An Unexpected Birthday Gift

Ferozk,

A very good article which is properly backed up. I can understand why some have grown weary of your usage of Marbury v. Madison 1803... any discourse not colored with verses of the Holy Quran seems to lose focus for some here...

The problem is that too many people are looking to see whether Musharraf will stay or go as the definitive marker of whether this revolution is successful or not. Musharraf`s regime and its end may well be decided elsewhere... but this is actually a matter that will have a long lasting impact on Pakistani polity and you are probably the only commentator who has expressed this. Whatever happens... and my guess is that Musharraf will retreat and things will go back to normal for the time being... judiciary has already become independent in my view. Jawad S Khawaja resigned ... needless to say whoever the ruler ... military or civilian... it might not be easy now to go after the Supreme Court...

Also... it kind of reminds me of what Saima Shah said in one of her articles a few months ago... when she predicted that Pakistan was ripe for democracy. In a way, the Punjab-dominated Pakistan has finally evolved to that critical mass where the right amount of bourgeoisie and the right amount of middle class has thrown up enough educated people who no longer want arbitrary military rule....

You are the on the dot about the secular nature of this debate. A word of caution though... when revolutions reach that important phase, we`ve learnt from Iran, populace also becomes susceptible to be hijacked by reactionary extremist forces... this is precisely why I was extremely happy to read Benazir`s statement in which she vowed to continue the protest but keep MMA out of it...

-YLH

Feroz writes <<< However, the real reason behind the separation of powers, be it in the American constitution or any other constitution including Pakistan’s, is not to balance power as much as facilitate a sense of political compromises between the three branches of government. >>>

Extreme naivety from a political illiterate. There can be a thousand division in the government that by definition can be said to encourage compromise but when only ONE class and one group of a particular social type fills all sections that ``compromise``, then it is already a case-closed before any discussion begins.

What is completely missing from this analysis, which is quite superficial (with sprinklings of worship of Western names and all things Western as is the case with all FR Khan articles) is the fact that the public at large was largely disconnected and missing from this ``struggle``. How that can then be construed as a victory for constitutionalism or democracy is nonsense. It was a power struggle, and as HP correctly points out, in no power struggle can you ignore the role of the Pakistan Army. Where I disagree with HP regarding the factions of the army is that in my opinion this was also the American dominated group, which is much larger than Musharraf and their plan was not the overthrow of the goverment. That could have been achieved by other means and blamed on the Talibans.

Once the Americans grow weary of one of their slaves, they usually send him various signs to bring him back in line, this was just one of those signs.

Re: ballukhan # 8

Good points!

However, you must remember that the over reliance on Islamic interpretation in Pakistani politics and constitutionalism is only 30 years old and before that, despite the Islamic preamblic nature of the constitutions, the country maintained a separation between the theocractic and secular issues.

Ciao

Re: bjkumar # 10

Your point # 2 may be valid, but in this case there is a geninue sense of public empathy with the cause of justice in the present crisis and not with the personality. The personality of the chief justice is accidential and even if an understanding is reached, it does not mean that the legal community will stop their protests. The main argument being made, in the legal profession, is for the lawyers and the judges to unite as one against the government.

Your assessment of an understanding between the judiciary and the executive is reasonable, but bear in mind that the lawyers in Pakistan had never supported Musharraf and if the justices go ahead, with a rapprochement, it will divide the legal community in Pakistan over the issue. There is an internal debate talking place in the Pakistani legal community and once that is settled, we will see what the next steps will be in the future.

This is the begining of a process and as a process, it will take its own time to gel into a clearly defined argument and thus, we should not be expectant of instant results or resolutions to the crisis simply on the basis of past experience.

Point # 3 fails in the sense that judiciary did, in reality, help the process by which the executive-military did garner power. As mentioned, it is not the question of what happened in the past, but what will happen tomorrow that is prompting the legal response. Then is there is the issue of a public image dimension to the crisis and through it, the judiciary wants to regain the lost public trust in it as an institution. In the present situation, though the past is good indicator, events suggests that it will not be entirely abided with because no matter what happens, the executive did over reach itself in the crisis and it was stopped from its fiat by another branch of the government on a constitutional basis. Yes, in the past the military got away with its ingresses, but this time it did not and that has made the difference.

The context is that though the military-executive might still be powerful, it has been forced to compromise and the crisis will end in a political-legal compromise and it is the nature of the compromise that will slowly strengthen the idea of separation of powers. The hope is that the present crisis will not necessarily result in the loss of military-executive power but in the arrangement of a balance of power, between the three branches, that would gradually evolve a constitutional separation of powers in Pakistan.

Separation of power does not mean an equality of power but it implies a constitutionally accepted ``inequality of power``. In this case, a debate is fermenting in Pakistan in which the constitution is the fulcrum and has not been sided lined from the start. This is a difference.

Point # 4 is well reasoned and that is why, we cannot predict with certainity what the final outcome might be because the nature of debate is still being decided. Everything hinges on the framing of the arguments; if it is kept to a constitutional limit and the politicans are not allowed to politically dominate the arguments and thus, distract from the main constitutional points, then it will not fizzle out.

The government would love to see politics dominate, because than it would be in a better position to counter-arguments and discredit them, but as things are at the present; the government has no constitutional case. This is why the legality of the reference is more important than the charges and if the arguments are made on the legality of the reference, then the government will have a hard time to justify its actions.

The legal understanding of the issues is that president, has the right to file a reference under Article 209 of the 1973 Constitution, but to the Supreme Judicial Council which then files the reference against the individual itself through an ``in-house proceedings``.

In this case, and what the laywers are complaining is not the right of the president under Article 209 of the constitution, but that that Supreme Judicial Council did not file the reference, but was given the reference. The procedure is that the judiciary and not the executive asks the individual to step down, but it does not mean that person becomes non-functional.

The chief justice of Pakistan, despite the filing of the reference is still the chief justice of Pakistan, but since the reference has been filed against him, it means that he cannot preside over his own triall. It was for this reason that an acting chief justice was nominated and that too, the third most senior, because Rana Bhgwandas, the senior most judge, was out of the nation. Once Bhgwandas returns, he would become the acting chief justice of Pakistan and preside over the case.

Acting chief justice does not mean a replacement of the chief justice in a judicial sense, but in an administrative sense so that the there is a head of the Supreme Court to oversee its functioning and still maintain its heirarchical organization. The word ``acting`` implies a transitory post and not a permanent one.

Point # 5 does not account for the fact that in a crisis situation, it is not the time factor but the ability manage a crisis that make the difference. The military-executive can have all the time in the world and they will be successful if they can manage the crisis and influence and even control the flow of events and if they cannot, then all the time in the world will not help them.

Point # 6 assumes that the mindset has not changed, but the act of resisting when appeasement would have been the norm, does suggest a shift in the mindset.

Point # 7 is a very realistic question when and where power politics are concerned. As said before, it is not the number of divisions but their ability manage the situation that will be the critical nuance.

Point # 1 does not even apply in Britain or the United States let alone in Pakistan! lol

Ciao

Power is indeed addictive – so nobody wishes to give it up. I hope the optimism that you display bears fruit and brings about a brighter tomorrow for your land – but here are the reasons which make me doubt that seriously:

(1) Blundering never cost anybody his or her job over there – except when (as in the case of the ZAB) it also cost life itself!

(2) The personalities in this agitation which are being presented as exalted are in reality not so – and will cut a deal as soon as the opportune moment comes – when the cost of agitation exceeds whatever “gains” it may be yielding.

(3) The khakis – inspite of the “soft” exterior represented by the Mushy, still have a dictatorial mindset, do not value civilian leaders, and do not trust either the average citizen or their leaders with any real decision making. The judiciary does not really have a “choice” in the matter of the “doctrine of necessity” – those justices who had the choice already exercised it by resigning a while ago. The khakis did not exactly wait for the judiciary to validate them through simple prayers and did not really “heave a sigh of relief” when that happened – they simply made sure it did.

(4) The agitators are unclear in their own minds on where they wish to end up – so there is no “vision” thing – which means that it must fizzle out.

(5) Everybody needs to eat – and the khakis are the only ones who do not have to worry about the loss of wages! So the clock is against the agitators. As far as the “embarrassment” of no lawyers representing the government is concerned – one only has to look across the border during days not long gone when a certain government had little trouble finding surgeons for amputating the hands of thieves.

(6) The underlying mindset has not changed.

(7) Like was said in the case of the Pope – how many divisions do the lawyers command?!

As said above, I hope there is reason for optimism. But….

“The present crisis, strangely enough, also offers the best hope for a revival of constitutionalism in Pakistan and perhaps, it offers the only ray of hope to restore the writ of constitutionalism in Pakistani politics.”

It is a false ray of hope. Feroz, you are misreading between the lines.

First despite all the hoopla, the Chief Justice position is a political position. A justice can only remain a CJ, if he is politically aligned with the ruling group. Sajjad and Iftikhar’s dismissals (almost) show that they had lost the confidence of the ruling cliques.

I would like to point this out to you that the kind of judicial activism Iftikhar was involved in cannot be tolerated in any country and any system. Supreme Court Justices are not supposed to take suo moto or Sua Sponte actions on political and administrative issues. I am not aware of any such precedent on such regular basis by any apex court in any modern state, the state of Pak constitution notwithstanding. The Supreme Court CJ tried to encroach upon the jurisdiction that was not his constituently. So the responsibility for the constitutional crisis, if any, rests with him and not with the President.

The mush admin made some serious errors in dealing with the CJ. They should have dealt with him in the very beginning and should have warned him that he is exceeding his authority. Since they did not do it, the CJ was encouraged to continue his activism thinking that his supporters in the admin are influential.

The whole thing is political and should only be addressed in political terms and not in constitutional terms. A little background check would reveal that the CJ was supportive of the President. His personal ambitions and the kiss up personality that has been revealed clearly show that he was not taking some principled stand but was fronting for some other group.

Let me explain that: In Pakistan, several administrations have been undone not by the outside opposition but by the inside opposition. After an admin is in complete control of the outside opposition, it is confronted by the inside opposition which, by its very nature of being the insider, is stronger than the outside opposition. Liaquat Ali, Ayub Khan, Yayha, Bhutto and Zia all lost power to internal opposition within the ruling elite.

Pakistan Army despite presenting one face on issues has different groups that vie for power. The current crisis clearly is a result of conflicts and contradictions between the pro Taliban/ Pro Jamaat Islami group vs. the Pro US group within the admin/Army.

The issue that triggered the whole saga is missing Jamaat Islami/pro Taliban workers. Jamaat Islami was the force behind the protests and the Jamaat/Taliban supporters within the army tried to put pressure on the government through CJ’s activism.

This, imo, was an attempted coup led by yet another Supreme Court CJ who was fronting for a group in the army thinking that he (CJ) enjoyed a complete constitutional protection. CJ Sajjad attempted that during Nawaz era when on behalf of the army he tried to subvert the civilian government. Nawaz lacking the powers that Mush enjoys by virtue of being a General used his political workers and responded back by attacking the Supreme Court Building which resulted in Sajjad’s dismissal.

I am surprised that you missed the attack on the Geo offices. That attack was the integral part of this attempted failed coup.

Remember how a case was made against Nawaz for the Supreme court attack, Mush will face the same charges of disrespecting the CJ and attacking the institution even though the supreme court institution has been clearly used for an attempted coup.

FR,

Let us be forthright in exposing the essential tension within Pakistan`s polity that needs to be resolved. The essential contradiction is between having a modern liberal democracy and an ``Islamic Republic``- once you accept the proposition that the state constitution and its laws are to cohere with the Shariat or ``Islamic Principles`` then you are trying to put yourself in a position where every thing in the state is dependent upon the dominant interpretation of what Islam is.
Once you accept this principle of trying to ``Islamize`` everything from historiography to nuclear physics then you end up by making the mullah jamaat the custodian of your constitution and your life world.
Once, you understand this problem then the only solution in order to de-legitimatize the mullahs is by turning Pakistan into a ``Secular`` republic much like Turkey.
I believe that is the ONLY solution. Rest is all pandering about and beating around the bush.

#1 {``So pardon me for preferring to use a toilet for my droppings, instead of this board.
``}

Atif2,
Why start now, PPP hatemonger? Nothing in the past has stopped you from defecating all over Unplugged and even on some boards on FP.

I was thinking about some of the scenarios that might emerge in the aftermath of this dabacle:

1. CJ and dicatator strike a deal, the judicial council declares CJ of not guilty of any charges and in return CJ confirms dictator`s ``election`` thru the current assemblies and takes oath from him thus legitimizing dictators ``election`` by an ``honest and brave judge``.

2. CJ is reinstated as CJ but refernce against him is used as a leverage. CJ would perform his daily functions just as an (under) impeached public oifficial does. But then he is forced to take a leave of absence because of ``health issues``, while Bhagwan Das takes oath from dictator.

3. CJ is ``found`` guilty of all the charges in the refernce and judicial council forces him to step down. There will be strikes and violent protests but dicattor will try to control them through torture and ``disappearnces``, anti-terrorism courts and draconian MPO 16 type laws and thus setting an example for future uprisings.

4. Dictator attacks Iran on April 16 at 6:00 am, as Russian intelligence agencies are predicting to divert attention from domestic issues. In a series of ``public` speaches dicattor has already started paving the way for ``just in case` scenarios viz a viz Iran.

5. CJ is assassinated by an alqaeda suicide bomber.

6. Government discover secret swiss bank accounts that CJ had.

7. Government discovers that CJ was mastermind behind 9/11 attacks and murder of Bob Woolmer.

8. CJ is reinstated but relationship between him and dicattor remain tense. At the time of oath of dictator CJ refuses to oblige. In this case Americans will encourage another corps commander to put Mush in protective custody and Americans decalre it a ``black coat revolution`` and victory of democracy and all that shit. It is gonna be a Ayub-Yehya kind of scenario. Mush would be happy that he was spared getting exploded in a C-130 and then he would leave for medical teatment to Bahamas.

9. Musharaf ``captures`` Osama.

Re: # 1

never be impressed with someone just because they drop some famous names. it shows mr. feroz is possibly well-read. nothing to be intimidated by. or are you intimidated because they are western intellectuals?!

i hope not!
the whole basis of western education systems is to question the authorities.

revolutions these days all have some color associated. this one should be named kala-coat revolution (if it materializes).

Re: # 1

Please state your views on the article. I would have quoted Faiz or Iqbal, but decided against it. If I had really wanted to a quotation from Faiz to lead the article, the most appropiate would be a few lines from his poem, ``Hum Dekhege``. :)

Ciao