows and announcing mergers, can the PML-Q revive the lost prestige? Perhaps, not! The crime of the PML-Q was of heinous nature. The party kept silent in public on almost all the crimes committed by its mentor, Musharraf. Nevertheless, politics in Karachi may take a new turn in near future: one is still to find if there was any relevance between the statement of Altaf Hussain on asking the ‘patriotic generals’ to take hold of the government under the command of the Supreme Court and the planned murder of Dr Imran Farooq in Edgware, London. The problem is with the direction of the accusing fingers to be pointed at. One theory is that the murder is to construct homogeneity within the ranks and files of an ethnic party holding monopoly in Karachi. Another theory says that the murder is to achieve the end result of creating political heterogeneity in Karachi – in order to shift the rural base of a national party to urban Sindh. Karachi is going to be the next battleground for political struggle. The ANP should beware of that.

Nevertheless, the conclusive fight between the pro-NRO and the anti-NRO forces is yet to begin. Till October 13, there is a respite from the pain and not relief

Hardly had the Pakistanis finished ruing the day to have stood silent to the invitations to the military (by politicians) to jump into the political foray when the statement of Altaf Hussain appeared. Blatantly, Altaf invited the military to impose a kind of ‘sub-martial law’ (with the consent of the Supreme Court) to chuck out politicians. In his statement, Altaf called the military generals ‘patriot’ and politicians ‘corrupt’. His statement was essentially anti-PPP in nature.

Instead of attenuating the statement afterwards, Altaf stuck to his ground. The members of the MQM followed the lead and started appearing on various TV channels to defend the wisdom – which is still obscure to many – hidden in Altaf’s statement.

After the general elections in 2008, it was expected that all the political parties would work for strengthening democracy and its related institutions but that expectation was frustrated when Altaf uttered the controversial statement and thereby belied his own democratic credentials.

It seems that Altaf has overreached himself. Altaf must be aware of the fact that the MQM is an ethnic party which has yet to adopt the demeanor of a national political party. Quintessentially, the MQM is a party of a provincial stature carrying an obvious ethnic tinge and projecting the rights of the Urdu speaking people residing in urban Sindh and that the party is enjoying monopoly at the national level because of its urban concentrated voters: had its voters been dispersed in the rural areas of Sindh, the MQM would have been diluted to insignificance.

Nevertheless, the undemocratic flair in the statement of Altaf is not unexpected because the MQM worked in collaboration with – and under the auspices of – the former military General Pervaiz Musharraf. Perhaps, for Altaf, the change over to representative democracy was unfruitful. The PPP might be a tough giver-and-taker than that of the Musharraf’s junta. Further, Altaf might be feeling more comfortable in working with the military generals than the civilian democratic leaders.

Sometimes, it seems that the spirit of Pir Pagara – to be a blue-eyed boy of the military establishment – takes possession of a few politicians. Some call the phenomenon as Sheikh Rashidism. The poor Rashid kept on relying on the goodwill of the corpse commander of Rawalpindi than his own political knack and, consequently, spoiled his political future. In the general elections of 2008, Rashid was not rescued by any quarters. To extend the argument further, along with his own, Rashid also botched up the political career of his nephew whom he was promoting as the next of kin.

Many still wonder the political acumen of Imran Khan who agrees to a few portions of Altaf’s statement. Imran seems obsessed with the midterm elections – to secure a place for his party. The people around are still unsure if he could secure more than one seat in any forthcoming general elections. In a way, absence of or delay in holding Local Bodies poll is hiding the political worth of several parties that otherwise declare themselves parties of national stature. It is not only the political manifesto that works wonder during the elections but it is also the political insight that helps a party secure a bargaining position. Imran’s case seems weak at the latter point. Imran must consult Altaf how he manages such affairs.

Imran should be regretting the day he did not join Nawaz Sharif to take part in the elections in 2008. Now, Imran has to wait for the completion of term of the government: no midterm elections. The politicians who are declared corrupt now were, unfortunately and surprisingly, also corrupt in 2008. What is new revelation about them dawned on Altaf? The fake degree cases can actuate by-polls and condemnation (or perhaps punishment) of the fake degree holders. That is it; nothing more than that: not midterm elections at least.

It was not the love for country but the time which was ripe to exploit something to bargain more in Karachi. The history of the MQM is replete with the practices of blackmailing the central government by hurling one threat or another on it. The ANP is already under stress in Karachi for losing its leaders and workers at the hands of ‘unknown’ assailants when the opponent is the MQM.

In a way, the statement of Altaf is an extension of his early utterance: ‘Oey Jagirdara’! But Altaf missed the point that not every statement fetches popularity: some backfire instead. By calling generals to take over and introduce a sub-martial law (with all its connotations), Altaf violated the Constitution (Article 6) and the 18th Amendment supported by the MQM. It is still wonder of this age, why do politicians resort to such gimmicky?

One can argue that Altaf alighted on an opportunity to raise his political stature by snubbing the vaderas (landlords) of Sindh on their (alleged) clandestine acts of breaching the defense of the river Indus to save their areas but putting the lives and properties of the masses (harees) in danger. If such were the intentions, the statement of Altaf might earn some votes for the MQM in the future. Nevertheless, Altaf could have given a better solution to brave the ravages of the flood and could have donated a substantial sum to the flood-hit people of rural Sindh. By so doing, he could have sought more popularity and attention than by resurrecting a Pir Pagara in him. The least is to say that Rashid may also resort to at least one such statement in the future, as for some people the idea of Altaf is contagious – even if not subversive. 

Generally speaking, the statement of Altaf indicates presence of an undemocratic trend in politics. Further, the statement holds potential to sap energy from the democratic vigor of the people. Democracy has already been blighted by such blunders – both statements and the consequent acts. Preserve democracy at all costs!

First proclaim a personality indispensable for the system and then rue the day the proclamation was made. That is, in a nutshell, an exercise carried out by the Pakistanis time and again.

On July 22, the Prime Minister (PM), Yosuf Raza Gillani, announced on the state television that the service of the incumbent Chief of Army, General Ashfaq Pervaiz Kayani, was extended for three years.

The succinct speech left the viewers on their own to find the reasons which prompted the PM Gillani to announce the – hurried – decision of extension of a public servant (subordinate to the Secretary of Defence). The decision could have been taken implicitly for being an administrative matter – though having unavoidable political connotations. Nawaz Sharif has said that he was not taken into confidence on the matter.

In the recent past, the ghost of ‘continuity of policies’ along with the twin spectre of ‘continuity of personalities’ (including oneself) also took possession of General Pervaiz Musharraf until Musharraf was successfully exorcised – by exorcists called, in this case, the lawyers.  

The prevalent spell of democracy had promised to usher in an era of fortification of the institutions rather than personalities: personal qualities should not override institutional norms and practices. That jingle took the wind out of Musharraf’s sail and made him dispensable – even if not accountable. Retention of personalities in the name of continuity of the system was declared tantamount to choking of the system. No one knows for sure the calibre and qualities of the next man in the row – unless abilities and inadequacies are exposed. The next in the line had a right to replace his boss and display his skills; he might be better than his boss.

Against that background, the current turnaround through extension of service of the army chief leaves one dumbfounded. The doctrine of necessity may have abandoned the judiciary – one thought the doctrine might have fallen into desuetude – but it is still around and raises its ugly head here and there.

The saga of Pakistan is also laden with lamenting the strength of one institution at the cost of the rest. There would be no preferential treatment – but that, perhaps, is also unavoidable conduct given the frailties of the politicians dredged up by the system. The crime of producing and presenting fake degrees to the Election Commission to get qualified for the elections has inflicted a demoralising blow on society besides jolting its conscience. People have awakened to the reality that several lawmakers are consequently unqualified (or disqualified) to pass a bill and make a constitutional amendment. In the wake of the fake degrees scam, what credibility of the recently passed constitutional amendment has been carrying is yet to ascertain.

Possibly, the problem is not in personalities or institutions but somewhere else. The prevailing system of democracy was erected on the crutches of the NRO and the related guarantees. The foreign patrons required restoration of political (and judicial) order in the country to relieve the Pakistan army for focusing wholeheartedly its attention towards the western borders. General Kiyani was one of the witnesses to the NRO. Unfortunately, the spanner of the NRO is now cramping the system.

The system has gradually degenerated to the extent that the exalted principles of giving the institutions precedence over the personalities are being compromised and personal objectives are being met in the name of ‘national interests’. Through the announcement, the PM Gillani might be trying to dissemble insecurity lurking in the hearts of the politicians owing to their dwindling credibility, thanks to the fake degrees issue. Secondly, the PM Gillani might be dissimulating the fear that an entry of any new army chief might mean an automatic alienation of the sitting government. The new chief may not be a witness to the NRO and may listen to the Supreme Court, in case the court asks, to get its orders implemented (through the executive including the army).

Disgorging the embezzled money would create deterrence for the depraved. The misappropriated money has to be retrieved from the foreign banks. Without that money, the national exchequer is not going to be doomed, no doubt, but the trend of fetching kick backs in the sale-purchase of the national assets (or the items of national utility) should be condemned.

The country like the US who is fighting the war on terror does not consider an army general, McChrystal, indispensable. When the general stumbled on rules, he was shown the exit door – without faltering. If personalities are considered vital, institutions are demeaned. The institutions which bring up a person to lead that institution should be relied on again to bring another one to perform better. An institution should not look pale in front of a personality of its making. Continuation of policies needs to be linked with continuation of institutions and not personalities. Of course, the policies adopted by General Musharraf have been followed by General Kiyani essentially in the same way. The next chief would not have changed the itinerary to the loss of the stakeholders – both domestic and foreigners.

General Kiyani is a marvellous officer and has been serving the country in a professional way but extension of his service, even if it was consented, is a great injustice to the next candidate for the enviable post, besides an insult to the performance of the institution of the army to surface capable commanders. The same formula is applicable to the institution of the judiciary and the presidency. The trend to look beyond one’s prescribed limits of time should be quelled.

Pakistan has finally entered the phase when the concept of independence of the judiciary is going to be defined not only in terms of what the (higher) judiciary can do independently but also in terms of what space the (higher) judiciary leave vacant for the government (the legislature and the executive) to operate. 

At the discussion forums, the argument ‘parliament is supreme’ has been reduced to ‘parliament is sovereign’ and the ‘constitution is supreme’. That is a good omen: things are settling down to normalcy and concepts are getting clearer. It took some Pakistanis a plenty of time to appreciate that the constitution was a product of a constituent assembly and that the constitution so framed gave birth to the three pillars of the state: parliament (the legislative assembly), the executive and the judiciary. Within the same context, another concept emerged: no pillar of the state could trespass on the limits prescribed by the constitution. 

The executive need not lament on the balance of power sans them as in the parliamentary form of government, envisaged in the Constitution of 1973, the executive is answerable to the prime minister who is both legislative and executive head of the state. That is what the relevance of the argument ‘parliament is supreme’ could be: parliament is supreme vis-à-vis the executive and that is how the third pillar of the state, the judiciary, stays free, separate and independent. 

In a way, the discussion seems weird because more than sixty years have been passed since birth of the country but the discussion on such a fundamental topic has erupted now. The concept of sovereignty of parliament was ensuring independence of parliament primarily of the clutches of the executive. In Pakistan, the past witnessed encroachment of the executive upon the legislature (violating the concept of sovereignty of parliament) by cultivating another concept called doctrine of necessity. Given the spells of martial laws (high-handedness of the executive) and the complacency-cum-complicity of the judiciary in the past, it is not too late to debate the issue and reset the future itinerary of constitutionalism.   

A legislative assembly cannot tinker with the basic structure of the constitution devised or agreed on by a constituent assembly. Majority of the Pakistanis – using common sense – seem agreeing to this statement. But the question is Article 239 (5) says that “no amendment of the Constitution [1973] shall be called in question in any court on any ground whatsoever” and Article 239 (6) says that “for the removal of doubt it is hereby declared that there is no limitation whatever on the power of parliament to amend the Constitution”. 

One of the reasons of presence of Article 239 (5 & 6) could be that the term ‘basic structure’ of the constitution was not mentioned explicitly in the Constitution of 1973. Secondly, no one imagined that the judiciary would tear down its attire of complacency-cum-complicity and would instead start defending its domain as a separate and independent pillar of the state. Thirdly, in the past, no one challenged the Article in any court of law. 

A layman definition of the basic structure could be that basic structure comprises the principles on which the building of a constitution is erected. In other words, what objectives a constituent assembly intends to achieve by drafting a constitution are components of the basic structure.

In the case of Mahmood Khan Achakzai vs. Federation of Pakistan [PLD 1997 SC 426], the Supreme Court threw light on components of the basic structure after considering the Objectives Resolution when read with other provisions of the Constitution. There are six components need to be highlighted in this regard: federal structure of the state, parliamentary form of government, sovereignty of parliament, independence of the judiciary, protection of the minorities (and their rights) and Islamic colour of the Constitution. Interestingly, in the Objectives Resolution, both sovereignty of parliament and independence of the judiciary are written together. 

In fact, every constitution of the world is developed on certain principles called the basic structure – and to achieve certain objectives, again as enshrine in the basic structure. In the case of Pakistan, the mother of all the future constitutions was Objectives Resolution. To elaborate the point further, if the Constitution of 1973 is considered redundant and another constituent assembly is elected with a mandate to frame another constitution, Objectives Resolution would again serve as the provider of principles to erect the constitution and objectives to achieve by framing the constitution (in that sense, the Objectives Resolution should not have been made a part of the Constitution). Secondly, the Constitution of 1973 is not the last and permanent one but Objectives Resolution is indispensable. Thirdly, had Objectives Resolution not been a part of the Constitution through the 8^th Amendment, significance of the Resolution could not have been minimized. Hence, only the presence of Objectives Resolution is important: whether or not it is a part of any constitution is irrelevant. Similarly, whether the case Mahmood Khan Achakzai vs. Federation of Pakistan is taken into consideration or not, significance of the Objectives Resolution cannot be overlooked. 

Now the question is can Article 239 (5 & 6) overrule the principles laid down in Objectives Resolution. In other words, can a legislative assembly pass an amendment amending Objectives Resolution? The answer is in negative. It is pertinent to mention here that no subsequent constituent assembly can alter Objectives Resolution. Mere presence of Objectives Resolution itself imposes a limit on the domains of both the legislative assembly and the executive. Hence, Article 239 (5 & 6) needs to be reviewed by Parliament: the article is in contravention of the spirit of Objectives Resolution. 

Before bringing the 18^th Constitutional Amendment into effect, opinion of the higher judiciary pertaining to the mode of appointment of judges was not sought. That is an example how the judiciary was looked down on. The attitude of Parliament (ruled by any political party) cast a spell of disaster on the future of the judiciary. It is a high time that the boundaries and the powers of the judiciary and the legislature were discussed and demarcated especially in the light of Objectives Resolution. The concept of independence of the judiciary closes any door from where any political or executive interference may take place.

With all its connotations, the slogan ‘Pakistan First’ may start hovering over Pakistan once again – Pakistan must be first but not in the way projected and acted upon by the former military dictator General Pervaiz Musharraf – with the advent of Musharraf’s party, the All Pakistan Muslim League (APML). By that currency, a sister political party of the PML-Q, the PML-N and the likes has emerged. Musharraf should have named his party as ‘Pakistan First Party’ instead of using the traditional name of the Muslim League.

According to General (r) Rashid Qureshi, a time-tested devotee of Musharraf, the yardstick of Musharraf’s popularity is his following on the Facebook where Musharraf has amassed two lakh fans – mostly the youth – to prop him up. Realities on the ground, on the other hand, do not predicate on the Facebook. Those who used to chant slogans to get Musharraf elected ten times do not offer Musharraf any slot in their party, the PML-Q. For them, Musharraf is a spent cartridge – who is now only relevant to those who have no place to stay relevant. On arrival of Musharraf, Dr Sher Afgan may stumble on a new lease of life.

With the name of Musharraf, harsh memories visit one’s mind. Musharraf’s rule had radiated the message that he was the source of law and that compliance with the law was mandatory on everyone except him. Musharraf’s concept of the rule of law was to comply with the orders issued by him and not what had been actually laid down in the books of law.

Musharraf’s stint in power is remembered for emitting a stink of general contempt for democracy. In the beginning of the year 2008, after Musharraf had imposed the second martial law of his regime on November 03, 2007, Musharraf visited London and uttered publicly that democracy was not suitable to the genius of the Pakistanis. It is yet to be seen how Musharraf will present his concept of democracy to be palatable to the ‘genius of the Pakistanis’ once he is back.

Musharraf may come back but with only one skin – the actual skin sans the khaki casing he donned at Kakul in his youth. In the field of politics, his original skin will be tested for presence of the melanin called tolerance to a conflicting point of view.

Musharraf’s rule burgeoned politicians who believed less in personal abilities and more in seeking backing of the establishment. Sheikh Rashid used to defend Musharraf on the assumption that the establishment in Rawalpindi would help him win the election every time he contested and that no true representative democracy could surface in the country. Instead of abilities and virtues, reliance was placed on the potency of the establishment besides one’s power of sycophancy. Musharraf’s rule is also remembered for gathering around him those who used to tell lies in the public.

It is not yet known what lessons Musharraf learnt when the PML-Q rooted out of the political scene in the past elections despite its performance in public works before the elections. Nevertheless, Musharraf kept growth of representative democracy stultified for almost one decade. Musharraf promoted the exercise of holding phony elections and exploited the weaknesses of the religious parties or alliances like the MMA. Musharraf tried to erect a surrogate system of democracy that mocked the spirit of democracy.

Will Musharraf be able to recompense for the loss of the precious lives of Nawab Akbar Bugti and the innocent girls at the Lal Masjid? Both incidents changed the socio-political landscape of Pakistan in their wake. Further, those two episodes alone gave birth to a new breed of reactionaries who are still disgruntled with the state.

Musharraf, as an army chief, was constitutionally ineligible to take part in political activities for two years since the date of his retirement was what the Supreme Court was trying to convey him on November 02, 2007. By now Musharraf might have sloughed off his bad habit of not listening to the sincere advice of the Supreme Court.

From the statements issued by another spokesperson of Musharraf, Barrister Mohammed Ali Saif, it seems that Musharraf is still enmeshed by two obsessions: he is the first and final bulwark against corruption and secondly he enjoyed a big following among the middle class of the Pakistanis. The same two fixations are driving him to avow himself a saviour yet another time. Musharraf used the arms of the state including the institutions like the NAB to prolong his stay at the helm of affairs. Musharraf also incurred wrath of the middle class by trying all ways and means to suppress the lawyers’ movement. The civil society abandoned Musharraf when his real face came to surface on the tragedy of May 12 in Karachi.

Guess, how many times Musharraf might have read the document, the NRO, which could not ensure his stay in the presidency but could only offer him a guard of honour. Musharraf must have smarted from the tragedy of his ceremonial eviction from the country called self-exile. Along the Edgware Road, London, famous for its cafeterias and Arabian food, the commando inside Musharraf must be battling against the vicissitudes of life. After all, for how long the series of lecturing can continue. On his way back, Musharraf would be wrestling with Article 6 of the Constitution.

Musharraf must reconcile with the fact that Pakistan can manage its affairs without him. Musharraf may be a person of choice to bank on for another military dictator down the line of dictatorship. In that sense, Musharraf has to wait for another spell of military dictatorship to assert his bearing. Above all, there is an urgent need of reclaiming the youth who do not differentiate between a democratic leader and a dictator. Democratic orientation of the youth must be improved qualitatively. The youth had better stay away from even the shadow of Musharraf. In the meantime, Musharraf has to sip qahvas with Arabian desserts and rue his impulse which made possible the impossible day of March 09, 2007.

How many times has it happened in the history of Pakistan that an additional session judge is suspended by the Supreme Court for granting illegal bail before arrest to a provincial minister allegedly involved in the kidnapping of a girl with the help of the officials of his subordinate ministry?

The kidnapping took place in Kohat, the minister was the Provincial Minister for Prisons, Mian Nisar Gul, and the judge faced suspension was Asghar Ali Shah. Subsequently, the minister also tendered his resignation.  

Before the Supreme Court, Asghar Ali Shah, the judge, confessed that he was under pressure to grant bail owing to the ‘political nature’ of the case. That is, a judge of the stature of a session judge was subjected to pressure to commit an illicit act to favour those having political clout – but after overlooking the rights of the deprived. The judge could have withstood the pressure, as Justice Khalil ur Rehman Ramdey pointed out during the court proceedings, but the penchant of the politicians for infusing their awe in the heart of the public by violating the law is also a living day reality. There are politicians who never miss availing themselves of any such opportunity. That is how the gulf between the ruler and the ruled widens; that is how respect of law is mandated for only the weak sections of society; and that is how the underprivileged get fed up of the state. Suicide bombing is one of the manifestations of the anti-state psyche developed after getting detached from the caring hands of the state.

It was the suo moto notice taken by the Supreme Court the other day to debunk what lied beneath the case. The case also exposed two more points: firstly, the major beneficiary of the independent judiciary was the deprived and weak sections of society; and secondly, the mode of appointment of judges should be kept away from the politicians.

The judiciary is also criticized for its decisions depicted as pouching on the province of the executive in the name of judicial activism. But who will listen to the wails and woes of the poor and deprived devoid of any clout? If the executive (or the legislature) had the ears, the apex court would not have felt the need to take a suo moto notice: it was both complacency and complicity of the officers of the judicial department to perform an illegal act in order to gratify the minister.

To extend the observation of Justice Khalil-ur-Rehman Ramday further, not only Asghar Ali Shah, the Additional Session Judge, should have withstood the political pressure but also the officials of the Ministry of Prison. Both should have refused the Minister, Mian Nisar Gul, to act beyond their legal limits. But that refusal required moral courage which was quite scarce around. As the saying goes, all the police are not the motorway police – which abide by only the dictates of law.

If the context is Pakistan and a sitting minister is asking for an out of the way favour, the subordinate officers find a chance to reassure their services by compliance in return of which they may be offered chances to stay clung to the minister for the rest of his life. Both Mian Nawaz Sharif and Asif Ali Zardari have plenty of such devotees around – giving birth to a chain of aficionados down to a peon and converting the public offices to personal fiefdoms. Pakistan has yet to taste the fruits of democracy where the rights of the poor are undeniable and where the minorities are free to live and follow their faith.

The case of Mian Nisar Gul is also a perfect example to answer why the politicians should be provided no space to interfere in the judicial matters even through the mode of appointment of the judges, the administrative route. (Article 175-A inserted through the 18^th Constitutional Amendment envisages the appointment of judges through a judicial commission followed by approval of a parliamentary committee.)

Arguing against the petition filed by the Supreme Court Bar Association (SCBA) challenging the new procedure of appointment of the judges to the Supreme Court, Barrister Wasim Sajjad said (in the reply filed on behalf of the federal government) that the Constitution envisaged parliament as a sovereign body and, as spelt out from its preamble, that sovereignty over the entire universe belonged to Almighty Allah alone and … this Authority was to be exercised through the chosen representatives of the people through parliament. On the contrary, in practice, deeds of the chosen representatives are that they try their best to prove themselves above the law.

When a public representative and the state machinery are a party to an issue, what recourse that poor girl could have adopted. Had there been no independent judiciary around, no one outside of Kohat would have heard of the case. By submitting to the illegal dictates of Mian Nisar Gul, both the officials of the Ministry of Prison and Asghar Ali Shah, the judge, abetted in the crime committed by Mian Nisar Gul.

By taking cognizance of such matters, the superior judiciary is strengthening the relationship between a citizen and the state. Further, if the politicians start playing their roles in appointment of judges, it is feared that the membership of the courtiers might be extended to the judiciary.

In fact, more than the judiciary, independence of the judiciary is need of the poor and deprived sections of society who hold no clout in society and who have – perhaps no – inalienable rights to protect.

What should be the educational criteria to contest elections is a topic of the TV talk shows now-a-days. Both the major political parties, the PPP and the PML-N, gave tickets to candidates who had been condemned in the past for presenting fake degrees to contest elections.

No doubt, the slab to have a bachelor degree or not has been removed through a court decision (by the Dogar court) but what about propriety: one should tell truth in front of the Election Commissioner while filing one’s nomination papers. Hence, the issue entails two dimensions: first, what educational background is appropriate for those who may become legislators, and secondly, whether the would-be legislators are allowed to resort to deception and lies before entering the parliamentary corridors.

The discussion on the fake degrees erupted when Prime Minster (PM) Yosuf Raza Gilani supported Jamshed Dasti, a contestant of by-polls in Muzaffargarh NA-178, and violated the laid down rules set by the Election Commissioner (no developmental package could be announced by any minister when an electoral campaign were in progress).

But that was not the end of the story. It was also reported in the press that the police of the area tried to refrain the other (independent) contesting candidate, Anwarul Karim Barki, from holding a political rally and a corner meeting and that on his defiance (assertion of his political right), the police manhandled him and broke his teeth. It is still not clear under what law Barki could not hold his rally/meeting and why the offenders (the police officers) have not brought to justice.

Pleading the electoral case of Dasti by the PM Gilani reveals that politics in Pakistan is yet to experience a qualitative change. There are two aspects of the issue. Firstly, an educated leadership is required to lead the country. Secondly, politicians with bogus credentials and corrupt past should be excluded. On the obverse side, if unqualified and crooked politicians are kept on adorning the legislature, what kind of law making may take place can be well imagined. Taking the example of Dasti in to account, in light of the decision of the Dogar court upheld by the current Supreme Court, Dasti may be eligible to contest the recent election (which he has won) without having a bachelor degree but what about his past act of deceiving the Election Commissioner by presenting a fake degree (equivalent to a bachelor degree) to fulfil the previous criteria to contest elections.

In the past (from 1989 to 1999) it was observed that the cabinets of the prime ministers were necessarily shrunk to kitchen cabinets. One of the reasons of that trend may be that the prime minister wanted to have tractable and dependable politicians around him but another reason may be that most of the legislators were mere politicians having no knowledge of law, the law making process and the vision of implications of the law (being enacted) on society. So the educated politicians were made the members of the kitchen cabinets to run the state affairs efficiently.

The state craft is a specialized area. The practice of enacting law through presidential ordinances needs to be avoided unless inescapable circumstances are around. A bill has to be tabled, discussed and then passed to become a law. That process requires educated politicians performing the exercise. In a way, the legacy of the (General) Musharraf era bequeathed on the present times to have a bachelor degree as a criterion to contest election for provincial and national assemblies is quite correct. The point is if Pakistan is to make up the deficiency in progress, Pakistan has to take help of education.

There is also a trend to announce that the party has given a ticket to a party worker to contest election. Giving a ticket to a party worker is declared a sign of humbleness of the party leadership and recognition of the efforts of the party workers. Further, the parties propagate that by so doing the party has discouraged monopoly of the affluent and powerful section of society. That may be true but then the question is can illiterate (or semi-literate) people bring literacy to the country or contribute to its progress? Certainly not! That is what the past speaks for itself and that is what the quagmire Pakistan is in.

The voters should also be aware of their rights they are entitled to and the prospects a political leader can bring for them. The fault does not lie only in the political parties but also in the masses who are ready to cast votes in the favour of, say donkey, or anyone carrying the banner of a party. Such a blind trust and stalwart trend devastated democracy in the past and may mar the future of democracy in the country in the future. The end sufferers are not only the political parties (or politicians for that matter) but also the civil society at large.  

Strengthening only the judicial branch of the government is not enough unless the legislative branch is also consolidated. It is not that a politician is obliged to observe transparency in the government affairs after getting elected but it is also that the politician should follow transparency during the electoral process to get elected.

The latest face of the two main political parties, the PPP and the PML-N, is the product of democratic competition (one may call it confrontation) with the undemocratic forces of the country – though their struggle to restore representative democracy remained secondary to the lawyers movement to restore true judiciary. The two parties are not the product of political competition with each other based on performance. That is, in the recent times, it has not happened yet that one political party takes over the other party owing to the non-fulfilment of the electoral agenda of the rival party when it was in saddle or by exploiting weaknesses and failures of the competitor party in the elections. The era from 1989 to 1999 was having a democratic façade but full of interference from the executive to support one political party against the other. On the other hand, the post-2008 era is comparatively democratic and without any external influence. The next general elections can decide how the PPP and the PML-N compete with each other in the elections on the basis of performance. Pakistan needs a democratic system predicated on performance – and not rhetoric.

Can a Pakistani citizen challenge the legislation made by the politicians, the legislators, who get disqualified (and ejected) later on for having fake degrees?

If a politician does not qualify for contesting an election but hoodwinks the voters of his constituency by producing a bogus degree to qualify for elections, the penalty of losing the seat by disqualification is not enough. By the way, what about the legislation in the making of which the politician took part – voted for or against – and which became a part of the Constitution through a Constitutional Amendment? If any such politician is nominated as a member of the parliamentary committee overseeing the process of appointment of the judges of the Supreme Court, as envisaged in the 18th Constitutional Amendment, what sort of judges would be appointed is not difficult to imagine. In this regard, an interesting point is that the scandals of using false degrees are not coming to open through the Election Commission or any parliamentary committee but through the Supreme Court.

But that is not the end of the story. There are politicians who are holding as important positions as the Minister for Law but they are yet to clear their names from corruption scandals. When any such politician would be a member of the judicial commission debating and selecting judges for the Supreme Court, what kind of judges would be sorted out can be well perceived.

That is why Akram Sheikh Advocate is gaining support for his stance against the provision of the 18th Constitutional Amendment that awarded a role to Parliament to look over the appointment of the judges of the Supreme Court. The point is if Parliament is incapable of putting its own house in order what transparency it can ensure in the process of appointment of the judges: how would the politicians coming to Parliament after using the fake degrees or performing other corrupt practices not affect the appointment of the judges is still not clear. Further, it is also not clear how can the judges approved and appointed by any such parliamentary committee or any such judicial commission dare disqualify those kinds of politicians?

Looking from one angle, the provision of the Amendment elaborating on the mode of appointment of the judges is an intrusion into the sphere of the judiciary. In the concept of tri-chotomy of power in a parliamentary form of government, where Parliament is sovereign, the judiciary is independent. The Objectives Resolution which is now a part of the Constitution speaks for that. Justice (retired) Tariq Mehmood may be right that independence of the judiciary is reflected through the court decisions made by the judiciary and not through the mode of appointment of the judges, but the history speaks for a different story. In the past, one kind of appointments introduced one kind of judges who delivered one kind of court decisions which in turn produced one kind of effect. Consequently, there emerged a direct relationship between one mode of appointment of the judges and one kind of effect of the decisions. The Dogar court is one such example.

No doubt, the CoD had envisaged a judicial commission for appointment of the judges, the idea was not only to make the appointment procedure transparent but also to keep the judiciary pro-parliament (and aloof of the military). Nevertheless, the judiciary donned the attire of independence independent of the help of both parliament and the executive: the present judiciary is the product of the struggle and sacrifices of the bar and the bench. On the other hand, the current Parliament (the members) is the by-product of that struggle. That is, it is not that the political struggle against military dominance led to resurrection of Parliament, it is that the lawyers’ struggle to preserve their institution (which happened to be one of the three organs of the State), led to exclusion of the military dictator and inclusion of the politicians who were in exile. Secondly, it is not that the lawyers’ movement yielded fruits after politicians joined them to restore the judges in 2009. It is that politicians sabotaged the long march in 2008 which was about to restore the judges by the show of power and determination of the lawyers. The long march had arrived at the constitutional avenue of Islamabad from across the country. In other words, the lawyer movement suffered a major set back when politicians started manipulating the movement to fetch benefits for themselves. So in the eyes of majority of the lawyers and the civil society, politicians are yet to mature and Parliament is yet to perform its due function. Only passing Amendments does not reflect maturity of politicians.

Transparency in the appointment of the judges is one thing but the chance of political interference in the internal affairs of the judiciary through that mode is a different thing. The concept of independence of the judiciary closes any door from where any political interference may step in. The mode of appointment of the judges devised by the Amendment may open that door: the judicial commission is an opening to expose the administrative function of the judiciary. The door must be closed.

Under the concept of separation of powers, the judiciary is not subservient to Parliament and the executive – both the latter constitute the government. The judiciary is a separate and independent organ of the State. Where sovereignty of parliament is important, independence of the judiciary is also vital: Objectives Resolution guarantees that. So, independence of the judiciary should be ensured by all and by all means. That is what the aspirations of people are and that is what the Constitution demands.