Pakistans Permanent Revolution

In the early 1940s, the British Royal Indian Army requisitioned a house in Lahore cantonment owned by a prominent lawyer-politician. The lengthy legal proceedings on the issue continued long after partition. Meanwhile the lawyer politician, better known to us as Mr. Jinnah, became the first head of state of the newly formed dominion of Pakistan. Immediately upon assuming his power, Mr. Jinnah backed out as a party in the matter, refusing to pursue or even correspond on the issue, primarily to ensure that his position as head of state would not interfere in the due process. It was five years after his death that the matter was brought to a satisfactory resolution in which his sister was compensated. Contrast this with the pathetic state of affairs that our nation state is in today and see how far down we’ve fallen from the ideal.

In Pakistan today, the executive pressure is not an oddity but the norm. Judges, often appointed on ad hoc basis, know that they hold office at the pleasure of the executive and would be dispatched if they dared to show an independent streak. Pakistan’s current revolution is about reclaiming Pakistan’s constitutional and democratic origins. At stake is the future not just of Pakistan but the greater Muslim world as well, because if democratic institutions can sustain themselves in Pakistan, a nation central to the destiny of the Muslim world, we might see similar beginnings in other predominantly Muslim nations, ending the drought of thought and creativity in the intellectually morbid state of the imagined Ummat.

In Pakistan the judiciary first became the rubber stamp for every unconstitutional decision of the executive branch of the government in the 1950s. If ever the saying that the road to hell is paved with good intentions was true it must have been with the first Chief Justice of Pakistan, Muhammad Munir, whose sense of fairness was beyond doubt but who can be held singularly responsible for the sad mess Pakistan’s constitutional history has been. Not once but twice he took the decision that legitimized the executive’s abuse of power. The first decision was in the famous Maulvi Tameezuddin case in which the then Federal Court of Pakistan refused to uphold a subordinate court’s decision to reinstate Pakistan’s constituent assembly and the second decision was the Dosso v. Federation of Pakistan case in which he legitimized military rule in the name of the cursed doctrine of necessity which has blotted Pakistan’s constitutional development.

This tradition of judicial spinelessness continued in Pakistan facilitating three martial laws and the judicial murder of atleast one prime minister till last week when it was brought to a crashing halt by the actions of one brave justice, Chief Justice of Pakistan Iftikhar Hussain Chaudhry who stood up to the executive and told him to go to hell. To start with the suspension of the Chief Justice was unconstitutional. Article 209 (5) of the constitution under which the reference was filed against the Lord Chief Justice does not envisage removal. It speaks of a reference alone and the judge who the reference is filed against can continue to preside over his or her cases. To add insult to injury, the Chief Justice was kept a virtual prisoner in his own home and even manhandled by the police in full public view.

The military regime had grossly miscalculated because what followed was no less than a revolution, but of a more permanent nature. Upset at the army’s assault on judiciary and then free press a few days later, Constitutional minds, legal practitioners and journalists have taken to the streets. The difference between a constitutional agitator and a rabble rouser is that a constitutionalist only takes to the street as a last resort and does so when pushed against the wall. The events of Lahore and Islamabad did exactly that and today more than ever the nation is united in its struggle to restore a constitutional order as that alone is the irreducible minimum of the Pakistani people. At the heart of this issue confronting the predominantly Muslim nation, Justice Rana Bhagwandas on whom all eyes are focused. That he is a top Pakistani judge with impeccable integrity who happens to be a Hindu makes these turn of events even sweeter. Apparently the prospect of having a Hindu chief justice has not gone down well with the Islamists, some of whom have tried to turn a purely secular issue of judicial independence into a theological issue. And yet the people of Pakistan understand that is Bhagwandas alone with sufficient credibility and acumen to resolve the constitutional crisis that has brought the entire Pakistani judicial system to its knees.

The outcome of these events should not be judged by whether or not it will dislodge Musharraf. Admittedly there is much good that Musharraf brought to Pakistan but his phenomenal blunder now threatens to undo all of this. It may or may not do so but what has come about is something much more long lasting, ie the separation of powers finally in the Montesquieuesque sense. Whatever happens this is probably the most positive outcome of the entire episode. Consider the turn of events that will likely follow: Independent judiciary means an independent election commission which in turn means free and fair elections. Free elections would mean that secular and mainstream parties like Pakistan People’s Party and Pakistan Muslim League as well as smaller ethnic parties like Awami National Party and PukhtunKhwa Milli Party will be the clear winners whereas the religious alliance of MMA willl be the clear losers. Expect a PPP government headed by Benazir or in the interim period one of her close aides till she is able to return and get elected to the National Assembly.

This is a prospect that will be welcomed in the Western capitals as well. For long now Pakistan’s Military rulers have scared the west with the prospect of radical religious elements taking over the country in case of free elections. Such an outcome is unlikely when one considers that Pakistanis have always elected moderate and secular leaders and have rejected the clerics at the polls. Extremism and radicalism does not emerge because of democracy but in its absence. The only election religious parties won any seats in was held under the enlightened moderate Pervez Musharraf himself. The United States of America already seems to have lost its faith in the soldier-president’s ability to rein in the Taliban and other elements running amok, in their view, with Pakistan Army’s blessing.

This is not to say that Musharraf is not committed to weeding out the Taliban and leaving behind a legacy of a progressive and modern Pakistan. I am convinced that in his heart of hearts, he is a true patriot and a good man. But he must understand that the time for transition has come and this is a boat Pakistan cannot afford to lose. First he must restore the Chief Justice and then he must allow presidential elections through the newly elected legislature in early 2008, following which he should honorably leave the office of the president and salute the new entrant as his Army chief, a position he should continue to hold till he can ensure the continuity of the democratic dispensation and till he can weed out the pro-Taliban and anti-national elements, if any, within the Pakistan Army. This is that rational exit strategy which might preserve the good that he has done and salvage his reputation in the annals of history, but I fear almost 8 years as Pakistan’s top man has numbed the General’s mind to logic.