Retrieving Democracy?

What has left most in a state of shock is the continuity in economic policy. The democratically elected government has not reversed a single major policy of the previous Pakistan Muslim League-Quaid (PML-Q) government presided over by "dictator" Musharraf. The status quo remains; privatisation and liberalisation (including reduction of subsidies) will continue.

Where the coalition tinkered with previous policy by emphasising dialogue rather than a military response to the Taliban, the political compromise crafted by its junior partner, the ANP, is blowing up in the government's face. The Taliban are bent on continuing their armed insurrection, giving lie to liberals' myth-- that an elected government would enjoy greater political credibility in dealings with the extremists.

While President Musharraf launched military operations against armed extremists, the political opposition and liberals in one voice pilloried him as an American stooge prosecuting America's war in Pakistan. They turned a deaf ear to the President's repeated explanation that hewas fighting Pakistan's war. New Prime Minister Prime Minister Yousuf Raza Gilani hasmeanwhile blithely U-turned and declared "Extremism and terrorism are our own problems. This is our own fight".

After one hundred days, the widespread perception is that the PPP-led coalition government is "dysfunctional"; that the country "is heading towards a political meltdown. It has fallen into a state of non-governance."

In desperation, Ardeshir Cowasjee faulted President Musharraf for failing to use his full dictatorial powers to rescue the country. "His job should have been to seek out, rear and nurture young, fresh, unpolluted, able and honest men and women and establish them in politics as his successors. That is what, as a good dictator with unlimited powers, he should have done. It is all too late." We do not know whether or not he could have groomed a fresh leadership. But the fact is the democracy activists harried the President virtually to death; they pestered him about his uniform and holding elections and in the end denied him the time and political space in which he may have built a new national dispensation.

Before the February 2008 general elections, both PPP and PML-N while sitting in Opposition duplicitously heaped almost every economic woe on the President and his PML-Q government and shrilly accused them of mismanagement and incompetence. Most democracy activists-- including members of women's and human rights organisations, journalists, writers, lawyers and assorted professionals-- who are generally known as "liberals" joined the strident anti-Musharraf chorus.

The PPP and PML-N are the dominant partners in the coalition government. As prices of fuel and food continue to rise, now they are telling the people the reality: that inflation and economic problems are due to "structural factors", that is, their causes are invariably rooted in global trends and forces that are largely beyond the control of the present government.

But, as Ejaz Haider perceptively observed, "the common man, raised on a steady diet of government-bashing by the erstwhile opposition, refuses to accept the reality…[he] now wants this bunch to correct the situation by adopting the right policies." To cover up the government's policy vacuum, the Prime Minister began finger-pointing at President Musharraf: "dictatorship", he alleged, "was causing problems for elected representatives". Nevertheless, while the liberals shiftily demurred, Prime Minister Gilani (like President Musharraf before him) appealed to the nation "to give time".

What about the democracy project?

"We have to go through bad democracy to reach good democracy", intoned a member of Pakistani judiciary the other day. That was his self-serving gobbledygook to justify why two unelected politicians, PPP's Asif Zardari and PML-N's Nawaz Sharif, who have no constitutional position and are not accountable to the people are charting the destiny of the country. He viewed with equanimity, for example, the Law Ministry's announcement that the constitutional reform package had been approved by Zardari, who is not a part of the government.

Most liberals are maintaining a deafening silence. They had breathed fire at President Musharraf for "truncating" democracy and "unconstitutional" actions. Human Rights Council of Pakistan's Asma Jahangir had emailed the world condemning the President. Another activist-lawyer Hina Jilani materialised outside 10 Downing Street demanding justice from the erstwhile colonial master. But these protagonists of democracy are standing mute while the two unelected politicians are setting about the grotesquely feudal exercise of wieldingstate power without holding either representative or administrative positions in government.

If -- it is a big IF -- ever there was a democracy project, the liberals are surely helping to derail the same.

What about the two main democracy objectives?

Following the general elections, liberals assiduously reinvented Zardari and Sharif as "democrats". Ayesha Siddiqa enthusiastically dubbed the polity a "democracy in transition", presumably under the leadership of the two unelected politicians who represent only themselves. Self-aggrandised another analyst, Tanvir Ahmad Khan: "Let there be no mistake. We are resurrecting a state that all but perished".

Liberals' selective amnesia helped them to sweep under the carpet their own perceptions of Zardari and Sharif in the not so distant past. Almost seven years ago, liberals had cheered Ayaz Amir's rhetorical questions: "Does any newspaper-reading man in Pakistan doubt Benazir's and Asif's guilt? Does anyone think they got no commission from the Swiss firm, SGS-Cotecna? Does anyone doubt the financial acumen of the then ruling couple who turned Islamabad into an open auction mart where every deal, no matter how outrageous, was on offer provided the right palms were greased?"

Neither did liberals dispute Amir when he recalled "the longstanding love affair between GHQ and the Sharifs (the Sharifs having been discovered and groomed for great things by General Zia himself, Lt-Gen Jillani, Lt-Gen Hamid Gul and a whole line of minor geniuses in ISI)…The common factor between both parties is gangsterism and corruption. Shahbaz Sharif resembled nothing so much as a Mafioso don. What does Asif Zardari look like? In any Godfather sequel he can easily get a part.".

What's more, democracy activists do not wish to be reminded they had joined the vast majority in the country in October 1999 to welcome Gen Musharraf's overthrow of the democratically elected Prime Minister Nawaz Sharif. As Rifaat Hamid Ghani documented, "there is no doubt the ouster of Mr Nawaz Sharif…was welcomed, and the primary reason was the constitutional amendment Mr Sharif was seeking (and which politicos like Mr Kasuri and Syeda Abida Hussain had endorsed) that united civil and moral legislative and executive inquisitorial powers in the prime minister's office, in what was touted as the paradigm of a true amir. The common Pakistani, as distinct from those gracing the treasury benches, had no truck with twisting religion into justifying totalitarianism. They could see the way elected parliament was leaning and the military takeover was a happy release from Mian Nawaz Sharif's emerging fascistic theocracy".

It staggers the mind that democracy activists, liberals or whatever nomenclature they choose for themselves seriously expected a democracy dividend from so-called "democratic forces"-- principally, the PPP and/or PML(N) government.

Not surprisingly the activists soon tripped on an ironic political twist. The two major tasks they undertook with an eye to forcing President Musharraf out of office turned into acid tests of the democratic credentials of their preferred elected coalition government.

The first task was to create that pillar of democracy -- an independent judiciary. Most activists, obsessed over their antipathy to the President, swallowed the PPP and PML(N) politicians' lip service to that hallowed institution. But the same politicians have an odious history of unbridled corruption and authoritarian abuse of power; and they clearly intend to once again loot and rape the country. Those liberals, who opportunistically propped up Zardari and Sharif dredged up another justification: that PPP and PML(N) would willingly allow an independent judiciary to exist that could arrest their own avaricious and predatory politics. This has not happened and very likely will not happen.

The second task they took up was to reinstate approximately sixty dissenting judges of the Supreme Court and four higher courts, who ceased to hold office after refusing oath under President Musharraf's 2007 Provisional Constitutional Order (PCO). Liberals boomed the "historic" 9 March Burban Declaration, signed by Asif Zardari and Nawaz Sharif, to reinstate the judges as a "serious setback" to the President. The reality, however, turned out to be very different.

Both Sharif and Zardari have had at best spotty relations with the judiciary. When the Supreme Court summoned Sharif for contempt of court during his second tenure as Prime Minister (1977-99), the investigating judges were forced to abandoned the contempt proceedings and run for their lives when attacked by goons allegedly unleashed by the "democratic" Prime Minister.

And it stands to reason that Zardari, humiliated by the incarceration he suffered at the hands of several judges, is understandably not keen to give them a leg up. Indeed he has repeatedly dodged the issue of reinstating the judges, particularly the former Chief Justice Iftikhar Mohammad Chaudhry, who may re-examine the validity of the National Reconciliation Ordinance (NRO) under which President Musharraf amnestied Zardari, the late Benazir Bhutto and many others.

In fact Zardari proved quite adroit. He did not reject reinstatement outright; Sharif would have exploited that to discredit him and the PPP. Rather he proposed an 80-point constitutional amendment that inter alia provides for judicial restoration, knowing full well there isn't a snow ball's chance in hell of the fratricidal politicians reaching consensus and mustering the requisite parliamentary majority to pass it into law. Through this procedural sleight of hand Zardari appears to stand by the Burban Declaration but in fact has ensured reinstatement will not see the light of day.

Predictably, the Declaration's 30-day deadline expired at the end of April without reinstatement and the extended 12 May deadline too passed uneventfully. In keeping with political theatre, Zardari and Sharif each lustily blamed the other for the failure. And to keep the PML(N) off balance, PPP's Mr Raza Rabbani floated a political balloon: he claimed "the ministry of law is working on a new formula for reinstatement".

Tehrik-i-Insaaf Chairman Imran Khan naively intervened to help Zardari out of his predicament. All those who are now campaigning for Justice Chaudhry, said Khan, would request him in the spirit of "reconciliation" to ignore the NRO once he is reinstated. "I assure Zardari on behalf of all of us", effused Imran Khan, "that we would request the CJ not to reopen the NRO. We are prepared to ignore this crime of the century in the larger interest of democracy." And, alluding that the judiciary is politicised, he emphasised: "in the special circumstances the people of Pakistan were prepared to…allow Mr Zardari to keep his unearned billions." In other words, he assured Zardari that the judiciary would condone corruption "in the larger interest of democracy"!

Not surprisingly Khan could not impress Zardari with his pathetically unenforceable assurances. So he naively beseeched Sharif "to move a resolution in the national assembly for the restoration of judiciary to test the parliament's sincerity with the cause of an independent judiciary." Sharif naturally ignored Khan.

The President of Supreme Court Bar Association and leader of the lawyers' agitation, Aitzaz Ahsan, also pitched in. He launched what he probably imagined is a sophisticated pitch.

At a press conference in Washington DC, he was queried if a restored judiciary could undo the NRO and revive corruption cases against Zardari. Ahsan delved into the history of the "de facto doctrine"-- from the Texas military courts of 1921 to the judgments of the Pakistani courts following the November 2007 Emergency-- and added: "What judges might or might not do, I don't know … they may or may not review the NRO and reopen the corruption cases…There is a de facto doctrine (to deal with such situations) as you cannot reopen everything."

And Ahsan helpfully opined the judgment that definitely must be rescinded is the one that "perpetuates the alleged usurper…so the only judgment that ought to be reviewed is the one that justified [President Musharraf's] Nov 3 decree." And he emphasised: "It may or may not be possible to do so in the NRO case."

In short he, too, implied that the judiciary is politicised since he offered Zardari a deal: support judicial restoration and in return the judges would look the other way and not re-open the NRO and instead would in effect lunge at President Musharraf's jugular. Is this the best the lawyers could do to ensure the rule of law?

Again, Zardari was not impressed. After all, if NRO's architect President Musharraf is brought down, it is very likely he too would go down with him.

The All Pakistan Democracy Movement (APDM), however, was blunt. It employed what could be termed blackmail democracy. The APDM "warned PPP co-chairman Asif Ali Zardari of exposing what it called his corruption of billions of rupees if he failed to restore judiciary to its pre-emergency status." So the APDM also seems confident that if Zardari supports reinstatement then, in return, the politicised judges would keep the lid firmly closed on that Pandora 's Box-- the NRO.

Lest we forget, all this to cajole and prod into action two unelected, unrepresentative politicians.

Worse still, activists and especially lawyers who are championing the judiciary's cause have turned a blind eye to the controversial track record of the dissenting judges. In their unholy haste to corner President Musharraf, they slurred over the fact that former Chief Justice Chaudhry and several other dissenting judges had been on the Bench that unhesitatingly validated Gen Musharraf's 2000 PCO to provide legal cover for his takeover in October 1999; and the judiciary continued to earnestly back the General's dispensation during the following five or six years. Indeed Justice Chaudhury unblushingly accepted his elevation to the post of Chief Justice during the President's watch.

Why, then, did approximately 60 members of the judiciary refuse oath under the 2007 PCO? As one of them-- a High Court judge -- glibly explained to us, the judiciary rubber stamped the 2000 PCO but rejected the one President Musharraf promulgated seven years later because, he alleged, in the interregnum the judges went through "a process" of maturation and became more aware of their constitutional responsibilities.

Without a doubt one must welcome the judiciary's effort to dig, though belatedly, an independent furrow. That could indeed be a welcome departure from more than five decades of subservience to the political establishment. As Hussain H. Zaidi noted, "the apex court was called upon to adjudicate on the legitimacy of the 1958 martial law regime in The State versus Dosso and Others. The court…headed by Justice Mohammad Munir and drawing inspiration from Hans Kelsen's doctrine of necessity, held that a successful revolution or coup d'etat was an internationally recognised method of changing a constitution. Hence, the Laws (Continuation in Force) Order 1958 promulgated by Gen Ayub constituted the new legal regime from which all legal instruments and institutions including courts derived their validity and legitimacy."

A few judges who resisted the executive's interventions during the intervening five decades were invariably penalised; and it is by no means clear whether they sought to strengthen judicial independence or were caught up in personality conflicts with the executive.

In the event, the judiciary as a whole remained under the control of the executive, especially in Gen Zia-ul-Haq's martial law regime. Consequently most judges have been inexorably politicised through their willingness to accommodate demands of the political establishment, which includes the succession of military rulers.

The inevitable question that comes to mind is: how come in 2007 the judiciary re-discovered the wheel?

One plausible reason is that the politicised judiciary had gone along with the 2000 PCO because Gen Musharraf's takeover enjoyed near universal political support within the country.

So the uncharacteristic stiffening of the judicial spine against the 2007 PCO has perhaps more to do with the political perception that President Musharraf by then was unpopular. Was the judiciary again playing at politics? That seems to be the case. Indeed if the horse deal the President of Supreme Court Bar Association offered Zardari is anything to go by, the judiciary is as usual neck deep in politics.